Legal provisions of COM(2013)496 - Bio-Based Industries Joint Undertaking

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dossier COM(2013)496 - Bio-Based Industries Joint Undertaking.
document COM(2013)496 EN
date May  6, 2014

Contents

Article 1 - Establishment

1. For the implementation of the Joint Technology Initiative on Bio-based Industries (‘BBI Initiative’), a joint undertaking within the meaning of Article 187 TFEU (‘BBI Joint Undertaking’), shall be established until 31 December 2024. In order to take into account the duration of Horizon 2020, calls for proposals by the BBI Joint Undertaking shall be launched at the latest by 31 December 2020. In duly justified cases, calls for proposals may be launched by 31 December 2021.

2. The BBI Joint Undertaking shall be a body entrusted with the implementation of a public-private partnership referred to in Article 209 of Regulation (EU, Euratom) No 966/2012.

3. The BBI Joint Undertaking shall have legal personality. In all Member States, it shall enjoy the most extensive legal capacity accorded to legal persons under the laws of those Member States. It may, in particular, acquire or dispose of movable and immovable property and may be party to legal proceedings.

4. The seat of the BBI Joint Undertaking shall be located in Brussels, Belgium.

5. The Statutes of the BBI Joint Undertaking (‘the Statutes’) are set out in the Annex.

Article 2 - Objectives

The BBI Joint Undertaking shall have the following objectives:

(a)to contribute to the implementation of Regulation (EU) No 1291/2013 and in particular Part III of Decision 2013/743/EU;

(b)to contribute to the objectives of the BBI Initiative of a more resource efficient and sustainable low-carbon economy and increasing economic growth and employment, in particularly in rural areas, by developing sustainable and competitive bio-based industries in Europe based on advanced biorefineries that source their biomass sustainably, and in particular to:

(i)demonstrate technologies that enable new chemical building blocks, new materials, and new consumer products from European biomass which replace the need for fossil- based inputs;

(ii)develop business models that integrate economic actors along the whole value chain from supply of biomass to biorefinery plants to consumers of bio-based materials, chemicals and fuels, including by means of creating new cross-sector interconnections and supporting cross-industry clusters; and

(iii)set up flagship biorefinery plants that deploy the technologies and business models for bio-based materials, chemicals and fuels and demonstrate cost and performance improvements to levels that are competitive with fossil-based alternatives.

Article 3 - Union’s financial contribution

1. The Union’s financial contribution to the BBI Joint Undertaking, including EFTA appropriations, to cover administrative costs and operational costs shall be up to EUR 975 000 000. The contribution of the Union shall be paid from the appropriations in the general budget of the Union allocated to the Specific Programme, implementing Horizon 2020, established by Decision 743/2013/EU, in accordance with point (c)(iv) of Article 58(1) and Articles 60 and 61 of Regulation (EU, Euratom) No 966/2012 for bodies referred to in Article 209 of that Regulation.

2. The arrangements for the Union’s financial contribution shall be set out in a delegation agreement and annual transfer of funds agreements to be concluded between the Commission, on behalf of the Union, and the BBI Joint Undertaking.

3. The delegation agreement referred to in paragraph 2 of this Article shall address the elements set out in Article 58(3) and Articles 60 and 61 of Regulation (EU, Euratom) No 966/2012 and in Article 40 of Delegated Regulation (EU) No 1268/2012, and, inter alia, the following:

(a)the requirements for the BBI Joint Undertaking’s contribution regarding the relevant performance indicators referred to in Annex II to Decision No 2013/743/EU;

(b)the requirements for the BBI Joint Undertaking’s contribution in view of the monitoring referred to in Annex III to Decision No 2013/743/EU;

(c)the specific performance indicators related to the functioning of the BBI Joint Undertaking;

(d)the arrangements regarding the provision of data necessary to ensure that the Commission is able to meet its dissemination and reporting obligations including on the single portal for participants as well as through other Horizon 2020 electronic means of dissemination managed by the Commission;

(e)provisions for the publication of calls for proposals of the BBI Joint Undertaking also on the single portal for participants as well as through other Horizon 2020 electronic means of dissemination managed by the Commission;

(f)the use of and changes to human resources, in particular recruitment by function group, grade and category, the reclassification exercise and any changes to the number of staff members.

