Contracts and agreements
I. Overview
II. Explanation of Agreements
III. How the Research Operations Office can help
IV. Contractual changes between FP6 and FP7
I. Overview
European Commission (EC) funded projects are governed by a number of different agreements, some of which are negotiable, others which are not.
The types of agreement required are described below. This description is followed by specific information about how the Research Operations Office can help with negotiations and provide advice on standard terms.
Finally, a summary of the contractual changes between FP6 and FP7 is given, along with information about where to find more details of the differences between the Frameworks.
For more information or if you wish to seek advice directly from the Research Operations Office about EC
agreements, particularly if you are considering coordinating a project, please
contact your Contracts Manager.
II. Explanation of Agreements
The Model Grant Agreement (including its Annexes)
The Grant Agreement was formerly known as the EC Contract and is the principal agreement between the EC and the grant holder of the project or the coordinator in case of multi-partner projects.
The EC’s Model Grant Agreement is adapted to each project and sets out key project details such as the parties involved, the start date, duration, budget and reporting periods.
So-called Special Clauses may also be inserted to govern specific issues like intellectual property rights, confidentiality and publicity, where these differ from the standard clauses owing to the nature of the call or work programme.
Appended to each Grant Agreement are Annexes which contain the following documents:
- Annex I - the Description of Work (the full project description)
- Annex II - General Conditions (these are identical for projects under Cooperation and Capacities schemes but modified for those under the European Research Council and Marie Curie Actions)
- Annex III - these are unique to each funding scheme and provide extra conditions on finance and reporting. Note that, unlike FP6, there is no Annex III for Collaborative Projects, Networks or Excellence or Coordination and Support Actions
- Annexes IV to VII are proformas to allow partners to accede to the Grant Agreement (that is, sign up to its terms and conditions without signing the Grant Agreement itself); to add new partners to a project; to complete financial statements etc.
The EC project officer will issue a Grant Agreement to the grant holder or coordinator and initial specific project details such as the funding amount and the duration of the project will be negotiated.
Where the University is the grant holder, this phase of negotiations is conducted by the principal investigator and the Research Operations Office is not involved because the general terms and conditions are non-negotiable; however, the Grant Agreement may be used as a guideline by project participants in discussions preceding the negotiation of Consortium Agreements (where one exists) and the Research Operations Office will be happy to advise on its interpretation.
The Consortium Agreement
General
Consortium Agreements are negotiated, agreed and signed by each partner, or Beneficiary (“Contractor” under FP6) preferably before the Grant Agreement is signed; they are not signed by the EC. Consortium Agreements are required for multi-party projects such as Collaborative Projects, Networks of Excellence and Coordination and Support Actions.
Purpose
The purpose of the Consortium Agreement is to inter alia:
- provide the rules for the internal organisation and management of the project including voting regulations;
- set out how the funding will be distributed by the coordinator;
- detail provisions about the ownership and licensing of intellectual property, and the dissemination of results;
- lay out procedures for settling internal disputes;
- confirm how matters of liability and confidentiality will be handled;
- set out how withdrawing and defaulting partners will be addressed.
The Consortium Agreement supplements, and cannot derogate from, the terms of the Grant Agreement.
Mandatory
As in FP6, the Consortium Agreements will be mandatory, unless stated otherwise in the call for proposal or the work programme.
It is hoped that the changes to the provisions of the Model Grant Agreement under FP7 with regard to intellectual property in particular, will make the negotiations less time-consuming.
The Model Grant Agreement (draft) can be seen on the Community Research and Development Information Service (CORDIS) website.
Flexibility
The autonomy and flexibility of the consortium partners is maintained in FP7, particularly in relation to its composition (for example, the participation of parties from third party countries has been made more straightforward).
In addition, the approval of the EC is required in fewer cases which will make the processing of amendments and extensions resulting from changes in composition (the withdrawal or addition of partners) less cumbersome.
Model Agreements
Where the University is coordinating a project and thus leading the negotiation of a Consortium Agreement, it will adopt one of the model agreements in circulation throughout Europe as a template (for example, the DESCA model) but with amendments to adapt it to the UK’s and the University’s specific requirements as well as project needs. The DESCA model can be downloaded here.
The use of commonly accepted model agreements will facilitate agreement between the partners owing to the familiarity of terms and incorporation of frequently negotiated amendments. In addition FP7 participants will benefit from previous Europe-wide negotiating experience, throughout Europe, under the FP6 Programme, which itself improved on FP5 Programme negotiations.
Nevertheless, where the University is party to a Consortium Agreement that is based on a European model, careful review of the agreement is still required as changes may have been introduced that are to the detriment of the University, particularly where there is involvement of industrial parties who, not unreasonably, have different interests.
It remains important, therefore, to contact the relevant Contracts Manager at the earliest possible moment to allow sufficient time for review and comments. To find the your department Contracts Manager click here.
