ANNEX
STATUTES OF THE EUROPEAN SPALLATION SOURCE ERIC
PREAMBLE
Czech Republic
The Kingdom of Denmark
The Federal Republic of Germany
The Republic of Estonia
The French Republic
The Italian Republic
Hungary
The Kingdom of Norway
The Republic of Poland
The Kingdom of Sweden
The Swiss Confederation
Hereinafter referred to as ‘the Founding Members’, and:
The Kingdom of Belgium
The Kingdom of Spain
The Kingdom of the Netherlands
The United Kingdom of Great Britain and Northern Ireland
Hereinafter referred to as ‘the Founding Observers’,
DESIRING to further strengthen Europe's and the Founding Member countries' position in research in the world, and to intensify scientific cooperation across disciplinary and national boundaries;
CONSIDERING a conclusion made in 2003 by the European Strategy Forum for Research Infrastructure (ESFRI), set up by the EU Council of Research Ministers, that a 5 MW long-pulse, single target station layout with 22 instruments is the optimum technical design that will meet the needs of the European science community in the first half of the present century;
BUILDING on the current European Spallation Source ESS AB, the Memorandum of Understanding signed on 3 February 2011 (extended 2012 and 2014) on participation in the design update phase and the intention to participate in the construction and operation of the European Spallation Source (ESS);
RECOGNISING that the construction of the ESS is a key element in European efforts to further develop world-leading research infrastructures and that ESS is a multi-disciplinary science facility, serving life sciences, material sciences, energy, and climate sciences and underpins the vision behind the recommendations of the Organisation for Economic Cooperation and Development (OECD) for large-scale neutron facilities worldwide;
EXPECTING other countries to participate in the activities undertaken together under the following Statutes;
HEREBY HAVE AGREED AS FOLLOWS:
CHAPTER 1
GENERAL PROVISIONS
Article 1
Name, seat and working language
1. There shall be a European Research Infrastructure called the European Spallation Source (ESS).
2. The European Spallation Source (ESS) shall have the legal form of a European Research Infrastructure Consortium (ERIC) incorporated under the provision of Regulation (EC) No 723/2009 and be named European Spallation Source ERIC (‘the Organisation’).
3. The Organisation shall have its statutory seat in Lund, Sweden.
4. The working language of the Organisation shall be English.
Article 2
Tasks and activities
1. The task of the Organisation is to construct a high-intensity slow neutron source as described in the ESS Technical Design Report, an executive summary based on the ESS Technical Design Report dated 22 April 2013 which is attached as Annex 1, to a cost not exceeding EUR 1 843 million in January 2013 prices and to further operate, develop and decommission the facility. The construction costs are laid down in a cost book dated 13 March 2013 at 2013 prices that covers the overall expenditure. This cost book is the reference document for the members' contributions in cash and in kind.
2. To this end the Organisation shall undertake and coordinate a variety of activities, including but not limited to:
(a)
contribute to top-level research, technological development, innovation and societal challenges thus representing an added value for the development of the European Research Area (ERA) and beyond;
(b)
ensure a full scientific exploitation of the ESS and its suite of instruments;
(c)
grant effective access to users in accordance with the access policy set out in Article 17;
(d)
contribute to the dissemination of scientific results;
(e)
make optimum use of resources and know-how;
and any other related action necessary to achieve its task.
3. The Organisation shall construct and operate ESS on a non-economic basis. In order to further promote innovation as well as transfer of knowledge and technology, limited economic activities may be carried out as long as they do not jeopardise the main activities. Income from these activities shall be used in accordance with the Organisation's task.
4. The Organisation shall undertake activities for peaceful ends only.
CHAPTER 2
MEMBERSHIP
Article 3
Membership and representing entity
1. The following entities may become members of the Organisation or they may become observers without voting rights:
(a)
Member States of the Union;
(b)
associated countries;
(c)
third countries other than associated countries;
(d)
intergovernmental organisations.
Conditions for admission of members and observers are specified in Article 4.
