Key Benefits:
22004A0205(02)
Agreement on Scientific and Technological Cooperation between the
European Community and the European Atomic Energy Community, of the
one part, and the Swiss Confederation, of the other part
Dates:
of document: 16/01/2004
of effect: 00/00/0000; Entry into force See Art 14.1
of effect: 01/01/2004; Provisional application See Art 14.2
of signature: 16/01/2004; Brussels
end of validity: 99/99/9999
Authentic language: German ; English ; Danish ; Spanish ; French ;
Finnish ; Greek ; Italian ; Dutch ; Portuguese ; Swedish
Author:
Council ; Switzerland
Subject matter: External relations ; Cooperation ; Research and
technological development
Directory code: 11401010
EUROVOC descriptor: EC cooperation agreement ; Switzerland ; EAEC ;
scientific cooperation ; technical cooperation ; nuclear energy
Legal basis:
102E170................... Adoption
102E300-P2L1FR1...........
Instruments cited:
302D0668..................
302D0834..................
302D0835..................
302D0836..................
302D0837..................
302D0838..................
302D1513..................
302R2321..................
302R2322..................
Agreement
on Scientific and Technological Cooperation between the European
Community and the European Atomic Energy Community, of the one part,
and the Swiss Confederation, of the other part
THE COUNCIL OF THE EUROPEAN UNION, acting on behalf of the European
Community, and THE COMMISSION OF THE EUROPEAN COMMUNITIES
(hereinafter referred to as "the Commission"), acting on behalf of
the European Atomic Energy Community, hereinafter referred to
collectively as "the Communities",
of the one part, and
THE SWISS FEDERAL COUNCIL, acting on behalf of the Swiss
Confederation, hereinafter referred to as "Switzerland",
of the other part,
hereinafter referred to as "the Parties",
CONSIDERING that the close relationship between Switzerland and the
Communities is of benefit to the Parties;
CONSIDERING the importance of scientific and technological research
for the Communities and for Switzerland and their mutual interest in
cooperating in this matter in order to make better use of resources
and to avoid unnecessary duplication;
WHEREAS Switzerland and the Communities are currently implementing
research programmes in fields of common interest;
WHEREAS the Communities and Switzerland have an interest in
cooperating on these programmes to their mutual benefit;
CONSIDERING the interest of the Parties in encouraging the mutual
access of their research entities to research and technological
development activities in Switzerland, on the one hand, and to the
Communities' Framework Programmes for research and technological
development, on the other;
WHEREAS the European Atomic Energy Community and Switzerland
concluded a Cooperation Agreement in 1978 in the field of controlled
thermonuclear fusion and plasma physics (hereinafter referred to as
the "Fusion Agreement");
WHEREAS the Parties concluded a Framework Agreement on 8 January
1986 for scientific and technical cooperation, which entered into
force on 17 July 1987 (hereinafter referred to as "the Framework
Agreement");
CONSIDERING that Article 6 of the Framework Agreement states that
the cooperation aimed at by the Framework Agreement is to be carried
out through appropriate agreements;
WHEREAS on 21 June 1999 the Communities and Switzerland signed an
Agreement on Scientific and Technological Cooperation(1), which
expired on 31 December 2002;
CONSIDERING that Article 9(2) of the abovementioned Agreement
provides for renewal of the Agreement with a view to participation
in new multiannual Framework Programmes for research and
technological development, under mutually agreed conditions;
WHEREAS the Sixth Framework Programme of the European Community for
research, technological development and demonstration activities
(2002 to 2006) (hereinafter referred to as "the Sixth EC Framework
Programme") was adopted by Decision No 1513/2002/EC(2) and
Regulation (EC) No 2321/2002(3) of the European Parliament and of
the Council, and by Council Decisions 2002/834/EC(4), 2002/835/EC(5)
and 2002/836/EC(6) and the Sixth Framework Programme of the European
Atomic Energy Community (Euratom) for nuclear research and training
activities, also contributing to the creation of the European
Research Area (2002 to 2006) was adopted by Council Decision
2002/668/Euratom(7), Council Regulation (Euratom) No 2322/2002(8)
and Council Decisions 2002/837/Euratom(9) and 2002/838/Euratom(10)
(hereinafter referred to as "the Sixth EC and Euratom Framework
Programmes");
WHEREAS without prejudice to the provisions of the Treaties
establishing the Communities, this Agreement and any activities
entered into under it will in no way affect the powers vested in the
Member States to undertake bilateral activities with Switzerland in
the fields of science, technology, research and development, and to
conclude, where appropriate, agreements to that end,
HAVE AGREED AS FOLLOWS:
Article 1
Subject matter
1. The form and conditions of Swiss participation in the
implementation of the whole of the Sixth EC and Euratom Framework
Programmes shall be as laid down in this Agreement, without
prejudice to the terms of the Fusion Agreement. Legal entities
established in Switzerland may participate in all the specific
programmes of the Sixth EC and Euratom Framework Programmes.
