1. CNRS Legal Department experiences of ERIC
Marie GANDON

2. SUMMARY
1 I Main possible legal structures for CTA
2 I Experiences of ERIC

3. Cooperation agreement
1 I Main possible legal structures for CTA
[1] SC : Société civile (Cf. Non-profit organisation)
[2] EEIG : European Economic Interest Grouping
[3] ERIC: European Research Infrastructure Consortium
Characteristics
Cooperation agreement
Association
SC (1)
EEIG (2)
ERIC (3)
Pros
- Process of setting-up quick and very simple and flexible (can be shaped to fit the needs of the founders)
-Flexibility for membership issues
- May be a good way of starting a collaboration before moving forward to a legal entity
- Process of setting-up quick simple and flexible (can be shaped to fit the needs of the founders)
-Adapted to public and private needs
-Fiscal transparency
-Process of creation easy with only a national registration
- Well known and frequently used for the management of European facilities
-Flexible tool for European cooperation.
-Process of creation simple: a written formation contract at a national trade register
-May shorten negotiations between members about the structure to adopt
-European label
-VAT exemption if agreement between members
-Not submitted to public procurement rules, only principles of transparency, non discrimination and competition
Cons
- No legal personality
- Very weak identity
- May provide a too weak working frame for a structure with many partners
- Fundings have to be managed by one of its members, which may be problematic if the funds are important
- Idem for recruitments
- No EU label
- National instrument which may limit investment by other nations
-Joint and unlimited liability
-Membership limited to EU members
-Recruitment of 500 employees max.
-Application of the EEIG EU regulation and of the national law of the seat
-Lack of legal personality in some MS (i.e. Germany and Italy)
-Limitation of the activities of the EEIG (facilitating or developing the economic activities of the members)
-Limitation of private partner participation
-Large control by the Commission (but no financing)
-High level of signature (States, IO)
-Risk seeing the decision establishing the ERI repealed in case of breach of the ERIC criteria
-Still many uncertainties about this new structure : delays and criteria of assessment of ERI project by the Commission, functioning of the VAT exemption, …

4. 2 I Experiences of ERIC : Gouvernance study
DARIAH
ICOS
ELI
The CNRS legal department has participated in 3 main projects of ERIC.
DARIAH et ELI : in the framework of a WP legal
-ICOS : in providing legal advices punctually.

5. DARIAH
advisory body, which shall provide advice and guidance to the General Assembly on scientific and technical matters.
prepares an annual report for the General Assembly on current technological and scientific advancements including recommendations for improving the DARIAH infrastructure.
consists of between six (6) and twelve (12) qualified individuals, appointed by the General Assembly.
supreme organ of DARIAH ERIC and shall have full decision-making powers.
consists of the representatives of all Members, with voting rights, and the representatives of the Observers, without voting rights.
executive organ and the legal representative of DARIAH.
composed of three (3) Directors, appointed by the General Assembly.
The mission of DARIAH is to enhance and support digitally-enabled research across the humanities and arts. DARIAH aims to develop and maintain an infrastructure in support of ICT-based research practices.
Gouvernance :
The CNRS will be a Member of DARIAH ERIC whose head office will be in France.
We have two types of Countries or Institutions participating in this ERIC.
Members / Observers :
Members shall participate fully in the work of DARIAH ERIC. They shall have at least the rights to:
participate and vote in the General Assembly;
chair a VCC , and
use all tools and services of DARIAH ERIC.
An Observer in DARIAH ERIC shall have the opportunity to utilise all tools and services and to participate in all activities. Additionally, an Observer shall have the right to be present and take the floor in all General Assembly meetings but without voting rights.
Powers :
General Assembly :
supreme organ of DARIAH ERIC and shall have full decision-making powers.
consists of the representatives of all Members, with voting rights, and the representatives of the Observers, without voting rights.
The General Assembly shall notably be competent to:
approve each Partner Institution’s in-kind annual contribution
accept new Members, Observers, and Cooperating Partners
approve the Financial Reports and the Annual Report of the Activities
appoint or dismiss members of the Scientific Board
adopt all necessary Implementing Rules
decide its internal Rules of Procedure
approve the annual Budget
approve the strategic orientation and the activity programme
appoint or dismiss the members of the Board of Directors
amend the Statutes
expel Members and Observers
dissolve DARIAH ERIC.
The Board of Directors :
The Board of Directors shall represent DARIAH ERIC before all European, international and national authorities and courts.
It shall be responsible for the overall operation of DARIAH ERIC, implementing the decisions of the General Assembly while giving due consideration to the recommendations of the Scientific Board.
It shall implement the strategic decisions of the General Assembly, by creating the necessary policies.
It shall sign on behalf of DARIAH ERIC all contracts, agreements and other binding documents.
The Scientific Board :
advisory body, which shall provide advice and guidance to the General Assembly on scientific and technical matters.
prepares an annual report for the General Assembly on current technological and scientific advancements including recommendations for improving the DARIAH infrastructure.
A distributed unit, which is responsible for the coordination of the activities of the DARIAH-ERIC.
It supports and integrates all levels of DARIAH ERIC
In its role as a coordinator, the DCO oversees the interactions with all DARIAH ERIC partners and boards and takes on a variety of vertical tasks (e.g. controlling administrative procedures) and horizontal tasks (e.g. central services, overall financing, legal and tax requirements, transfer of skills and knowledge).

