Saturday, 10 January 2009

EU Law: Legislating research

In this post we look at European Community (European Union) procedures to adopt the acts for European research and technological development.

We recapitulate legal acts in force and point to proposals aiming at developing research infrastructures by new means.

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Article 172 TEC

Article 172 (ex Article 130o) of the Treaty establishing the European Community (TEC) sets out the procedures for some of the acts concerning research and technological development.
Paragraph 1 refers to the joint undertakings (Joint Technology Initiatives, JTIs) or any other structure necessary for the efficient execution of Community research, technological development and demonstration programmes, mentioned in Article 171.

The Commission proposes, the Economic and Social Committee (ESC) is consulted, the European Parliament is merely consulted, and the Council adopts the provisions by qualified majority.

The second paragraph relates to the implementing rules for the participation in the multiannual framework programme and the dissemination of research results (Article 167), supplementary research programmes, especially dissemination of knowledge and access by other member states (Article 168) and participation in research and development programmes undertaken by several member states (Article 169).

The Economic and Social Committee is consulted, and the co-decision procedure applies. The supplementary programmes must be approved by the member states concerned.


Outside the scope of Article 172 TEC are the following: The multiannual framework programme itself, adopted by co-decision according to Article 166(1), the specific programmes adopted by the Council by a qualified majority on a proposal from the Commission and after consulting the European Parliament, pursuant to Article 166(4) and international agreements (with third countries or international organisations; Article 170).


The current Article 172 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/123:

(TITLE XVIII
RESEARCH AND TECHNOLOGICAL DEVELOPMENT)

Article 172 TEC

The Council, acting by qualified majority on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, shall adopt the provisions referred to in Article 171.

The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, shall adopt the provisions referred to in Articles 167, 168 and 169. Adoption of the supplementary programmes shall require the agreement of the Member States concerned.

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Original Lisbon Treaty (ToL)

Article 2, point 141 amended Article 170 TEC and point 142 inserted a new Article 172a (OJEU 17.12.2007 C 306/86).

In other words, Article 172 TEC underwent no specific amendment.




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Renumbering the Treaty of Lisbon (ToL)

(The Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)

Article 172 TEC initially became Article 172 TFEU (ToL) before the renumbering of the treaty made it into Article 188 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).


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Lisbon Treaty consolidated

Article 188 TFEU

The legislative procedures remain the same, although the first paragraph no longer refers to qualified majority voting and the second paragraph uses the name ordinary legislative procedure (horizontal amendments). The Article was renumbered as were the provisions referred to. Article 188 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131):

(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)


Article 188 TFEU
(ex Article 172 TEC)

The Council, on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, shall adopt the provisions referred to in Article 187.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall adopt the provisions referred to in Articles 183, 184 and 185. Adoption of the supplementary programmes shall require the agreement of the Member States concerned.



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Joint undertakings and other research structures

Here are some proposals and legislative acts pertaining to Article 172(1) TEC on joint undertakings and other structures.



Research infrastructures proposal

The Commission has made the Proposal for a Council Regulation on the Community legal framework for a European Research Infrastructure (ERI), Brussels, 25.7.2008 COM(2008) 467 final.

In the Commission’s view, 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.

The legal base of the Regulation would be Article 171 TEC. The proposed Article 1 of the Regulation presents the intended scope:


Article 1
Subject-matter and scope

1. This Regulation establishes a framework laying down the requirements and procedures for and the effects of setting up a European Research Infrastructure (hereinafter referred to as "ERI").

2. It shall apply to research infrastructures of pan-European interest.


The Commission’s ERI proposal is available here:

http://ec.europa.eu/research/press/2008/pdf/com_2008_467_en.pdf


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Joint Technology Initiatives (JTIs)

One of the concepts in the area of joint undertakings is Joint Technology Initiatives (JTIs), with the following description given on one of the Commission’s web pages:

JTIs aim to achieve greater strategic focus by supporting common ambitious research agendas in areas that are crucial for competitiveness and growth, assembling and coordinating at European level a critical mass of research. They therefore draw on all sources of R&D investment - public or private - and couple research tightly to innovation.


Source: Joint Technology Initiatives (web page):

http://ec.europa.eu/information_society/tl/research/priv_invest/jti/index_en.htm


Cordis offers more comprehensive information about Joint Technology Initiatives, under the Seventh Research Framework Programme (FP7), and subtitled Public-Private Partnerships in EU Research:


http://cordis.europa.eu/fp7/jtis/



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Galileo

The first European Community joint research undertaking set up pursuant to Article 171 TEC, was Galileo.

Council Regulation (EC) No 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking
(originally published OJ 28.5.2002 L 138/1). The consolidated Regulation is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R0876:20061222:EN:PDF


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New joint undertakings


Since the beginning of the Seventh Framework Programme for Research and Technological Development (FP7) the establishment of new joint undertakings has boomed as a promising sign of intensifying EU research efforts.


