Explanatory Memorandum to COM(2008)467 - EC legal framework for a European Research Infrastructure (ERI) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)467 - EC legal framework for a European Research Infrastructure (ERI). |
|---|---|
| source | COM(2008)467  |
| date | 15-07-2008 |
Grounds for and objectives of the proposal The legal framework for a European Research Infrastructure is designed to facilitate the joint establishment and operation of research facilities of European interest between several Member States and countries associated to the Community R&D Framework Programme. It is being developed in response to requests from the Member States and the scientific community, because the available national and international legal forms are not fully adequate.
General context Since the EU Commission published its Communication 'Towards a European Research Area' in January 2000, the idea of a common European Research Area (ERA) has been the guiding principle for all Community R&D measures and a central pillar in attaining the research goals of the Lisbon Strategy. The 2007 ERA Green Paper 'The European Research Area: New Perspectives' identified a number of key areas where effective action through partnerships between Member States would have the potential to deliver significant gains for Europe's research system and help to create a 'fifth freedom' - the free movement of knowledge - in Europe. In this context, one of the pillars of the ambitious ERA concept that was put forward concerns 'Developing world class research infrastructures', which in turn provides growth, jobs and the basis for a dynamic and knowledge-based European economy. Research infrastructures are playing an increasing role in the advancement of knowledge and technology. For example, observatories for environmental sciences, data banks in genomics and data bases in social science, imaging systems or clean rooms for nano-electronics, irradiation facilities for materials research or super-computers, are essential tools for knowledge development. By offering unique research services, by attracting young people to science and through networking of facilities, research infrastructures help in structuring the scientific community and therefore play a key role in the construction of an efficient research and innovation environment. Because of their ability to assemble a critical mass of people and investment, they contribute to national, regional and European economic development. They are therefore at the core of the 'knowledge triangle' of research, education and innovation. As the frontiers of research evolve and advance, and as our technologies progress, research infrastructures are becoming increasingly complex and more expensive, often placing them beyond the reach of a single research group, region, nation or even continent. This was recognised by the Competitiveness Councils of 1-3 July 2004 and of 25-26 November 2004 when the Council agreed that, as part of the further development of the ERA, there was a need for the reinforcement of competitive research, prevention of fragmentation, and cooperation in the field of research infrastructures. The Council emphasized the necessity of developing a European strategy in the field of research infrastructures and mandated ESFRI, - the European Strategy Forum for Research Infrastructure- , to develop a strategic roadmap for Europe for the next generation of research infrastructures. The Competitiveness Council of 30 May 2008 reiterated the need to develop research infrastructures at European level, on the basis of, among other things, an efficient coordination and an appropriate legal framework. In October 2006, ESFRI released the first ever European Roadmap for Research Infrastructures containing 35 key projects of European interest to be developed in the next 10-20 years. The challenge now is the implementation of these projects. However, a major difficulty for setting up new European research infrastructures, apart from scarcity of resources and the complexity of technical and organisational issues, is the lack of an adequate legal framework allowing the creation of appropriate partnership with partners from different countries.
Existing provisions in the area of the proposal Recent work carried out under the auspices of ESFRI has recognised that existing legal forms under national law (e.g. the French société civile, the German Gesellschaft mit beschränkter Haftung (GmbH), the UK limited liability company (Ltd) or the Dutch stichting (foundation)) do not fulfil the needs of these new research infrastructures. The analysis is similar for existing legal forms under international or Community law (e.g. international/intergovernmental organisations, European Economic Interest Groupings). ESFRI thus identified a need to develop a dedicated Community legal framework for setting-up European research infrastructures involving several Member States. The proposed legislation is therefore designed to facilitate the joint establishment and operation of research facilities of European interest among several Member and countries associated to the Community R&D Framework Programme, and to help develop further the European policy for research infrastructures. This should complement the advances already achieved since 2004, in particular through ESFRI. A wide-ranging consultation has been carried out to prepare this initiative, including analysis conducted by experts and consultation of stakeholders.