Article 4 - Contributions of members other than the Union

1. The members of the BBI Joint Undertaking other than the Union shall make, or arrange for their constituent entities to make, a total contribution of at least EUR 2 730 000 000 over the period defined in Article 1.

2. The contributions referred to in paragraph 1 of this Article shall consist of the following:

(a)contributions to the BBI Joint Undertaking as laid down in Article 12(2), point (b) of Article 12(3) and point (c) of Article 12(3) of the Statutes.

(b)in kind contributions of at least EUR 1 755 000 000 over the period defined in Article 1 by the members other than the Union or their constituent entities consisting of the costs incurred by them in implementing additional activities outside the work plan of the BBI Joint Undertaking contributing to the objectives of the BBI Initiative. Other Union funding programmes may support those costs in compliance with the applicable rules and procedures. In such cases, Union financing shall not be a substitute for the in kind contributions from the members other than the Union or their constituent entities.

The costs referred to in point (b) shall not be eligible for financial support by the BBI Joint Undertaking. The corresponding activities shall be set out in an annual additional activities plan that shall indicate the estimated value of those contributions.

3. The members of the BBI Joint Undertaking other than the Union shall report each year by 31 January to the Governing Board of the BBI Joint Undertaking on the value of the contributions referred to in paragraph 2 made in each of the previous financial years. The States Representatives Group shall also be informed thereof in a timely manner.

4. For the purpose of valuing the contributions referred to in point (b) of paragraph 2 of this Article and point (c) of Article 12(3) of the Statutes, the costs shall be determined in accordance with the usual cost accounting practices of the entities concerned, to the applicable accounting standards of the country where the entity is established, and to the applicable International Accounting Standards and International Financial Reporting Standards. The costs shall be certified by an independent external auditor appointed by the entity concerned. The valuation method may be verified by the BBI Joint Undertaking should there be any uncertainty arising from the certification. For the purposes of this Regulation, the costs incurred in additional activities shall not be audited by the BBI Joint Undertaking or any Union body.

5. The Commission may terminate, proportionally reduce or suspend the Union’s financial contribution to the BBI Joint Undertaking or trigger the winding-up procedure referred to in Article 20(2) of the Statutes if those members or their constituent entities do not contribute, contribute only partially or contribute late with regard to the contributions referred to in paragraph 2 of this Article. The Commission decision shall not hinder the reimbursement of eligible costs already incurred by the members by the time of the notification of the decision to the BBI Joint Undertaking.

Article 5 - Financial rules

Without prejudice to Article 12 of this Regulation, the BBI Joint Undertaking shall adopt its specific financial rules in accordance with Article 209 of Regulation (EU, Euratom) No 966/2012 and Commission Delegated Regulation (EU) No 110/2014 (9).

Article 6 - Staff

1. The Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union as laid down by Council Regulation (EEC, Euratom, ECSC) No 259/68 (10) (‘Staff Regulations’ and ‘Conditions of Employment’) and the rules adopted jointly by the institutions of the Union for the purpose of applying the Staff Regulations and Conditions of Employment shall apply to the staff of the BBI Joint Undertaking.

2. The Governing Board shall exercise, with respect to the staff of the BBI Joint Undertaking, the powers conferred by the Staff Regulations on the Appointing Authority and the powers conferred by the Conditions of Employment on the authority empowered to conclude contract (‘the appointing authority powers’).

The Governing Board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 of the Conditions of Employment delegating the relevant appointing authority powers to the Executive Director and defining the conditions under which that delegation may be suspended. The Executive Director is authorised to sub-delegate those powers.

Where exceptional circumstances so require, the Governing Board may by decision temporarily suspend the delegation of the appointing authority powers to the Executive Director and any sub-delegation by the latter. In such a case the Governing Board shall exercise itself the appointing authority powers or delegate them to one of its members or to a staff member of the BBI Joint Undertaking other than the Executive Director.