2. Swiss legal entities may participate in the activities of the
Joint Research Centre of the Communities, as far as this
participation is not covered by paragraph 1.
3. Legal entities established in the Communities, including the
Joint Research Centre, may participate in research programmes and/or
projects in Switzerland on themes equivalent to those of the
programmes of the Sixth EC and Euratom Framework Programmes.
4. For the purposes of this Agreement "legal entity" means any
natural or any legal person created under the national law at its
place of establishment or under Community law, having legal
personality and being entitled to have rights and obligations of any
kind in its own name. This shall include, inter alia, universities,
research organisations, industrial companies, including small and
medium-sized enterprises, and individuals.
Article 2
Forms and means of cooperation
Cooperation shall take the following forms:
1. Participation of legal entities established in Switzerland in all
specific programmes adopted under the Sixth EC and Euratom Framework
Programmes, in accordance with the terms and conditions laid down in
the rules for the participation of undertakings, research centres
and universities both in research, technological development and
demonstration activities of the European Community and in research
and training activities of the European Atomic Energy Community.
Switzerland shall be taken into consideration, alongside the Member
States of the European Union, for any indirect action under the
Sixth EC Framework Programme based on Article 169 of the Treaty
establishing the European Community, subject to participation in the
same indirect action by at least two Member States or associated
candidate countries.
2. Financial contribution by Switzerland to the budgets of the
programmes adopted for the implementation of the Sixth EC and
Euratom Framework Programmes, as defined in Article 5(2).
3. Participation of legal entities established in the Communities in
Swiss research programmes and/or projects decided by the Federal
Council on themes equivalent to those of the Sixth EC and Euratom
Framework Programmes, in accordance with the terms and conditions
laid down in the relevant Swiss regulations and with the agreement
of the partners in the specific project and the management of the
corresponding Swiss programme. Legal entities established in the
Communities participating in Swiss research programmes and/or
projects shall cover their own costs, including their relative share
of the project's general management and administrative costs.
4. In addition to timely provision of information and documentation
concerning the implementation of the Sixth EC and Euratom Framework
Programmes and of the Swiss programmes and/or projects, the
cooperation between the Parties may include the following forms and
means:
(a) regular exchanges of views on research policy guidelines and
priorities and plans in Switzerland and in the Communities;
(b) exchanges of views on the prospects and development of
cooperation;
(c) timely exchanges of information on the implementation of the
research programmes and projects in Switzerland and in the
Communities and on the results of the work undertaken under this
Agreement;
(d) joint meetings;
(e) visits and exchanges of researchers, engineers and technicians;
(f) regular contacts and follow-up between programme or project
leaders in Switzerland and in the Communities;
(g) participation by experts in seminars, symposia and workshops.
Article 3
Adaptation
Cooperation may be adapted and developed at any time by mutual
agreement between the Parties.