2. The Organisation shall have one Member State and at least two other Member States or associated countries as members.
3. Member States or associated countries shall hold jointly the majority of the voting rights in the Council.
4. Any member or observer may be represented by one or more public entities, including private entities with a public service mission, of its own choosing and appointed according to its own rules and procedures.
5. The members and observers of the Organisation and their representing entities are listed in Annex 7. Annex 7 shall be kept up to date by the Chairperson of the Council.
Article 4
Admission of members and observers
1. The terms for admission of new members are the following:
(a)
the admission of new members shall require the approval of the Council;
(b)
applicants shall submit a written application to the Chairperson of the Council;
(c)
the application shall describe how the applicant will contribute to the task and activities of the Organisation described in Article 2 and how it will fulfil the obligations referred to in Article 6;
(d)
new members adhering to these Statutes within a period of 12 months after their entry into force may do so under the same conditions as the Founding Members;
(e)
the conditions for accession of new members shall be the subject of an agreement between the Organisation and the acceding member and approved by the Council;
(f)
new members which become members of the Organisation after one year of the entry into force of these Statutes shall be required to make a special contribution towards the capital expenditure of the Organisation already incurred in addition to their ordinary contribution to future capital investment, current operating costs and decommissioning costs.
2. Entities referred to in Article 3(1) who are willing to contribute to the Organisation, but are not yet in a position to join as members, may apply to the Council for observer status. The terms for admission of observers are the following:
(a)
normally observers shall be admitted for a three-year period; in exceptional cases the Council may extend the period of observer status;
(b)
applicants shall submit a written application to the Council.
The application shall describe how the applicant will contribute to the Organisation and its activities described in Article 2.
Article 5
Withdrawal of a member or an observer/termination of membership or observer status
1. A member may withdraw from the Organisation at the end of a financial year, following a request to be given to the Council three years prior to the withdrawal. Withdrawal can only take effect at the earliest on 31 December 2026.
2. Observers may withdraw at any time, following a request to the Council six months prior to the withdrawal.
3. The conditions and effects of withdrawal from the Organisation by a member, in particular its share in the costs of construction, operation and decommissioning of ESS and compensation for losses, shall be decided by the Council before the withdrawal of a member takes effect. That decision shall specify the member's share in the costs of decommissioning.
4. The Council shall have the power to terminate the membership of a member or the observer status of an observer if the following conditions are met:
(a)
the member or observer is in serious breach of one or more of its obligations under these Statutes;
(b)
the member or observer has failed to rectify such breach within a period of six months after it has received notice of the breach in writing.
Before the Council makes a decision of termination of a member or an observer the member or observer shall be given the opportunity to contest such decision and present its defence to the Council.
CHAPTER 3
RIGHTS AND OBLIGATIONS OF THE MEMBERS AND OBSERVERS
Article 6
Members
1. Rights of members shall include:
(a)
access to ESS for its scientific community under the conditions specified in Article 17;
(b)
the right to attend and vote in meetings of the Council. However, a member shall have no vote in a matter regarding that member's termination of its membership.
2. The Founding Members commit to making the following contributions, cash or in-kind, towards the construction costs including the contributions for the pre-construction phase listed in Annex 4 and cash contributions for the pre-construction phase and construction phase listed in Annex 5:
Czech Republic
5,52 M EUR
The Kingdom of Denmark
230 M EUR
The Federal Republic of Germany
202,5 M EUR
The Republic of Estonia
4,61 M EUR
The French Republic
147 M EUR
The Italian Republic
110,6 M EUR
Hungary
17,6 M EUR
The Kingdom of Norway
46,07 M EUR
The Republic of Poland
33,2 M EUR
The Kingdom of Sweden
645 M EUR
The Swiss Confederation
64,5 M EUR
All amounts refer to January 2013 prices.
The contribution of other members but Founding Members shall be in accordance with the membership contribution table that is laid down in Annex 6.
The pre-construction and construction costs include the total expenditures (personnel, costs, recurrent expenditure and capital expenditure) for the construction of ESS as specified in Annex 2. A list of approved in-kind contributions for the pre-construction phase is attached as Annex 4. A figure showing the estimated annual incidence of expenditure for construction, operation and decommissioning is included in Annex 2.
