Legal provisions of COM(2013)501 - ECSEL Joint Undertaking

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dossier COM(2013)501 - ECSEL Joint Undertaking.
document COM(2013)501 EN
date May  6, 2014

Contents

Article 1 - Establishment

1. For the implementation of the Joint Technology Initiative on ‘Electronic Components and Systems for European Leadership’), a joint undertaking within the meaning of Article 187 TFEU (the ‘ECSEL Joint Undertaking’), shall be established for a period up to 31 December 2024. In order to take into account the duration of Horizon 2020, calls for proposals under the ECSEL 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 ECSEL Joint Undertaking shall replace and succeed the ENIAC and ARTEMIS Joint Undertakings, established by Regulations (EC) No 72/2008 and (EC) No 74/2008.

3. The ECSEL 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.

4. The ECSEL 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 a party to legal proceedings.

5. The seat of the ECSEL Joint Undertaking shall be located in Brussels, Belgium.

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

Article 2 - Objectives and scope

1. The ECSEL Joint Undertaking shall have the following objectives:

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

(b)to contribute to the development of a strong and globally competitive electronics components and systems industry in the Union;

(c)to ensure the availability of electronic components and systems for key markets and for addressing societal challenges, aiming at keeping Europe at the forefront of technology development, bridging the gap between research and exploitation, strengthening innovation capabilities and creating economic and employment growth in the Union;

(d)to align strategies with Member States to attract private investment and contribute to the effectiveness of public support by avoiding an unnecessary duplication and fragmentation of efforts and by facilitating the participation of actors involved in research and innovation;

(e)to maintain and grow semiconductor and smart system manufacturing capability in Europe, including leadership in manufacturing equipment and materials processing;

(f)to secure and strengthen a commanding position in design and systems engineering including embedded technologies;

(g)to provide access of all stakeholders to a world-class infrastructure for the design and manufacture of electronic components and embedded/cyber-physical and smart systems; and

(h)to build a dynamic ecosystem involving Small and Medium-Sized Enterprises (SMEs), thereby strengthening existing clusters and nurturing the creation of new clusters in promising new areas.

2. The scope of work for the ECSEL Joint Undertaking shall be built on the results obtained by the ENIAC and ARTEMIS Joint Undertakings, by the European Technology Platform EPoSS, and by work funded through other national and European programmes. It will foster in a proper and balanced way new developments in, and synergies between, the following main areas:

(a)design technologies, process and integration, equipment, materials and manufacturing for micro- and nanoelectronics while targeting miniaturisation, diversification and differentiation, heterogeneous integration;

(b)processes, methods, tools and platforms, reference designs and architectures, for software and/or control-intensive embedded/cyber-physical systems, addressing seamless connectivity and interoperability, functional safety, high availability, and security for professional and consumer type applications, and connected services; and

(c)multi-disciplinary approaches for smart systems, supported by developments in holistic design and advanced manufacturing to realise self-reliant and adaptable smart systems having sophisticated interfaces and offering complex functionalities based on, for example, the seamless integration of sensing, actuating, processing, energy provision and networking.

Article 3 - Union’s financial contribution

1. The Union financial contribution to the ECSEL Joint Undertaking, including EFTA appropriations, to cover administrative costs and operational costs shall be up to EUR 1 184 874 000. The Union’s financial contribution shall be paid from the appropriations in the general budget of the Union allocated to Specific Programme, implementing Horizon 2020 (2014-2020), established by Decision 743/2013/EU. The budget implementation as regards the Union’s financial contribution shall be entrusted to the ECSEL Joint Undertaking acting as a body referred to in Article 209 of Regulation (EU, Euratom) No 966/2012 in accordance with point (c)(iv) of Article 58(1), Articles 60 and 61 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 ECSEL 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 as well as, inter alia, the following:

(a)the requirements for the ECSEL Joint Undertaking’s contribution concerning the relevant performance indicators referred to in Annex II to Decision 2013/743/EU;

(b)the requirements for the ECSEL Joint Undertaking’s contribution in view of the monitoring referred to in Annex III to Decision 2013/743/EU;

(c)the specific performance indicators related to the functioning of the ECSEL 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 as referred to in Article 28 of Regulation (EU) No 1291/2013, 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 ECSEL 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 ECSEL Participating States shall make a financial contribution to the operational costs of the ECSEL Joint Undertaking that is commensurate with the Union’s financial contribution. The amount of at least EUR 1 170 000 000 over the period referred to in Article 1 is envisaged.

