(3)

While traditional support for the use and development of European research infrastructures has essentially taken the form of grants in favour of established research infrastructures in the Member States, the need for additional efforts has become apparent in recent years in order to stimulate the development of new structures by creating an appropriate legal framework which should facilitate their establishment and operation at the level of the Community.

(3)

While traditional support for the use and development of European research infrastructures has essentially taken the form of grants in favour of established research infrastructures in the Member States, the need for additional efforts has become apparent in recent years in order to stimulate the development of new structures or to upgrade existing structures in order to optimise their use by creating an appropriate legal framework which should facilitate their establishment and operation at the level of the Community.

(4)

This need has been expressed on numerous occasions both at political level by the Member States and the Community institutions, as well as by the various actors within the European research community such as undertakings, research centres and universities.

(4)

This need has been expressed on numerous occasions both at political level by the Member States and the Community institutions, as well as by the various actors within the European research community such as undertakings, research centres, universities and, in particular, the European Strategy Forum on Research Infrastructures (ESFRI).

(6a)

(7)

In contrast to Joint Technology Initiatives (JTI) constituted as Joint Undertakings of which the Community is a member and to which it makes financial contributions, a European Research Infrastructure (hereinafter referred to as “ERI” ) should not be conceived as a Community body within the meaning of Article 185 of the Financial Regulation, but as a legal entity of which the Community is not necessarily a member and to which it does not make financial contributions within the meaning of Article 108(2), point (f), of the Financial Regulation.

(7)

In contrast to Joint Technology Initiatives (JTI) constituted as Joint Undertakings of which the Community is a member and to which it makes financial contributions, an ERI should not be conceived as a Community body within the meaning of Article 185 of the Financial Regulation, but as a legal entity of which the Community is not a member and to which it does not make financial contributions within the meaning of Article 108(2), point (f), of the Financial Regulation. This should not apply where the Community becomes a member of an ERI and makes a relevant financial contribution referred to in Article 185(1) of the Financial Regulation. Community funding of eris should, in all cases, be subject to the relevant provisions of the Financial Regulation.

(8)

Given the close cooperation between Member States and the Community in programming and implementing their respective research activities in a complementary manner, as set out in Articles 164 and 165 of the Treaty, it should be for interested Member States, on their own or in conjunction with other qualified entities, to define their needs for the establishment of research infrastructures based on their research and technological development activities and on the requirements of the Community. For the same reasons, membership of an ERI should be open for interested Member States with the possible participation of qualified third countries and specialised intergovernmental organisations.

(8)

Given the close cooperation between Member States and the Community in programming and implementing their respective research activities in a complementary manner, as set out in Articles 164 and 165 of the Treaty, it should be for interested Member States, to define their needs for the establishment of research infrastructures based on their research and technological development activities and on the requirements of the Community. For the same reasons, membership of an ERI should be open for interested Member States with the possible participation of qualified third countries and specialised intergovernmental organisations.

(9)

A European Research Infrastructure (hereinafter referred to as “ERI”) set up under this Regulation should have as its task the establishment and operation of a research infrastructure. It should do so on a non-economic basis in order to prevent distortions of competition. In order to promote innovation and knowledge and technology transfer, the ERI should be allowed to carry out some limited economic activities on certain conditions. The establishment of research infrastructures as ERIs does not exclude that research infrastructures of pan-European interest that have another legal form can equally be recognised as contributing to the implementation of the roadmap developed by the European Strategy Forum for Research Infrastructure (ESFRI) and to the progress of European research. The Commission will ensure that ESFRI members and other interested parties are informed about these alternative legal forms.

(9)

The establishment of research infrastructures as ERIs under this Regulation does not exclude that research infrastructures of pan-European interest that have another legal form can equally be recognised as contributing to the progress of European research. The Commission will ensure that interested parties are informed about these alternative legal forms.