The basic rules and principles of in-kind contributions are laid down in Annex 3.
3. Each member shall:
(a)
pay its contribution towards the construction costs apportioned (planned amounts and schedule of payments) in the Annual budget decided in accordance with Article 9(10)(d);
(b)
contribute to the operating costs as provided for in Article 18 and to the decommissioning costs as provided for in Article 19;
(c)
if applicable, appoint one or more representing entities as mentioned in Article 3(4); and empower its representing entity with the full authority to vote on all issues raised during the Council meeting and included in the agenda.
4. Any resources of the Organisation, whether cash contributions or in-kind contributions shall be solely used to promote the task of the Organisation in accordance with Article 2.
Article 7
Observers
1. Rights of observers shall include:
(a)
the right to attend the Council without a vote;
(b)
the right to encourage its research community to participate in ESS events, such as summer schools, workshops, conferences, training courses at preferential rates, space permitting.
2. Each observer shall, if applicable, appoint one or more representing entities in accordance with Article 3(4).
CHAPTER 4
GOVERNANCE
Article 8
Organs of the Organisation
The organs of the Organisation shall be the Council and the Director-General.
Article 9
Council
1. The Council shall be the governing body of the Organisation and shall be composed of up to two delegates from each member of the Organisation. The delegates may be assisted by experts.
2. Delegates to the Council shall be appointed and have their appointments terminated according to principles decided by each member. Each member shall inform the Chairperson of the Council in writing of any appointment or termination of appointment of its delegates to the Council without undue delay.
3. The Council shall meet at least twice a year, and shall be responsible in accordance with the provisions of these Statutes for the overall direction and supervision of the Organisation with respect to scientific, technical and administrative matters. The Council may issue instructions to the Director-General.
4. The meetings of the Council shall be convened by the Chairperson. A meeting of the Council shall also be convened at the request of at least two members.
5. The Council shall elect a Chairperson and a Vice-Chairperson from the delegations of the members. The Vice-Chairperson shall substitute the Chair in his/her absence and in case of conflict of interest. With their election, the Chairperson and the Vice-Chairperson become supra-partes and leave their delegations. The Chair and the Vice-Chairperson shall be elected for a period of office not exceeding two years. Re-election shall be permitted once for a second term not exceeding two years.
6. The Council shall decide on its Rules of Procedure subject to the provisions in these Statutes.
7. The Council may set up such auxiliary committees as may be necessary to accomplish the task of the Organisation. The Council shall define the mandate of such committees.
8. Senior management staff, as defined by the Council, shall be appointed and may be dismissed by the Council.
9. The following matters shall require approval of the Council by unanimous vote:
(a)
increasing the construction costs as set out in Article 2(1);
(b)
changes of contributions to construction, operation and decommissioning costs;
(c)
proposal for amendment of these Statutes and amendment of its Annexes;
(d)
admission and termination of a membership or observer status.
Any amendment of the Statutes shall be subject to the provisions laid down in Article 9(3) and Article 11 of Regulation (EC) No 723/2009 as amended by the Council on 2 December 2013 (Council Regulation (EU) No 1261/2013 ( 1 ) ).
10. Decisions concerning the following shall require a qualified majority of the votes:
(a)
appointment of the Director-General as well as the suspension or dismissal of his/her appointment in accordance with Article 11;
(b)
election of Chairperson and Vice-Chairperson;
(c)
medium-term (five years) scientific programme;
(d)
annual budgets, five-year budget plans and medium-term (five years) financial estimates;
(e)
adoption of the annual financial statement;
(f)
policy for the allocation of and access to beam time;
(g)
the Financial Rules of the Organisation;
(h)
winding up of the Organisation;
(i)
significant changes to the ESS Technical Design Report and the cost book referred to in Article 2(1) without prejudice to paragraph 9 (a) and (b);
(j)
appointment and dismissal of senior management staff;
(k)
approval of the terms of reference and operation of the Science Advisory Committee (SAC) and the Technical Advisory Committee (TAC).