Article 4
Intellectual property rights and obligations
1. Subject to Annex A and applicable law, legal entities established
in Switzerland participating in the Communities' research programmes
shall, as regards ownership, exploitation and dissemination of
information and intellectual property arising from such
participation, have the same rights and obligations as legal
entities established in the Communities. This provision shall not
apply to the results obtained from projects started before the entry
into force of this Agreement.
2. Subject to Annex A and applicable law, legal entities established
in the Communities taking part in Swiss research programmes and/or
projects, as provided for in Article 2(3), shall, as regards
ownership, exploitation and dissemination of information and
intellectual property arising from such participation, have the same
rights and obligations as legal entities established in Switzerland
participating in the programmes and/or projects in question.
Article 5
Financial provisions
1. Commitments entered into by the Communities prior to the entry
into force of this Agreement - as well as the payments which result
from these - shall give rise to no contribution on the part of
Switzerland. Switzerland's financial contribution deriving from
participation in the implementation of the Sixth EC and Euratom
Framework Programmes shall be established in proportion to and in
addition to the amount available each year in the general budget of
the European Union for commitment appropriations to meet the
Commission's financial obligations stemming from work to be carried
out in the forms necessary for the implementation, management and
operation of the programmes and activities covered by this
Agreement.
2. The proportionality factor governing Switzerland's contribution
to the Sixth EC and Euratom Framework Programmes, except the Fusion
Programme, shall be obtained by establishing the ratio between
Switzerland's gross domestic product, at market prices, and the sum
of gross domestic products, at market prices, of the Member States
of the European Union. The Swiss contribution to the Fusion
Programme shall continue to be calculated on the basis of the
corresponding agreement.
This ratio shall be calculated on the basis of the latest
statistical data from Eurostat, available at the time of publication
of the preliminary draft budget of the European Union for the same
year.
3. The rules governing Switzerland's financial contribution are set
out in Annex B.
Article 6
Switzerland/Communities Research Committee
1. The Switzerland/Communities Research Committee set up in the
Framework Agreement shall review, evaluate and ensure the proper
implementation of this Agreement. Any issues arising from the
implementation or interpretation of this Agreement shall be referred
to this Committee.
2. The Committee may decide to amend the references to Community
acts in Annex C.
Article 7
Participation
1. Without prejudice to the provisions of Article 4, legal entities
established in Switzerland participating in the Sixth EC and Euratom
Framework Programmes shall have the same contractual rights and
obligations as entities established in the Communities.
2. For legal entities established in Switzerland, the terms and
conditions applicable for the submission and evaluation of proposals
and those for the granting and conclusion of contracts under the
Communities' programmes shall be the same as those applicable for
contracts concluded under the same programmes with legal entities
established in the Communities.
3. An appropriate number of Swiss experts shall be taken into
consideration in the selection of evaluators or referees under the
Communities' research and technological development programmes.
4. Without prejudice to the provisions of Article 1(3), Article 2(3)
and Article 4(2) and to existing regulations and rules of procedure,
legal entities established in the Communities may participate under
equivalent terms and conditions to Swiss partners in programmes
and/or projects of the Swiss research programmes mentioned in
Article 2(3). The Swiss authorities may make participation in a
project by one or more legal entities established in the Communities
subject to joint participation by at least one Swiss entity.
Article 8
Mobility
Each Party shall undertake, in accordance with existing regulations
and agreements in force, to guarantee the entry and stay - as far as
indispensable for successful accomplishment of the activity
concerned - of a limited number of their researchers participating,
in Switzerland and in the Communities, in the activities covered by
this Agreement.
Article 9
Revision and future collaboration
1. Should the Communities revise or extend their research
programmes, this Agreement may be revised or extended under mutually
agreed conditions. The Parties shall exchange information and views
concerning any such revision or extension, as well as on any matters
which affect directly or indirectly Switzerland's cooperation in the
fields covered by the Sixth EC and Euratom Framework Programmes.
