I would like to share some interesting news regarding EU-US cooperation and share my thoughts on its practical consequences for the EU projects involving US organisations.
On 17 October 2016, the European Commission and the US Government signed an agreement, which facilitates cooperation between US organisations and Horizon 2020 participants.
This agreement indeed has been signed with the scope to ease and simplify collaboration between the US and EU partners in an H2020 project. The Partners are only expected to complete bureaucratic or reporting requirements of their respective funding programmes. That is the good news.
But, let’s see two main extracts from this agreement:
Section 1: “U.S. institutions, not receiving funds under the EU Framework Programmes for Research and Innovation, currently Horizon 2020, may conduct cooperative research and relevant activities with EU participants, irrespective of the nature and extent of their contributions, without being a participant, and are not required to sign grant or consortia agreements under these Programmes or other forms that are required for EU participants.”
and
Section 6: “Research Partners are encouraged, where appropriate, to reach a common understanding in respect of intellectual property rights, data access, and data dissemination and other matters considered essential to research collaboration governance.”
My questions would be right away: in case neither the EC Grant Agreement, nor the Consortium Agreement is signed by the US organisations, what will empower the coordinator legally to make US partner organisations perform and report? (The question of course works vice versa as well.) The reporting requirements on the US side are quite different from the one in the EU, shall the coordinator just copy-paste the US report as an Annex to the Periodic Report of the project? Maybe that will satisfy many coordinators, but having participated in a few international collaboration projects, I can say that this is a solution only if all partners do their job and even more to reach the common objectives. In case some of the European or some of the US partners fail in delivering the work, then the full consortium will fail and the reports submitted to the respective funding programme authorities might not be accepted partially or fully. The principle of joint technical responsibility might become difficult to apply with partners in conflict.
And the next automatic question: if these parties need to reach a common understanding in terms of IPR, data access, dissemination and management, etc., that understanding should be confirmed in a written format, right? So they should sign an agreement in case they want to have the partners legally obliged to comply with the terms of their common understanding. Which type of contract and applicable law is recommended for their agreement? A simple memorandum of understanding?
From the practical perspective: if they are encouraged to sign this agreement, wouldn’t it be logical to get the usual Consortium Agreement (CA) signed by all parties in the H2020 project? The CA, as a civil contract, can set special conditions for the US participants in terms of their administrative and reporting obligations, as well as in terms of IPR and data management issues. The applicable law would probably still remain the law of the agreed European country (normally the law of Belgium) as this is a project submitted and successfully evaluated under the Research and Innovation Framework Programme of the European Union – where the US organisations are co-financed by a US funding scheme set up specifically for co-participating in this EU programme – and still, the conditions for conflict resolution could be managed based on more international standards.
What might ease more the participation of US organisations in H2020 projects is to help with legal advice and tailor the CA template with the special conditions satisfying the US partners.
I am looking forward to seeing the different solutions working out for different consortia in H2020 projects.