11. All other decisions of the Council shall require a simple majority.
Article 10
Voting procedure
1. Each member shall, until the operation phase starts, be entitled to a number of votes corresponding to its contribution to the cost of pre-construction and construction stated in Article 6(2). Once the operation phase starts this apportionment of votes shall, in review of the contributions, be revisited by the Council. Further revisions should take place at least every five years.
2. A ‘simple majority’ means a majority of more than 50 % of the votes of the members represented at the meeting and not more than half of the members voting against.
3. A ‘qualified majority’ means a majority of at least 67 % of the votes of the members represented at the meeting and not more than half of the members voting against.
4. A ‘unanimous vote’ means at least 90 % of the votes of the members represented at the meeting and no unfavourable vote.
5. Any Council meeting shall only be quorate if delegates of 67 % of all members are represented.
Article 11
Director-General
1. The Council shall, in accordance with Article 9(10)(a), appoint the Director-General of the Organisation according to a procedure adopted by the Council. The Director-General shall be the legal representative of the Organisation. The Director-General shall carry out the day-to-day management of the Organisation with due diligence and in accordance with these Statutes, the instructions and resolutions of the Council and applicable legal requirements.
2. The Director-General shall prepare and submit strategic, technical, scientific, legal, budgetary and administrative decisions to the Council. The Director-General shall present an annual activity report to the Council, and shall once a year present an audited financial statement to the Council.
3. In the event of the Director-General's post falling vacant, the Council may designate a person whose powers and responsibilities it shall determine to take the place of the Director-General.
4. The term for the Director-General shall not normally exceed five years. Amendment or extension of contracts of employment or assignment shall be subject to approval by Council.
Article 12
Administrative and Finance Committee (AFC), Scientific Advisory Committee (SAC) and Technical Advisory Committee (TAC)
1. The Council shall set up an Administrative and Finance Committee (AFC) composed of up to two delegates nominated from each member. The Chair of the AFC shall be appointed by the Council and will be supra-partes . The Committee shall advise the Council on all matters of administrative and legal issues and of financial management. The terms of reference of this Committee and its rules of procedure shall be adopted by the Council and incorporated into the Financial Rules.
2. The Council shall set up a Scientific Advisory Committee (SAC) and a Technical Advisory Committee (TAC). These Committees shall consist of outstanding scientists not employed by or otherwise immediately connected with the Organisation and shall advise the Council in scientific (SAC) and technical (TAC) matters and other matters of importance for the Organisation.
The members of SAC and TAC together with their respective Chairs shall be appointed by the Council in accordance with the Rules of Procedure. The terms of reference and operation of the SAC and the TAC shall be adopted by the Council.
CHAPTER 5
REPORTING TO THE COMMISSION
Article 13
Reporting to the Commission
1. The Organisation shall produce an annual activity report, containing in particular the scientific, operational and financial aspects of its activities. The report shall be approved by the Council and transmitted to the Commission and relevant public authorities within six months from the end of the corresponding financial year. This report shall be made publicly available.
2. The Organisation shall inform the Commission of any circumstances which threaten to seriously jeopardise the achievement of the tasks of the Organisation or hinder the Organisation from fulfilling requirements laid down in Regulation (EC) No 723/2009.
CHAPTER 6
POLICIES
Article 14
Agreement with third parties
In cases where the Organisation deems it beneficial, it may enter into agreement with any physical or legal person. Such agreement shall specify all rights and obligations of the parties.
Article 15
Procurement policy and tax exemption
1. The Council shall establish detailed rules on procurement procedures and criteria which the Organisation shall be obliged to follow. This procurement policy shall respect the principles of transparency, proportionality, mutual recognition, equal treatment and non-discrimination.
2. VAT exemptions based on Articles 143(1)(g) and 151(1)(b) of Council Directive 2006/112/EC ( 2 ) and in accordance with Articles 50 and 51 of Council Implementing Regulation (EU) No 282/2011 ( 3 ) , shall be limited to purchases by the Organisation and by members of the Organisation which are for the official and exclusive use by the Organisation, provided that such purchase is made solely for the non-economic activities of the Organisation in line with its activities. VAT exemptions shall be limited to purchases exceeding the value of EUR 300. Excise duty exemptions based on Article 12 of Council Directive 2008/118/EC ( 4 ) , shall be limited to purchases by the Organisation which are for the official and exclusive use by the Organisation, provided that such purchase is made solely for the non-economic activities of the Organisation in line with its activities and that the purchase exceeds the value of EUR 300.