(10)

Research infrastructures should help to safeguard scientific excellence of Community research and the competitiveness of its economy, as based on medium-term to long-term forecasts, through the efficient support of European research activities. To achieve this they should be effectively open to the European research community at large and have the ambition to enhance the European scientific capabilities beyond the current state of the art and thereby contribute to the development of the European Research Area.

(10)

Research infrastructures should help to safeguard scientific excellence of Community research and the competitiveness of its economy, as based on medium-term to long-term forecasts, through the efficient support of European research activities. To achieve this they should be effectively open to the European research community at large in accordance with the rules established in their Statutes and have the ambition to enhance the European scientific capabilities beyond the current state of the art and thereby contribute to the development of the European Research Area , in particular by promoting synergies with the EU cohesion policy.

(10a)

(12)

For reasons of transparency, the decision of setting up an ERI should be published in the Official Journal of the European Union. For the same reasons, an extract from the Statutes, providing their essential elements, should be annexed to that decision.

(12)

For reasons of transparency, the decision of setting up a research infrastructure as an ERI should be published in the Official Journal of the European Union. For the same reasons, an extract from the Statutes, providing their essential elements, should be annexed to that decision.

(14)

Membership of an ERI must comprise at least three Member States and may include qualified third countries and specialised intergovernmental organisations. Therefore, an ERI should qualify as an international body or organisation for the purpose of the application of the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in conformity with State aid rules. In order to support more effectively the research activities of the ERI, Member States and participating third countries should take all possible measures to accord to such ERI the most extensive exemption from other taxes.

(14)

Membership of an ERI must comprise at least three Member States and may include qualified third countries and specialised intergovernmental organisations. Therefore, an essential provision of this Regulation should be that an ERI should qualify as an international body or organisation for the purpose of the application of the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in conformity with State aid rules. In order to support more effectively the research activities of the ERI, thereby making them more competitive at global level, Member States and participating third countries should take all possible measures to accord to such ERI the most extensive exemption from other taxes.

(17)

It is necessary to ensure that, on the one hand, an ERI has flexibility to amend its Statutes and, on the other hand, that the Community which sets up the ERI retains control over certain essential elements. If an amendment concerns a matter covered in the extract from the Statutes annexed to the decision setting up the ERI, such amendment has to be approved, prior to taking effect, by a Commission decision taken following the same procedure as the one for setting up the ERI, since the information contained therein is considered as essential. Any other amendment should be notified to the Commission which has an opportunity to object if it considers it contrary to this Regulation. If no objection is raised, an appropriate notice accompanied by a concise summary of the amendment should be published.

(17)

It is necessary to ensure that, on the one hand, an ERI has flexibility to amend its Statutes and, on the other hand, that the Community which sets up a research infrastructure as an ERI retains control over certain essential elements. If an amendment concerns a matter covered in the extract from the Statutes annexed to the decision setting up the ERI, such amendment has to be approved, prior to taking effect, by a Commission decision taken following the same procedure as the one for setting up the ERI, since the information contained therein is considered as essential. Any other amendment should be notified to the Commission which has an opportunity to object if it considers it contrary to this Regulation. If no objection is raised, an appropriate notice accompanied by a concise summary of the amendment should be published.

(20)

ERIs may receive co-funding from Cohesion Policy financial instruments in conformity with Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999.

(20)

ERIs may receive co-funding from Cohesion Policy financial instruments in conformity with Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 , and Council Regulation (EC) No 1084/2006 of 11 July 2006 establishing a Cohesion Fund  (1).

(22)

As the ERI is established under Community law, it should be governed by Community law, next to the law of the country where it has its statutory seat. However, the ERI could have a place of operation in another country . In that case, the law of that country should apply as regards public and occupational health and safety, environmental protection, treatment of hazardous substances and issuance of permits required. Further, an ERI should be governed by its Statutes adopted in compliance with the preceding sources of law, and by implementing rules complying with the Statutes.