3. The Governing Board shall adopt appropriate implementing rules as regards the Staff Regulations and the Conditions of Employment in accordance with Article 110 of the Staff Regulations.

4. The staff resources shall be determined in the staff establishment plan of the BBI Joint Undertaking, indicating the number of temporary posts by function group and by grade and the number of contract staff expressed in full-time equivalents, in line with its annual budget.

5. The staff of the BBI Joint Undertaking shall consist of temporary staff and contract staff.

6. All costs related to staff shall be borne by the BBI Joint Undertaking.

Article 7 - Seconded national experts and trainees

1. The BBI Joint Undertaking may make use of seconded national experts and trainees not employed by the BBI Joint Undertaking. The number of seconded national experts expressed in full-time equivalents shall be added to the information on staff resources as referred to in Article 6(4) in accordance with the annual budget.

2. The Governing Board shall adopt a decision laying down rules on the secondment of national experts to the BBI Joint Undertaking and on the use of trainees.

Article 8 - Privileges and Immunities

The Protocol No 7 on the privileges and immunities of the European Union, annexed to the Treaty on European Union and TFEU, shall apply to the BBI Joint Undertaking and its staff.

Article 9 - Liability of the BBI Joint Undertaking

1. The contractual liability of the BBI Joint Undertaking shall be governed by the relevant contractual provisions and by the law applicable to the agreement, decision or contract in question.

2. In the case of non-contractual liability, the BBI Joint Undertaking shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its staff in the performance of their duties.

3. Any payment by the BBI Joint Undertaking in respect of the liability referred to in paragraphs 1 and 2 and the costs and expenses incurred in connection therewith shall be considered as expenditure of the BBI Joint Undertaking and shall be covered by its resources.

4. The BBI Joint Undertaking shall be solely responsible for meeting its obligations.

Article 10 - Jurisdiction of the Court of Justice of the European Union and applicable law

1. The Court of Justice of the European Union shall have jurisdiction:

(a)pursuant to any arbitration clause contained in agreements or contracts concluded by the BBI Joint Undertaking, or in its decisions;

(b)in disputes relating to compensation for damage caused by the staff of the BBI Joint Undertaking in the performance of their duties;

(c)in any dispute between the BBI Joint Undertaking and its staff within the limits and under the conditions laid down in the Staff Regulations and the Conditions of Employment.

2. Regarding any matter not covered by this Regulation or by other Union legal acts, the law of the State where the seat of the BBI Joint Undertaking is located shall apply.

Article 11 - Evaluation

1. By 30 June 2017, the Commission shall carry out, with the assistance of independent experts, an interim evaluation of the BBI Joint Undertaking. The Commission shall prepare a report on that evaluation, which shall include conclusions of the evaluation and observations by the Commission. The Commission shall send that report to the European Parliament and to the Council by 31 December 2017. The results of the interim evaluation of the BBI Joint Undertaking shall be taken into account in the in-depth assessment and in the interim evaluation referred to in Article 32 of Regulation (EU) No 1291/2013.

2. On the basis of the conclusions of the interim evaluation referred to in paragraph 1 of this Article, the Commission may act in accordance with Article 4(5) or take any other appropriate action.

3. Within six months after the winding-up of the BBI Joint Undertaking, but no later than two years after the triggering of the winding-up procedure referred to in Article 20 of the Statutes, the Commission shall conduct a final evaluation of the BBI Joint Undertaking. The results of that final evaluation shall be presented to the European Parliament and to the Council.

Article 12 - Discharge

By way of derogation from Article 60(7) and Article 209 of Regulation (EU, Euratom) No 966/2012, the discharge for the implementation of the budget of the BBI Joint Undertaking shall be given by the European Parliament, upon recommendation of the Council in accordance with the procedure provided for in the financial rules of the BBI Joint Undertaking.

Article 13 - Ex-post audits

1. Ex-post audits of expenditure on indirect actions shall be carried out by the BBI Joint Undertaking in accordance with Article 29 of Regulation (EU) No 1291/2013 as part of the Horizon 2020 indirect actions.