Article 16
Liability
1. The Organisation shall be liable for its debts.
2. The members' financial liability for the debts of the Organisation shall be limited to the value of each individual member's respective annual contribution agreed upon in the annual budget.
3. The Organisation shall take appropriate insurance to cover the risks specific to the construction and operation of the ESS.
Article 17
Scientific evaluation and access policy
1. The Organisation shall provide effective access for European and international researchers as well as other relevant users. Access to the ESS shall be based on peer-review evaluation with scientific excellence and feasibility as criteria and granted on the basis of an access policy adopted by the Council. The access policy shall reflect the undertakings in Article 2(2)(a).
2. The ESS shall be open for access to others than members. Such access shall be open to European as well as international users and be available on the basis of the access policy adopted by Council.
Article 18
Operation
1. The members shall contribute to the operating costs of the Organisation proportionally to their use of the ESS. The general principles for the use of the facility and the apportionment of members' contributions to the operating costs shall be documented in a stand-alone policy agreed by the Council.
2. The Council shall create the prerequisites to avoid a lasting and significant imbalance between the use of the ESS facility by the scientific community of a member and the contribution of that member to the Organisation.
Article 19
Decommissioning
The members undertake to arrange the dismantling of all the Organisation's plant and buildings as specified in Annex 1. The members shall share the relevant decommissioning costs. This cost shall not exceed an amount equivalent to three annual operation budgets, based on the average of the last five years of cost of operation. Costs beyond this shall be the responsibility of the host state of the Organisation.
The Council shall develop and adopt a Decommissioning Policy containing a coherent and comprehensive description of the decommissioning procedure.
Article 20
Dissemination Policy
1. The Organisation shall be a facilitator of research and shall as a general rule encourage as free access as possible to research data. Irrespective of this principle the Organisation shall promote high quality research and shall support a culture of ‘best practice’ through training activities.
2. The Organisation shall generally encourage researchers to make their research results publicly available and shall request researchers of member countries to make results available in the name of the Organisation.
3. The dissemination policy shall describe the various target groups, and the Organisation may use several channels to reach the target audiences, such as web portals, newsletters, workshops, presence in conferences, articles in journals and magazines and daily newspapers.
Article 21
Intellectual property rights policy and data policy
1. The term ‘intellectual property’ shall be understood according to Article 2 of the Convention Establishing the World Intellectual Property Organisation signed on 14 July 1967.
2. The Organisation shall be the owner of all intellectual property emanating from setting up and running the ESS including, but not limited to, intellectual property produced by staff employed by the Organisation, except where covered by separate contractual agreements or where mandatory legislation or these Statutes state otherwise.
3. In general open access shall be favoured for data collected as a result of the use of the ESS facility and, to the extent possible in case of software and computer programs created by the Organisation, open-source principles shall be considered.
4. The Organisation shall adopt its own data and intellectual property rights policy.
Article 22
Inventions
The Organisation shall be subject to applicable legislation and regulations on inventions and adopt its own inventions policy.
CHAPTER 7
FINANCIAL MATTERS
Article 23
Financial year
The financial year of the Organisation shall begin on 1 January and shall end on 31 December of each year.
The first year of business shall be a short financial year beginning from the date of the entry into force of the Commission Implementing Decision establishing the Organisation and ending on 31 December of that year.
Article 24
Auditing and Financial Rules
1. The Director-General shall submit to the Administrative and Finance Committee (AFC) the budget documents as detailed in the Financial Rules which shall be revised and subsequently be submitted to the Council with the AFC's comments and recommendations.
2. The Council shall appoint external auditors who shall serve for a period of four years and may be reappointed. The auditors shall perform such functions as are laid down in the Financial Rules.
3. The Director-General shall provide the auditors with such information and assistance as they may require in order to perform their duties.
