English translation - Original text in Dutch

Letter from: Marja van Bijsterveldt-Vliegenthart, State Secretary for Education, Culture and Science, Ministry of Education, Culture and Science, The Hague

To: The President of the House of Representatives, The Hague

Date: 8 June 2010

Sender's ref.: OWB/FO/2010/210259

Annexes: Practical guidelines

Subject: Procedure for participation in a European Research Infrastructure Consortium (ERIC)

In his letter of 8 February 2010 (Parliamentary Papers II, 27 406, No 170) the former Minister of Education, Culture and Science, Ronald H.A. Plasterk, promised to inform the House of Representatives about the procedure that will be followed if the wishes to become a host country or a member of a European Research Infrastructure Consortium ('ERIC'). With this letter, the Minister for Finance and I will now honour that promise.

Council Regulation (EC) No 723/2009 of 25 June 2009 on the Community legal framework for a European Research Infrastructure Consortium (ERIC)’ (OJ L 206, 8.8.2009, p. 1) establishes a legal framework laying down the requirements and procedures for and the effects of setting up a European Research Infrastructure Consortium.

The ERIC Regulation has been drawn up to facilitate the procedure for the establishment and operation of pan-European research facilities. The reason for drawing up the ERIC Regulation is that while it has long been recognised that world-class scientific research facilities are crucial to realising the objectives now set in Article 179 of the Treaty on the Functioning of the European Union, the requirements for setting up, funding and operating these research infrastructures still remain fragmented and differ from region to region. This means that the full potential of these infrastructures amongst other things to attract good scientists and carry out research for the benefit of society continues to be underutilised.

The main aim of the ERIC Regulation is to provide an alternative to the existing legal forms for the establishment and operation of common (European) research facilities. Up to now these facilities have mainly been set up either as an international treaty organisation (such as CERN) or as an organisation under national law; in the Netherlands, for example, a foundation like Stichting JIVE (named as an example during the standing committee meeting for Education, Culture and Science of 9 October 2009). The ERIC Regulation recognises that these two procedures are not equally suitable for all research facilities. The procedure for setting up an international treaty organisation on the basis of international law is time-consuming and can take a number of years. The same applies to adaptations of a treaty that are necessary to allow the organisation to anticipate quickly and adequately to changing circumstances. The main disadvantage of the different national procedures is that they do not form a clear common legal framework giving a legal personality to a research infrastructure on a pan-European scale.

As an alternative to the existing legal forms, the ERIC Regulation provides for the establishment of an ERIC as a legal person sui generis. That means that an ERIC derives its legal personality directly from the Regulation. An ERIC is therefore neither an organisation pursuant to international law, nor a public or private legal person pursuant to national law.

An ERIC may be set up by EU Member States, associated countries, third countries other than associated countries and intergovernmental organisations. For other conditions please refer to the ERIC Regulation itself. The procedure which the European Commission ('EC') follows for granting ERIC status has recently been formulated and described in the EC's 'Legal framework for a European Research Infrastructure Consortium - ERIC, Practical Guidelines', a copy of which is annexed to this letter.

I would like to say the following with regard to democratic control of the establishment and operation of an ERIC.

The authority to decide on applications to establish an ERIC lies formally with the European Commission. The EC's decision will be positive only if it is clear from the statutes and plans as described in the ERIC Regulation, and from an opinion delivered by an independent panel of experts to be set up by the EC, that a research facility may be given ERIC status. Before the EC takes its decision, under the comitology procedure it must first ask the opinion of a management committee, called the ERIC Management Committee. This committee normally consists of representatives of the Member States under the chairmanship of a representative of the EC. The Netherlands is represented by the Ministry of Education, Culture and Science.

Decisions to establish ERICs taken by the EC are subject to the parliamentary control of the European Parliament. For appearing on the management committee and for decisions of the Minister for Education, Culture and Science on acting as a host country or becoming a member of an ERIC, the Minister for Education, Culture and Science regards himself as fully responsible to the House of Representatives. The Minister will keep the House of Representatives informed through the appropriate channels on the exercise of these powers. Specifically, this means that you will be informed either by letter or via the Education, Culture and Science budget.

As regards the exercise of specified rights and the discharge of specified obligations as a member of the ERIC, the Netherlands may, under Article 9(4) of the ERIC Regulation, be represented by the Netherlands Organisation for Scientific Research (NWO), for instance, or by another organisation. Nevertheless, formal responsibility for exercising those rights and discharging those obligations remains with the State. Wherever the Netherlands is represented in an ERIC, this will always be on the basis of a clearly defined mandate.

As regards the supervision of financial flows to an ERIC, I can inform you as follows.

There are no plans at the moment for any flow of funds from the European Commission to an ERIC. For the time being, therefore, an ERIC will be funded primarily from Member States' contributions. These contributions may be paid either directly by a Member State or through an intermediary body. This will be determined for each ERIC in agreements both with the host country and with the parties concerned in the Netherlands. The payment of contributions is subject to the same parliamentary control as the payment of contributions to a treaty-based organisation.

The budgetary and accounting requirements as regards contributions are laid down in Article 13 of the ERIC Regulation. Control of the proper allocation of funds is subject to the legislative provisions of the country where the ERIC is legally established. Article 13 of the Regulation lays down, inter alia, that the revenue and expenditure shown in the budget have to be in balance; a balanced budget will form the basis for the Netherlands to participate in an ERIC. Participation in an ERIC will not lead to additional expenditure under the Education, Culture and Science budget.

In so far as an ERIC receives a separate subsidy for its activities from a administrative authority, the legal framework under which the subsidy is granted will determine the control of the proper allocation of funds.

The entirely unique character of an ERIC makes the existing procedures inapplicable. For example, the establishment of an ERIC does not fall within the conditional delegation clause 'voorhangprocedure' of Article 34 of the Government Accounts Act 2001 (Cw 2001) which provides for the creation of a legal person constituted under national private law . Besides this formal aspect, democratic control of the establishment of an ERIC is already regulated at EU level, so that applying Article 34 would lead to unnecessary duplication.

Because an ERIC is established by a decision of the European Commission, the national procedures as regards the drafting, approval and ratification of treaties are also inapplicable.

Finally I would like to report on the agreements that have been concluded with the Ministry of Finance. These agreements have to do with the declaration by the host country of an ERIC prescribed in Article 5(1)(d) of the ERIC Regulation, which forms a mandatory part of the written application to the EC to establish an ERIC. This concerns a declaration that the host country recognises the ERIC as an international body in the sense of Articles 143(g) and 151(1)(b) of Directive 2006/112/EC (the ‘VAT Directive’) and as an international organisation in the sense of the second indent of Article 23(1) of Directive 92/12/EEC (the ‘Excise Directive’). The specific limitations and conditions for exemptions referred to in these provisions must be laid down in a separate agreement between the members of the ERIC. It is agreed that there will be consultations on the actual drafting of this agreement between the Ministry of Education, Culture and Science and the Ministry of Finance whenever an ERIC is to be established. It is also agreed that if the Netherlands is to be a host country the Ministry of Finance issues a declaration confirming recognition as referred to in the two Directives. The decision is made on condition that the EC's decision on the ERIC is positive and enters into force on the date the ERIC is established.

The ERIC Regulation has cleared the way for speedy decision-making at EU level on the setting-up of pan-European research facilities. I am quite sure that the above arrangements will place the Netherlands in a particularly good position to act decisively at the national level too, which will help to make our country an attractive location for world-class international facilities.

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