The Research Operations Office’s Contracts Managers have considerable experience of negotiating Consortium Agreements and will advise on alternative and acceptable terms. Typical negotiation points include:
- voting on consortium matters: ensuring this is fair, for example equal votes per partner rather than votes based on funding share (which is not always proportional to intellectual contribution);
- sharing of revenue between joint creators of intellectual property: ensuring this is divided fairly;
- minimising delays to publication of results;
- ensuring that rights granted to background intellectual property are appropriately limited.
Marie Curie Agreements
Marie Curie Actions may require a set of different agreements to be put in place:
- a. Consortium Agreement Between partners of a multi-party project as detailed above.
- b. Researcher Agreement Between the Marie Curie researcher and the University to lay out additional terms as required by the EC Grant Agreement terms.
- c. Visitor Agreement Between the different institutions who are hosting a Marie Curie Fellow to agree terms both specific to the project (for example transfer of funds, ownership and access to intellectual property, confidentiality) and general to any visiting researcher who is not employed by an institution (for example health and safety and insurance issues).
- d. Intellectual Property or Partner Agreement Information to follow.
European Research Council (ERC) Agreement
The core Grant Agreement for researchers funded by the ERC has not yet been made available; however, it is expected that ERC grants will follow a more simplified procedure than EC grants to allow for maximum flexibility.
More information to follow.
Visitor Agreement
Information to follow.
Partner or Intellectual Property Agreements
Information to follow.
Subcontracts
Information to follow.
Accession Forms
Information to follow.
III. How the Research Operations Office can help
Cambridge as a consortium partner
At the earliest possible opportunity, please contact the relevant Contracts Manager by either forwarding the coordinator’s details or any emails from the coordinator regarding the Consortium Agreement.
This will give the Contracts Manager the time needed to review and comment on the draft agreement.
Cambridge as a consortium coordinator
It is even more imperative to contact the Research Operations Office early when you are considering coordinating a consortium. The Research Operations Office will advise on the application and financial issues and a Contracts Manager will advise on appropriate terms for a Consortium Agreement. Once the consortium partners and funding are sufficiently confirmed, the Contracts Manager will work closely with the principal investigator and lead the coordination and negotiation of the Consortium Agreement.
Marie Curie
Marie Curie programmes are seldom straightforward and require careful coordination between the different sections of the Research Operations Office (applications and awards, contract negotiation and awards administration).
The Research Operations Office has internal procedures in place to ensure the appropriate coordination for the different Marie Curie programmes which shall be made clear at the application stage.
European Research Council
Information to follow.
IV. Contractual changes between FP6 and FP7
The key differences between contractual terms under FP6 and FP7 are listed below.
For greater detail see the following EC document entitled "Comparison between IPR provisions under FP6 and FP7 proposal main changes".
For quick reference, go straight to the final page which shows the key intellectual property differences in table format.
Approvals
- No longer need to request prior approval from the EC for publication, transfers of ownership and provision of access rights to third parties, provided all other partners agree;
- Prior notice to the EC of publications is no longer required. Other participants can object if the legitimate interest to its Foreground suffers disproportionately great harm;
Definitions
- Pre-existing Know-how becomes Background;
- Knowledge becomes Foreground;
- Needed has been redefined with respect to Background to make excluding specific Background an easier task;
- Sideground (intellectual property created during but outside of the project) is no longer automatically included in the definition of Background and thus may potentially expose such intellectual property inadvertently to licensing; so this may be a point of negotiation;
Background Exclusions
- There is no longer a time limit for exclusion of certain Background, that is to say, there is no longer a need to inform other partners of such exclusion before signature of the Grant agreement or Consortium Agreement (whichever comes first);
- Only Needed Background needs to be excluded; Background that is not considered Needed is outside the scope;
Access rights to intellectual property
- Joint ownership: the current default position is that a joint owner can block licensing deals. In FP7, if there is no licensing agreement concluded, each joint owner may grant licenses to third parties upon simple notification to the other joint owners;
- A statement indicating EC support is not only required in publications and other notices but now also in patent applications;
- It is explicitly stated that exclusive licenses are allowable provided all other participants waive their rights to the intellectual property in question.
- In FP6 the access rights to Pre-existing Know-how was granted under ‘fair and non-discriminatory’ conditions. In FP7 it is under ‘fair and reasonable’ conditions (that is, partners can be charged differently depending on the circumstances) although royalty-free access is allowable.
- FP7 also makes Background and Foreground available sooner for exclusive licensing to third parties (in case the participants have not agreed to waive their access rights to the relevant Background earlier): under FP6 access rights could be requested until 2 years after the end of the project, in FP7 this has been reduced to one year as a default.
The participants have the flexibility (through negotiation of the Consortium Agreement) to choose a longer or shorter period.
- In ‘Frontier Research’ projects, all Access Rights to Foreground and Background are granted to the other project participants on a royalty-free basis both during and after the project.
- In projects falling under the scheme ‘Research for the Benefit of SMEs’, Foreground is automatically assigned to the SMEs. A Consortium Agreement is mandatory which might, if the SMEs agree, grant to the research institution participants access rights to Foreground on fair and reasonable conditions for future research.
Note that this means that use of the research institutions’ own results in future research may be charged for. For further information on the SME-relevant funding schemes, please click here.
Need further information?
Please contact the EC team