Switzerland shall be notified of the exact content of the revised or
extended programmes within two weeks of their adoption by the
Communities. In case of such revision or extension of the research
programmes, Switzerland may terminate this Agreement by giving six
months' notice. The Parties shall give notice of any intention to
terminate or to extend this Agreement within three months after the
adoption of the Communities' decision.
2. Should the Communities adopt new multiannual Framework Programmes
for research and technological development, this Agreement may be
renewed or renegotiated under conditions agreed mutually between the
Parties. The Parties shall exchange information and views on the
preparation of such programmes or other current and future research
activities through the Switzerland/Communities Research Committee.
Article 10
Relation to other international agreements
The provisions of this Agreement shall apply without prejudice to
the advantages envisaged by other international agreements binding
one of the Parties and reserved only for legal entities established
on the territory of that Party.
Article 11
Territorial application
This Agreement shall apply, on the one hand, to the territories in
which the Treaties establishing the Communities are applied and
under the conditions laid down in those Treaties and, on the other,
to the territory of Switzerland.
Article 12
Annexes
Annexes A, B and C shall form an integral part of this Agreement.
Article 13
Amendment and termination
2. This Agreement may be amended only in writing by common consent
between the Parties. The procedure for entry into force of the
amendments shall be the same as the procedure applicable to this
Agreement.
4. Projects and activities in progress at the time of termination
and/or expiry of this Agreement shall continue until their
completion under the conditions laid down in this Agreement. The
Parties shall settle by common consent any other consequences of
termination.
Article 14
Entry into force and provisional application
1. This Agreement shall be ratified or concluded by the Parties in
accordance with their respective rules. It shall enter into force on
the dates of the final notification of completion of the procedures
necessary to this end and shall come into effect on 1 January 2004.
2. Should the procedures for ratification or conclusion of the
Agreement signed not be completed in 2003, the Parties shall apply
this Agreement provisionally from 1 January 2004 until its entry
into force.
Should one of the Parties inform the other that it will not conclude
the Agreement, it is hereby agreed that:
- the Communities shall reimburse to Switzerland its contribution to
the general budget of the European Union, as provided for in Article
2(2),
- however, the funds committed by the Communities for participation
by legal entities established in Switzerland in indirect action,
including the reimbursements provided for in Article 2(1), shall be
deducted by the Communities from the abovementioned reimbursement,
- projects and activities started during this provisional
application and still in progress at the time of the abovementioned
notification shall continue until their completion under the
conditions laid down in this Agreement.
This Agreement shall be drawn up in duplicate in the Danish, Dutch,
English, Finnish, French, German, Greek, Italian, Portuguese,
Spanish and Swedish languages, each of those texts being equally
authentic.
Hecho en Bruselas, el diecisłis de enero de dos mil
cuatro./Udfördiget i Bruxelles den sekstende januar to tusind og
fire./Geschehen zu BrŽssel am sechzehnten Januar
zweitausendundvier./>ISO_7>øółżõ ėĮłĖ ĀęįžąūūõĖ, ėĮłĖ ōõśńąžł
Éńż˙įńęč˙į ōž˙ šłūłĄōõĖ Įąėėõęń./>ISO_1>Done at Brussels on the
sixteenth day of January in the year two thousand and four./Fait š
Bruxelles, le seize janvier deux mille quatre./Fatto a Bruxelles,
addü sedici gennaio duemilaquattro./Gedaan te Brussel, de zestiende
januari tweeduizendvier./Feito em Bruxelas, em dezasseis de Janeiro
de dois mil e quatro./Tehty Brysselissō kuudentenatoista pōivōnō
tammikuuta vuonna kakstituhattaneljō./Som skedde i Bryssel den
sextonde januari tjugohundrafyra.