4. The accounts of the Organisation shall be accompanied by a report on budgetary and financial management of the financial year.
5. The Financial Rules shall lay down all other arrangements relating to the Organisation's budget, accounting standards and finances including rules regarding preparation, filing, auditing and publication of accounts.
CHAPTER 8
DURATION, WINDING UP, DISPUTES, SET-UP PROVISIONS
Article 25
Duration
The Organisation is established for an indefinite term.
Article 26
Winding up
1. The winding up of the Organisation shall be decided by the Council in accordance with Article 9(10)(h).
2. Without undue delay and in any event within 10 days after adoption of the decision to wind up the Organisation, the Organisation shall notify the Commission about the decision.
3. Assets remaining after payment of the debts of the Organisation shall be apportioned among the members in proportion to their accumulated annual contribution to the Organisation. In accordance with Article 16(2), liabilities remaining after including the Organisation assets shall be apportioned among the members in proportion to their annual contribution to the Organisation and be limited to the value of each individual member's respective annual contribution agreed upon in the annual budget.
4. Without undue delay and in any event within 10 days of the closure of the winding up procedure, the Organisation shall notify the Commission thereof.
5. The Organisation shall cease to exist on the day on which the Commission publishes the appropriate notice in the Official Journal of the European Union .
Article 27
Applicable law
The setting-up and internal functioning of the Organisation shall be governed by:
(a)
Union law and in particular the Council Regulation (EC) No 723/2009 of 25 June 2009 on the Community legal framework for a European Research Infrastructure Consortium (ERIC);
(b)
the law of the state where the Organisation has its statutory seat in the case of matters not, or only partly, regulated by acts referred to in point (a);
(c)
these Statutes and their implementing rules.
Article 28
Employment
1. The Organisation shall be an equal opportunity employer. A contract of employment shall be governed by the law of the country in which the employee habitually carries out his work in performance of the contract.
2. Subject to the requirements of national legislation, each member shall within its jurisdiction facilitate the movement and residence of nationals of the members' countries involved in the tasks of the Organisation and of the family members of such nationals.
Article 29
Disputes
1. The Court of Justice of the European Union shall have jurisdiction over litigation among the members in relation to the Organisation, between the members and the Organisation and over any litigation to which the Union is a party.
2. Union legislation on jurisdiction shall apply to disputes between the Organisation and third parties. In cases not covered by Union legislation, the law of the State where the Organisation has its statutory seat shall determine the competent jurisdiction for the resolution of such disputes.
Article 30
Availability of Statutes
The Statutes shall be publicly available at the ESS website and at the statutory seat.
Article 31
Setting-up provisions
1. A constitutional meeting of the Council shall be called by the host state as soon as possible but no later than 45 calendar days after the Commission decision to set up the Organisation takes effect.
2. The host state shall notify the Founding Members of any specific urgent legal action that needs to be taken on behalf of the Organisation before the constitutional meeting is held. Unless a Founding Member objects within 5 working days after being notified, the legal action shall be carried out by a person duly authorised by the host state.
CHAPTER 9
ANNEXES AND LANGUAGES
Article 32
Annexes
To these Statutes the following Annexes are attached:
1.
ESS technical and scientific scope
2.
Estimated cost and schedule
3.
Basic rules and principles for in-kind contributions
4.
List of approved in-kind contributions for the pre-construction phase
5.
List of cash contributions already received for the pre-construction and the construction phases
6.
Contribution table
7.
Members, observers and representing entities
Article 33
Languages
All versions of these Statutes in the official languages of the European Union shall be deemed authentic. No linguistic version shall prevail.
( 1 ) Council Regulation (EU) No 1261/2013 of 2 December 2013 amending Regulation (EC) No 723/2009 concerning the Community legal framework for a European Research Infrastructures Consortium (ERIC) ( OJ L 326, 6.12.2013, p. 1 ).
( 2 ) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax ( OJ L 347, 11.12.2006, p. 1 ).
( 3 ) Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax ( OJ L 77, 23.3.2011, p. 1 ).
( 4 ) Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC ( OJ L 9, 14.1.2009, p. 12 ).