2. The Commission may decide to carry out itself the audits referred to in paragraph 1 of this Article. In such cases, it shall do so in accordance with the applicable rules, in particular Regulations (EU, Euratom) No 966/2012, (EU) No 1290/2013 and (EU) No 1291/2013.

Article 14 - Protection of the financial interests of the members

1. The BBI Joint Undertaking shall grant Commission staff and other persons authorised by the BBI Joint Undertaking or the Commission, as well as the Court of Auditors, access to its sites and premises and to all the information, including information in electronic format, needed in order to conduct their audits.

2. The European Anti-Fraud Office (OLAF) may carry out investigations, including on-the-spot checks and inspections, in accordance with the provisions and procedures laid down in Council Regulation (Euratom, EC) No 2185/96 (11) and Regulation (EC, Euratom) No 883/2013 of the European Parliament and of the Council (12) and with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with an agreement, decision or contract funded under this Regulation.

3. Without prejudice to paragraphs 1 and 2, agreements, decisions and contracts resulting from the implementation of this Regulation shall contain provisions expressly empowering the Commission, the BBI Joint Undertaking, the Court of Auditors and OLAF to conduct such audits and investigations, according to their respective competences.

4. The BBI Joint Undertaking shall ensure that the financial interests of its members are adequately protected by carrying out or commissioning appropriate internal and external controls.

5. The BBI Joint Undertaking shall accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council and the Commission concerning internal investigations by the European Anti-Fraud Office (OLAF) (13). The BBI Joint Undertaking shall adopt the necessary measures needed to facilitate internal investigations conducted by OLAF.

Article 15 - Confidentiality

Without prejudice to Article 16, the BBI Joint Undertaking shall ensure the protection of sensitive information the disclosure of which could damage the interests of its members or of participants in the activities of the BBI Joint Undertaking.

Article 16 - Transparency

1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council (14) shall apply to documents held by the BBI Joint Undertaking.

2. The BBI Joint Undertaking Governing Board may adopt the practical arrangements for implementing Regulation (EC) No 1049/2001.

3. Without prejudice to Article 10 of this Regulation, decisions taken by the BBI Joint Undertaking pursuant to Article 8 of Regulation (EC) No 1049/2001 may form the subject of a complaint to the Ombudsman under the conditions laid down in Article 228 TFEU.

Article 17 - Rules for participation and dissemination

Regulation (EU) No 1290/2013 shall apply to the actions funded by the BBI Joint Undertaking. In accordance with that Regulation, the BBI Joint Undertaking shall be considered as a funding body and shall provide financial support to indirect actions as set out in Article 1 of the Statutes.

Article 18 - Support from the host State

An administrative agreement may be concluded between the BBI Joint Undertaking and the State where its seat is located concerning privileges and immunities and other support to be provided by that State to the BBI Joint Undertaking.

Article 19 - Initial actions

1. The Commission shall be responsible for the establishment and initial operation of the BBI Joint Undertaking until it has the operational capacity to implement its own budget. The Commission shall carry out, in accordance with Union law, all necessary actions in collaboration with the other members and with the involvement of the competent bodies of the BBI Joint Undertaking.

2. For the purpose referred to in paragraph 1:

(a)until the Executive Director takes up his duties following his/her appointment by the Governing Board in accordance with Article 8 of the Statutes, the Commission may designate a Commission official to act as interim Executive Director and exercise the duties assigned to the Executive Director who may be assisted by a limited number of Commission officials:

(b)by derogation from Article 6(2) of this Regulation, the interim Director shall exercise the appointing authority powers;

(c)the Commission may assign a limited number of its officials on an interim basis.

3. The interim Executive Director may authorise all payments covered by the appropriations provided in the annual budget of the BBI Joint Undertaking once approved by the Governing Board and may conclude agreements, decisions and contracts, including staff contracts, following the adoption of the BBI Joint Undertaking’s staff establishment plan.

4. The interim Executive Director shall, with the agreement of the Executive Director of the BBI Joint Undertaking and subject to the approval of the Governing Board, determine the date on which the BBI Joint Undertaking will have the capacity to implement its own budget. From that date, the Commission shall abstain from making commitments and executing payments for the activities of the BBI Joint Undertaking.

Article 20 - Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.