Por la Comunidad Europea/For Det Europöiske Föllesskab/FŽr die
Europōische Gemeinschaft/>ISO_7>Ćłń Į÷ż ÅįęųĘńŪśČ
Ź˙łżŽĮ÷Įń/>ISO_1>For the European Community/Pour la Communautł
europłenne/Per la Comunitš europea/Voor de Europese Gemeenschap/Pela
Comunidade Europeia/Euroopan yhteisŠn puolesta/FŠr Europeiska
gemenskapen
>PIC FILE= "L_2004032EN.002701.TIF">
Por la Comunidad Europea de la Energża Atėmica/For Det Europöiske
Atomenergiföllesskab/FŽr die Europōische Atomgemeinschaft/>ISO_7>Ćłń
Į÷ż ÅįęųĘńŪśČ Ź˙łżŽĮ÷Įń ĮĮ˙üłśČĖ ÅżąęóõłńĖ/>ISO_1>For the European
Atomic Energy Community/Pour la Communautł europłenne de l'łnergie
atomique/Per la Comunitš europea dell'energia atomica/Voor de
Europese Gemeenschap voor Atoomenergie/Pela Comunidade Europeia da
Energia Atėmica/Euroopan atomienergiayhteisŠn puolesta/FŠr
Europeiska atomenergigemenskapen
>PIC FILE= "L_2004032EN.002702.TIF">
FŽr die Schweizerische Eidgenossenschaft/Pour la Confłdłration
suisse/Per la Confederazione svizzera
>PIC FILE= "L_2004032EN.002801.TIF">
(1) OJ L 114, 30.4.2002, p. 468.
(2) OJ L 232, 29.8.2002, p. 1.
(3) OJ L 355, 30.12.2002, p. 23.
(4) OJ L 294, 29.10.2002, p. 1.
(5) OJ L 294, 29.10.2002, p. 44.
(6) OJ L 294, 29.10.2002, p. 60.
(7) OJ L 232, 29.8.2002, p. 34.
(8) OJ L 355, 30.12.2002, p. 35.
(9) OJ L 294, 29.10.2002, p. 74.
(10) OJ L 294, 29.10.2002, p. 86.
ANNEX A
PRINCIPLES ON THE ALLOCATION OF INTELLECTUAL PROPERTY RIGHTS
I. SCOPE
For the purposes of this Agreement, "intellectual property" shall
have the meaning defined in Article 2 of the Convention establishing
the World Intellectual Property Organisation, signed at Stockholm on
14 July 1967.
For the purposes of this Agreement, "knowledge" means the results,
including information, whether or not they can be protected, as well
as copyrights or rights pertaining to such information, following
applications for, or the issue of, patents, designs, plant
varieties, supplementary protection certificates or similar forms of
protection.
II. INTELLECTUAL PROPERTY RIGHTS OF THE LEGAL ENTITIES OF THE
PARTIES
1. Each Party shall ensure that the intellectual property rights of
the legal entities of the other Party participating in the
activities undertaken under this Agreement and the rights and
obligations resulting from such participation are treated in a
manner compatible with the relevant international conventions
applicable to the Parties, notably the TRIPS Agreement (Agreement on
Trade-Related Aspects of Intellectual Property Rights administered
by the World Trade Organisation), the Berne Convention (Paris Act
2. Legal entities established in Switzerland participating in
indirect action under the Sixth EC and Euratom Framework Programmes
shall have intellectual property rights and obligations under the
conditions set out in Regulation (EC) No 2321/2002 of the European
Parliament and of the Council, in Council Regulation (Euratom) No
2322/2002 and in the contract concluded with the European Community,
in accordance with point 1.
Where Switzerland participates in indirect action under the Sixth EC
Framework Programme, implemented in accordance with Article 169 of
the Treaty establishing the European Community, Switzerland shall
have the same intellectual property rights and obligations as the
Member States participating therein, as set out in the relevant
decision of the European Parliament and of the Council and in the
contract concluded with the European Community, in accordance with
point 1.