6. DARIAH (2)
VCC :
DARIAH ERIC shall organise its operation around Virtual Competency Centres.
Each of the VCCs shall address particular areas of expertise and shall undertake all related responsibilities, especially regarding the provision of the relevant services.
The Coordination Board :
The Coordination Board shall be the operational organ of DARIAH ERIC.
It shall consist of the members of the Board of Directors, all VCC Heads and one delegate appointed by each Member and each Observer.
Representatives of the DARIAH-EU Coordination Office (DCO) will be invited to attend the Coordination Board.
The President of the Board of Directors shall chair the Coordination Board.
The Coordination Board, in cooperation with the relevant officers of the DARIAH-EU Coordination Office (DCO), shall assist the Board of Directors in preparing the budget, the Annual Report of activities and the financial statement. The Board of Directors will present these reports to the General Assembly for approval.
What’s the news about DARIAH ?
The MoU was signed. Statutes are completed.
Signatures will be requested this year after verification from the European Commission that the DARIAH-ERIC Step 1 Application is compliant with the ERIC Regulation.
Nevertheless, for the moment the wording of the VAT exemption (Article 52) in the draft DARIAH-ERIC statutes is still under discussion between the legal experts of the French and German Ministries.

7. ICOS ICOS : - The Missions of ICOS are :
To provide the long-term observations required to understand the present state and predict future behavior of the global carbon cycle and greenhouse gas emissions.
To monitor and assess the effectiveness of carbon sequestration and/or greenhouse gases emission reduction activities on global atmospheric composition levels, including attribution of sources and sinks by region and sector.
The seat of the ERIC will be at Helsinki in Finland.
- At that time we are working on a possible conflict of interest between some bodies.
For Sweden, Finland and Czech Republic, the proposed function and composition of the EB is troublesome.
The EB oversees the operational management and makes decisions accordingly. It also runs the day to day activities and is entitled to make recommendations/decisions accordingly.
Operations happen in central facilities which are not part of the ERIC as they are independent institutions. The director represents the independent institution and it is the responsibility of the director to take care that responsibilities agreed with the ERIC are taken care of. If the director is a member of the EB, and the EB has administrative power as suggested, the director has responsibility and power to decide on its own behalf whether its independent facility has fulfilled its duties as agreed upon with the ERIC and what should be done differently. So in fact the director as a member of the EB oversees and decides whether he has fulfilled his contractual obligations or not in accordance with the contract made between the central facility and the ERIC. Similarly, when EB oversees operational management and gives guidance and orders to the facilities the director, as the member of the EB, gives orders to himself and to this independent organisation he represents.
This position is drawn on the Finnish Legislation.
For them the problem could be solved by two ways:
-First by giving administrative power to the DG so that the DG runs and is responsible for day to day actions, approves and accepts contracts and other commitments as well as oversees that the facilities fulfil their obligations in accordance with contracts, and if not, makes recommendations to the GA to take actions. The DG thus would need direct link to the GA. In this case the EB could be responsible for e.g. the scientific orientation and coordination of ICOS. ---The other option is to leave the administrative and executive power to the EB in which case we cannot allow the directors of the facilities be members of the EB.
On the other side, France Germany and Italy are working on other proposals :
a)    Create a bicephalous system (a management board for the financial aspects and a board of directors for the strategic aspects)
b)    To establish a commission of GA members with the objective of overseing the transfer of powers.

8. ELI
ELI will be a new scientific infrastructure devoted to scientific research in lasers' field, dedicated to the investigation and applications of laser-matter interaction at the highest intensity level.
The Preparatory Phase is now completed.
The Coordinator was France but now it is Hungary, Czech Republic, and Romania.
The provided structure is an ERIC whose head office will be in one of the 3 host countries : Hungary, Czech Republic , and Romania.
Each of the 3 countries will build a laser with their structural funds and are assisted by the other countries who will provide in-kind contributions.
At the beginning, the laser had every chance to be built in France. But fundings were missing, while structural funds of the 3 other countries were sufficient to build lasers.
So, the Project has changed and now that’s four lasers instead of one that will be built.
The fourth site is unknown for the moment. It was under discussion it may be in France but we don’t know if it is still relevant today.
France, who was Coordinator at the origin of the Project, is now staying in the backgroung. Nevertheless, as France is still interested by becoming a Member of this ERIC, the CNRS legal department will provide its legal position on the statutes project before a french approval and then signature. But no calendar for that has been schedulded for the moment.