2. The private members of the ECSEL Joint Undertaking shall make or arrange for their constituent entities and affiliated entities to make contributions to the ECSEL Joint Undertaking. The amount of at least EUR 1 657 500 000 over the period referred to in Article 1 is envisaged.

3. The contributions referred to in paragraphs 1 and 2 of this Article shall consist of contributions to the ECSEL Joint Undertaking as set out in Article 16(2), point (b) of Article 16(3) and point (c) of Article 16(3) of the Statutes.

4. The Members of the ECSEL Joint Undertaking other than the Union shall report by 31 January each year to the Governing Board on the value of the contributions referred to in paragraphs 1 and 2 made in each of the previous financial years.

5. For the purpose of valuing the contributions referred to in point (c) of Article 16(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 ECSEL Joint Undertaking, should there be any uncertainty arising from the certification. In case of remaining uncertainties, it may be audited by the ECSEL Joint Undertaking.

6. The Commission may engage in remedial actions and possibly terminate, proportionally reduce or suspend the Union’s financial contribution to the ECSEL Joint Undertaking or trigger the winding-up procedure referred to in Article 26(2) of the Statutes if members other than the Union, including their constituent entities and affiliated entities, do not contribute, contribute only partially or contribute late with regard to the contributions referred to in paragraphs 1 and 2 of this Article.

Article 5 - Financial rules

Without prejudice to Article 12 of this Regulation, the ECSEL 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 (11).

Article 6 - Staff

1. The Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 (12) (‘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 ECSEL Joint Undertaking.

2. The Governing Board shall exercise, with respect to the staff of the ECSEL Joint Undertaking, the powers conferred by the Staff Regulations on the Appointing Authority and by the Conditions of Employment on the Authority empowered to conclude contracts (‘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 shall be 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 subsequent sub-delegation of those powers by the latter. In such cases the Governing Board shall exercise the appointing authority powers itself or shall delegate them to one of its members or to a staff member of the ECSEL Joint Undertaking other than the Executive Director.

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

4. The staff resources shall be set out in the staff establishment plan of the ECSEL Joint Undertaking, indicating the number of temporary posts by function group and by grade, as well as by the number of contract staff expressed in full-time equivalents, in accordance with its annual budget.

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

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

Article 7 - Seconded national experts and trainees

1. The ECSEL Joint Undertaking may make use of seconded national experts and trainees not employed by the ECSEL 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 ECSEL 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 ECSEL Joint Undertaking and its staff.

Article 9 - Liability of the ECSEL Joint Undertaking

1. The contractual liability of the ECSEL 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 event of non-contractual liability, the ECSEL 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 ECSEL Joint Undertaking in respect of the liability referred to in paragraphs 1 and 2 and the costs and expenses incurred in that connection shall be considered as expenditure of the ECSEL Joint Undertaking and shall be covered by its resources.

4. The ECSEL 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 and contracts concluded by the ECSEL Joint Undertaking, or in its decisions;

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

(c)in any dispute between the ECSEL 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 involving an Associated Country, the specific provisions of the relevant agreements shall apply.

3. Regarding any matter not covered by this Regulation or by other Union legal acts, the law of the State where the seat of the ECSEL 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 ECSEL Joint Undertaking, which shall assess in particular the level of participation in, and contribution to, the indirect actions both by the private members and their constituent entities and affiliated entities, and also by other legal entities. The Commission shall prepare a report on that evaluation which includes 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 ECSEL 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(6) or take any other appropriate action.

3. Within six months after the winding-up of the ECSEL Joint Undertaking, but no later than two years after the triggering of the winding-up procedure referred to in Article 26 of the Statutes, the Commission shall conduct a final evaluation of the ECSEL 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 ECSEL 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 ECSEL Joint Undertaking.

Article 13 - Ex-post audits

1. Ex-post audits of expenditure on indirect actions shall be carried out by the ECSEL Joint Undertaking in accordance with Article 29 of Regulation (EU) No 1291/2013 as part of 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 Union’s financial interests

1. The ECSEL Joint Undertaking shall grant Commission staff and other persons authorised by the ECSEL 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 (13) and Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (14), with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the Union’s financial interests 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 ECSEL Joint Undertaking, the Court of Auditors and OLAF to conduct such audits and investigations, according to their respective competences.

4. The ECSEL 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 ECSEL 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) (15). The ECSEL Joint Undertaking shall adopt the necessary measures to facilitate internal investigations conducted by OLAF.