Clean Sky Joint Undertaking

Council Regulation (EC) No 71/2007 of 20 December 2007 setting up the Clean Sky Joint Undertaking, published OJEU 4.2.2008 L 30/1 (but later corrigenda), is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:030:0001:0020:EN:PDF


Introducing the concept Joint Technology Initiative (JTI), the Regulation sets up a joint undertaking within the meaning of Article 171 TEC:

Article 1
Setting up of a Joint Undertaking

1. For the implementation of the Joint Technology Initiative on Clean Sky, a Joint Undertaking within the meaning of Article 171 of the Treaty is hereby set up for the period up to 31 December 2017 (hereinafter referred to as the Clean Sky Joint Undertaking).

2. Its seat shall be located in Brussels, Belgium.


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ENIAC

Council Regulation (EC) No 72/2008 of 20 December 2007 setting up the ENIAC Joint Undertaking, originally published OJEU 4.2.2008 L 30/21. The consolidated version is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2008R0072:20080207:EN:PDF

The joint undertaking was based on Articles 171 and 172 TEC:

Article 1
Establishment of a Joint Undertaking

1. For the implementation of the Joint Technology Initiative (hereinafter JTI) on nanoelectronics, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter the ENIAC Joint Undertaking) is hereby set up for a period up to 31 December 2017.

2. The seat of the ENIAC Joint Undertaking shall be located in Brussels, Belgium.


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IMI

Council Regulation (EC) No 73/2008 of 20 December 2007 setting up the Joint Undertaking for the implementation of the Joint Technology Initiative on Innovative Medicines, published OJEU 4.2.2008 L 30/38, is accessible here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:030:0038:0051:EN:PDF


The IMI Regulation was based on Articles 171 and 172 TEC:

Article 1
Establishment of a Joint Undertaking

1. A Joint Undertaking for the implementation of the Joint Technology Initiative on Innovative Medicines is hereby set up for a period up to 31 December 2017 (hereinafter referred to as IMI Joint Undertaking).

2. The seat of the IMI Joint Undertaking shall be located in Brussels, Belgium.


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ARTEMIS

Council Regulation (EC) No 74/2008 of 20 December 2007 on the establishment of the ‘ARTEMIS Joint Undertaking’ to implement a Joint Technology Initiative in Embedded Computing Systems, originally published =JEU4.2.2008 L 30/52, but the consolidated version is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2008R0074:20080207:EN:PDF

The Artemis Regulation was based on Articles 171 and 172 TEC:

Article 1
Establishment of a Joint Undertaking

1. For the implementation of the Joint Technology Initiative (JTI) on Embedded Computing Systems, a Joint Undertaking within the meaning of Article 171 of the Treaty, hereinafter referred to as the ‘ARTEMIS Joint Undertaking’, is hereby set up for a period up to 31 December 2017.

2. The seat of the ARTEMIS Joint Undertaking shall be located in Brussels, Belgium.


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Fuel Cells and Hydrogen (FCH)

Council Regulation (EC) No 521/2008 of 30 May 2008 setting up the Fuel Cells and Hydrogen Joint Undertaking, published OJEU 12.6.2008 L 153/1, is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:153:0001:0020:EN:PDF

The Fuel Cells and Hydrogen Joint Undertaking Regulation was based on Articles 171 and 172 TEC:

Article 1
Establishment

1. For the implementation of the Joint Technology Initiative (hereinafter referred to as JTI) on Fuel Cells and Hydrogen, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter referred to as the FCH Joint Undertaking) is hereby set up for a period up to 31 December 2017.

2. The seat of the FCH Joint Undertaking shall be located in Brussels, Belgium.


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Implementation, supplementary and participation


Here we look at some of the legal acts adopted according to the second paragraph of Article 172 TEC: implementing rules for the participation in the multiannual framework programme and the dissemination of research results (Article 167), supplementary research programmes, especially dissemination of knowledge and access by other member states (Article 168) and participation in research and development programmes undertaken by several member states (Article 169).


Rules for participation and dissemination
The rules for participation mentioned in the first indent and for dissemination of research results mentioned in the second indent of Article 167 TEC (and Article 183 TFEU) are set out in Regulation (EC) No 1906/2006 of the European Parliament and of the Council of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013), published OJEU 30.12.2006 L 391/1, available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:391:0001:0018:EN:PDF


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Supplementary research programmes

In an earlier post we found supplementary programmes mentioned as an option for the future.


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Participation (joint implementation)

CORDIS (the Community Research and Development Information Service) has established a portal dedicated to Article 169 initiatives:

http://cordis.europa.eu/fp7/art169/home_en.html

The web pages seem to contain ‘everything’ you need to know about joint implementation.



Ralf Grahn