Consistency with the other policies and objectives of the Union The rapid setting-up of new European research infrastructures - as identified for example by ESFRI - would enable an easier and quicker achievement of the horizontal objectives of the European Union: Growth and Jobs: The construction, operation and maintenance of such facilities create important supply and demand effects. For example, the generation of today's CCD cameras (consumer products), or the use of specific software for ophthalmological examinations have their roots in the technological developments done in the last twenty years in the large optical astronomy observatories; 'Sustainable Europe': European research infrastructures help to better understand our environment or to develop new approaches to energy. As identified by the Energy Council of 28 February 2008, research infrastructures help to improve and enlarge the Community's knowledge base of researchers and research institutes. They reduce barriers to mobility, attract world-class human capital, and improve science education in the field of renewable energy technologies (SET plan); 'Knowledge Society': European research infrastructures are key for the efficient access to world-level scientific knowledge by large communities of researchers and users. It should be remembered that the Internet was born in CERN many years ago. Today, millions of kilometres of optic fibres link the different scientific centres of competences, research centres and universities, as the backbone of an efficient, quick and reliable scientific communication and information system. Europe as a world partner: The rapid development of European research infrastructures will significantly affect the attractiveness of the European Research Area. Already Australia, India, Russia and the USA have shown considerable interest in a participation in the development of the projects identified by ESFRI. Better regulation (and simplification): Finally, through an optimisation of the legal framework at European level, the Council could allow a quicker and efficient process for the management of the different files related to the setting-up of new European research facilities using a single legal base instead of several national ones. The regulation is complementary to other Community initiatives developed in the context of ERA, such as the Communication on Joint Programming in Research i. It also complements the European Institute of Innovation and Technology (EIT), which will create Knowledge and Innovation Communities (KICs) bringing together the best resources from higher education, research and business players in partnerships.
Consultation of interested parties and use of expertise
In the preparation of this proposal, the Commission took into account the views expressed by many stakeholders. ESFRI organised, in collaboration with DG Research, two workshops with key stakeholders in 2006. The two workshops showed the limitations of the existing legal forms at national, Community or international levels for European research infrastructures. A feasibility study on the creation of a European legal instrument for European research infrastructures was carried out in 2007 by a group of legal experts. The group concluded that a solution could be an EC Regulation based on Article 171 of the EC Treaty. A Stakeholders Meeting was organised on 3 March 2008. Participants included representatives of the projects in the ESFRI roadmap, representatives of European research facilities and legal experts with in-depth knowledge of the subject. A vast majority of experts agreed on the usefulness of a new legal form at Community level and on the broad orientation of the project of the Commission. The Commission also set up and consulted an advisory expert group (Sounding Board) in 2008. The Sounding Board showed strong support to the option of developing a new Community legal instrument for European research infrastructures. In their view, such a legal instrument, complementing other existing legal forms, would facilitate and speed up the decision making process for new infrastructures.
Impact assessment This proposal for a Council Regulation has been subject to a Commission Impact Assessment which compared the potential impact of the proposed framework regulation with the alternatives, including the Business as Usual situation and 3 other : Option 1: The 'no specific EU action' option corresponds to the present situation, where, each consortium, through an ad hoc process, tries to identify among existing legal forms the one which could be the most appropriate for their project; Option 2 corresponds to a 'light' form of intervention from the European Commission, helping those involved in building European infrastructures to identify problems and needs, to exchange information about how to tackle these problems and to establish best practices. Option 3 corresponds to the setting-up of Joint Undertakings by the Community, according to Article 171 of the EC-Treaty, on a case by case basis, every time that such a need occurs; Option 4 is a more direct response to the problem at hand. It proposes a legislative action to provide a new legal instrument adapted to the needs of European research infrastructures, complementing existing forms at national and European level; it also considers the empowerment by the legislator of the European Commission to confer the 'European Research Infrastructure' status. A comparative assessment of the different policy options clearly identifies Option 4 as the most effective and efficient way to achieve the policy objectives of the proposal. In particular the proposed framework regulation has clear advantages over other alternatives. It would provide an easier, faster and more cost-efficient process of setting-up new European research infrastructures. It would provide all the features that a legal form should have for European research infrastructures. It would thus increase the number of European research infrastructures and contribute to the achievement of socio-economic, environmental and societal impacts. It would also contribute to further development of a European policy for research infrastructures. Ultimately the proposed framework regulation would increase the attractiveness of the European Union at international level as a place to do research through the reinforcement of the ERA. However, Member States in setting-up new research infrastructures of European dimension could also use relevant existing international, national or European legal forms (for instance the EGCT and the EEIG).