Article 15 - Confidentiality

Without prejudice to Article 16, the ECSEL 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 ECSEL Joint Undertaking.

Article 16 - Transparency

1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council (16) shall apply to documents held by the ECSEL Joint Undertaking.

2. The ECSEL Joint Undertaking’s 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 ECSEL 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

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

2. Specific criteria regarding the eligibility of individual applicants to receive funding from ECSEL Participating States may be determined by the relevant funding authorities. Such criteria could cover, inter alia, the applicant type, including legal status and purpose, conditions of liability and viability, including financial soundness, and the fulfilment of fiscal and social obligations.

3. When an ECSEL Participating State does not entrust the ECSEL Joint Undertaking with the implementation of its contributions to the participants in indirect actions through the grant agreements with participants concluded by the ECSEL Joint Undertaking, it may determine specific rules regarding the eligibility of costs for the funding of participants.

4. The specific criteria and rules referred to in this Article shall be included in the work plan.

Article 18 - Support from the host state

An administrative agreement may be concluded between the ECSEL 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 ECSEL Joint Undertaking.

Article 19 - Repeal and transitional provisions

1. Regulation (EC) No 72/2008 and Regulation (EC) No 74/2008 are thereby repealed.

2. Without prejudice to paragraph 1, actions initiated under Regulations (EC) No 72/2008 and (EC) No 74/2008, including annual implementation plans adopted under those Regulations, shall continue to be governed by those Regulations until their completion.

3. In addition to the contributions referred to in Article 3(1) and Article 4(2) of this Regulation, the following contributions to the administrative costs of the ECSEL Joint Undertaking shall be paid over the period 2014-2017 for the completion of the actions launched under Regulations (EC) No, 72/2008 and (EC) No 74/2008:

(a)EUR 2 050 000 by the Union;

(b)EUR 1 430 000 by the AENEAS Association;

(c)EUR 975 000 by the ARTEMISIA Association.

The interim evaluation referred to in Article 11(1) of this Regulation shall include a final evaluation of the ENIAC and ARTEMIS Joint Undertakings under Regulations (EC) No 72/2008 and (EC) No 74/2008.

4. The Executive Director appointed on the basis of Regulation (EC) No 72/2008 shall, for the remaining period of the term of office, be assigned to the functions of the Executive Director of the ECSEL Joint Undertaking as provided for in this Regulation with effect from 27 June 2014. The other conditions of the Executive Director’s contract shall remain unchanged.

5. If the Executive Director appointed in accordance with paragraph 4 of this Article was in his/her first term of office, he/she shall be appointed for the remaining period of that term of office with the possibility to extend the term of office up to 4 years in accordance with Article 8(4) of the Statutes. If the Executive Director appointed in accordance with paragraph 4 was in his/her second term of office, that term of office cannot be extended. The Executive Director whose term of office has been extended may not participate in another selection procedure for the same post at the end of the overall period of his/her term of office.

6. The contract of employment of the Executive Director appointed on the basis of Regulation (EC) No 74/2008 shall be terminated before 27 June 2014.

7. Without prejudice to paragraphs 4 and 5, this Regulation shall not affect the rights and obligations of staff engaged under Regulations (EC) No 72/2008 and (EC) No 74/2008. Their contracts may be renewed under this Regulation in accordance with the Staff Regulations and the Conditions of Employment and in accordance with the budgetary constraints of the ECSEL Joint Undertaking.

8. The Executive Director of the ECSEL Joint Undertaking shall convene the first meeting of the Governing Board and of the Public Authorities Board.

9. Unless otherwise agreed between members of the ENIAC Joint Undertaking and of the ARTEMIS Joint Undertaking pursuant to Regulations (EC) No 72/2008 and (EC) No 74/2008, all rights and obligations, including assets, debts or liabilities of the members of the Joint Undertakings pursuant to those Regulations shall be transferred to the members of the ECSEL Joint Undertaking pursuant to this Regulation.

10. Any unused appropriations under Regulations (EC) No 72/2008 and (EC) No 74/2008 shall be transferred to the ECSEL Joint Undertaking. Any amount due by the AENEAS Association and the ARTEMISIA Association for the administrative appropriations of the ENIAC and ARTEMIS Joint Undertakings over the period 2008-2013 shall be transferred to the ECSEL Joint Undertaking in accordance with arrangements to be agreed with the Commission.

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.