(22)

As the ERI is established under Community law, it should be governed by Community law, next to the law of the country where it has its statutory seat. However, the ERI could have places of operation in other countries . In that case, the law of these countries should apply as regards public and occupational health and safety, environmental protection, treatment of hazardous substances and issuance of permits required. Further, an ERI should be governed by its Statutes adopted in compliance with the preceding sources of law, and by implementing rules complying with the Statutes.

(23)

In order to ensure sufficient control of compliance with this Regulation, an ERI should submit to the Commission the annual report of the ERI and any information about circumstances threatening to seriously jeopardise the achievement of the tasks of the ERI . If the Commission obtains indications, through the annual report or otherwise, that the ERI acts in serious breach of this Regulation or other applicable law, it shall request explanations and/or actions from the ERI and/or its members. In extreme cases and if no remedial action is taken, the Commission may repeal the decision setting up the ERI; this will trigger the winding up of the ERI.

(23)

In order to ensure sufficient control of compliance with this Regulation, an ERI should submit to the Commission the annual report and any information about circumstances threatening to seriously jeopardise the achievement of its objective . If the Commission obtains indications, through the annual report or otherwise, that the ERI acts in serious breach of this Regulation or other applicable law, it shall request explanations and/or actions from the ERI and/or its members. In extreme cases and if no remedial action is taken, the Commission may repeal the decision setting up the ERI; this will trigger the winding up of the ERI.

(23a)

(24)

Since the objectives of the action to be taken; i.e. the establishment of a framework for European Research Infrastructures between Member States, cannot be sufficiently achieved by the Member States in the framework of their national constitutional systems, therefore, by reason of the trans-national nature of the problem, these objectives can better be achieved at Community level. The Community may therefore adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(24)

Since the objectives of the action to be taken; i.e. the establishment of a framework for ERIs set up collectively by Member States, cannot be sufficiently achieved by the Member States in the framework of their national constitutional systems, therefore, by reason of the trans-national nature of the problem, these objectives can better be achieved at Community level. The Community may therefore adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(b)

it represents an added value in the development of the European Research Area and a significant improvement in the relevant scientific and technological fields at international level;

(b)

it represents an added value in the development of the European Research Area including by unlocking research potential in all EU regions, and by improving research methods, a significant improvement in the relevant specialist scientific and technological fields at international level;

(c)

the European research community, composed of researchers from Member States and from countries associated to the Community research, technological development and demonstration programmes can effectively have access to it; and

(c)

it is effectively accessible to the European research community, composed of researchers from Member States and from countries associated to the Community research, technological development and demonstration programmes , in accordance with the rules established in its Statutes ;

(ca)

(da)

(a)

a request to the Commission to set up the ERI;

(a)

a request to the Commission for a research infrastructure to be set up as an ERI;

(c)

a technical and scientific description of the research infrastructure to be established and operated by the ERI, addressing in particular the requirements set out in Article 3.

(c)

a technical and scientific description of the research infrastructure to be set up as an ERI, and the socio-economic effects and the contribution to the EU’s convergence objectives, addressing in particular the requirements set out in Article 3;

(a)

adopt a decision setting up the ERI after it has satisfied itself that the requirements laid down in this Regulation are met; or

(a)

adopt a decision setting up the research infrastructure as an ERI after it has satisfied itself that the requirements laid down in this Regulation are met; or

(b)

tasks and activities of the ERI;

(b)

objective and activities of the ERI;

(e)

rights and obligations of the members, including the obligation to make contributions to a balanced budget;

(e)

rights and obligations of the members, including the obligation to make contributions to a balanced budget and voting rights ;

(i)

access policy for users;

(i)

access policy for users based on scientific excellence ;

(ia)

(via)

(ja)

(a)

by Community law, in particular this Regulation and the decisions referred to in Articles 5(1)(a) and 10(1);

(a)

by Community law, in particular this Regulation and the decisions referred to in Articles 5(1)(a) and 10(1) and the Financial Regulation where applicable ;