Contents
Summary of the proposed action Complementing national or inter-governmental schemes, the proposed framework regulation will provide a common legal framework based on Article 171 EC Treaty. It will set out the main characteristics of European Research Infrastructures (ERIs), as well as clear procedures by which this status will be conferred by the legislator. An ERI is a legal entity with legal personality and full legal capacity recognised in all Member States. It is based on membership: its members (Member States, third countries and intergovernmental organisations) jointly contribute to the achievement of the objectives of an ERI, primarily the establishment and operation of a research infrastructure of European importance. Its internal structure is very flexible, allowing the members to define, in the Statutes, their member rights and obligations, the organs and their competences and other internal arrangements. The liability of the members for the debts of the ERI will in principle be limited to their respective contributions; flexibility will however be allowed in the statutes to modify such arrangements. The applicable law is Community law, the law of the State of the statutory seat or of the State of operation regarding certain safety and technical matters. The Statutes and their implementing rules must comply with such applicable law. The ERI shall also be considered as an international body or organisation in the sense of the directives on value-added tax, on excise duties and on public procurement; it shall be thus exempted from VAT and excise duties and its procurement procedures shall be out of the scope of the directive on public procurement. An ERI shall be set up, in conformity with the legal basis of Article 171 EC Treaty, by a decision of the Commission acting on the basis of implementing powers conferred by the Council (Article 202 EC Treaty). The Commission shall act upon an application submitted by those who wish to become founding members of the ERI. The decision setting up the ERI shall be taken following the advisory procedure. This procedure should stimulate the setting-up of structures necessary for the efficient execution of European research, including those supported by the research, technological development and demonstration Community programmes. It would also allow a quicker process than if individual decisions were taken by the Council, simplifying the complex process of development of international research infrastructures, and avoiding uncoordinated activities. The European Commission will ensure the overall management of the new legal framework and monitoring of compliance of the ERIs with the Regulation. Five years after its adoption, the Commission shall carry out, through a panel of experts, an evaluation of this legal framework and shall report it to the European Parliament and the Council.
Legal basis The legal basis of the proposal is Article 171 of the Treaty establishing the European Community.
Subsidiarity principle The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the Community.
In order for Community action to be justified, it is also necessary for the subsidiarity principle to be respected. This involves assessing two aspects. Firstly, it is important to be sure that the objectives of the proposed action could not be achieved sufficiently by Member States in the framework of their national constitutional system (necessity test). Three options are proposed to tackle the identified problem, i.e. that no appropriate legal framework for European Research Infrastructures exists: i Coordination action at European level for the development of best practices; i Development of Joint Undertakings and i Development of a dedicated legal framework at Community level. The Community is best placed to implement these options, on the basis of Article 165 for the first one, and through Article 171 for the two others. The second aspect to consider is whether and how the objectives could be better achieved by action on the part of the Community (test of European value-added). The rationale for a European action stems from the trans-national nature of the problem (setting-up of legal frameworks between Member States). Alternative solutions exist through the setting up of inter-governmental agreements, however the administrative and legal processes which typically have to be followed under such intergovernmental schemes are considered as too lengthy, difficult and cumbersome.
The proposal therefore complies with the subsidiarity principle.
The draft Regulation is very short and leaves most of the internal arrangements for the planned infrastructure up to the members of the European Research Infrastructure, i.e. Member States, third States and intergovernmental organisations. The applicable law will be mostly the national law of the country of statutory seat or of operation. The amount of information that the ERI and its members have to present to the Commission is kept to the minimum necessary so as to allow the Commission to examine its compliance with the framework regulation. For these reasons, the proposal complies with the proportionality principle.
The framework that will be generally applicable to a potentially large number of legal entities, the ERIs, which are set up under Article 171 EC Treaty as legal basis, requires a regulation.
The proposed regulation will facilitate the joint establishment and operation of European research facilities among several Member States and Associated States. This is an activity additional to the implementation of the research infrastructures action foreseen in the legal base for the 7th Framework Programme for Research.
Simplification
The proposal provides for simplification of administrative procedures for public authorities (Community and national).
Through an optimisation of the legal framework at European level, the Council could allow a quicker and more efficient process for the management of the different files related with the setting-up of new European research facilities using a single legal base instead of several national ones.