3. Legal entities established in a European Union Member State
participating in Swiss research programmes and/or projects shall
have the same intellectual property rights and obligations as legal
entities established in Switzerland participating in these research
programmes or projects, in accordance with point 1.
III. INTELLECTUAL PROPERTY RIGHTS OF THE PARTIES
1. Unless otherwise agreed between the Parties, the following rules
shall apply to the knowledge generated by the Parties in the course
of the activities undertaken in accordance with Article 2(4) of this
Agreement:
(a) the Party generating the knowledge shall have ownership thereof.
Where their respective shares in the work cannot be determined, the
Parties shall co-own the knowledge;
(b) the Party holding ownership shall grant the other Party rights
of access to the knowledge with a view to the activities referred to
in Article 2(4) of this Agreement. No charge shall be made for
granting rights of access to the knowledge.
2. Unless otherwise agreed between the Parties, the following rules
shall apply to scientific literature from the Parties:
(a) where a Party publishes data, information and technical or
scientific results arising from the activities undertaken under this
Agreement in journals, articles, reports and books, including
audiovisual works and software, a worldwide, non-exclusive,
irrevocable royalty-free licence to translate, adapt, transmit and
publicly distribute the works in question shall be granted to the
other Party;
(b) all copies of copyrighted data and information to be publicly
distributed and prepared under this section shall indicate the names
of the author or authors, unless an author expressly declines to be
named. Copies shall also bear a clearly visible acknowledgement of
the cooperative support of the Parties.
3. Unless otherwise agreed between the Parties, the following rules
shall apply to undisclosed information of the Parties:
(a) at the time of submission to the other Party of information
relating to the activities undertaken under this Agreement, each
Party shall identify the information which it wishes to remain
undisclosed;
(b) for the specific purposes of application of this Agreement, the
receiving Party may, on its own responsibility, communicate
undisclosed information to bodies or persons under its authority;
(c) with the prior written consent of the Party providing
undisclosed information, the receiving Party may disseminate such
information more widely than otherwise permitted by subparagraph
(b). The Parties shall cooperate in developing procedures for
requesting and obtaining prior written consent for wider
dissemination, and each Party shall grant such approval to the
extent permitted by its domestic policies, regulations and laws;
(d) non-documentary undisclosed or other confidential information
provided in seminars or other meetings of the representatives of the
Parties arranged under this Agreement, or information arising from
the attachment of staff, use of facilities or indirect action must
remain confidential, where the recipient of such undisclosed or
other confidential or privileged information was made aware of the
confidential character of the information before it was
communicated, in accordance with subparagraph (a);
(e) each Party shall ensure that undisclosed information which it
acquires in accordance with subparagraphs (a) and 3(d) shall be
controlled as provided for in this Agreement. If one of the Parties
becomes aware that it will be, or may be expected to become, unable
to meet the non-dissemination provisions of subparagraphs (a) and
(d), it shall immediately inform the other Party. The Parties shall
thereafter consult to define an appropriate course of action.
ANNEX B
FINANCIAL RULES GOVERNING THE CONTRIBUTION OF SWITZERLAND REFERRED
TO IN ARTICLE 5 OF THIS AGREEMENT
I. DETERMINATION OF FINANCIAL PARTICIPATION
1. The Commission shall communicate to Switzerland together with
relevant background material as soon as possible and at the latest
on 1 September of each year:
(a) the amounts in commitment appropriations in the statement of
expenditure of the preliminary draft budget of the European Union
corresponding to the two Framework Programmes;
(b) the estimated amount of the contributions derived from the
preliminary draft budget, corresponding to the participation of
Switzerland in the two Framework Programmes.
Nonetheless, in order to facilitate internal budgetary procedures,
the Commission services shall provide corresponding indicative
figures at the latest on 30 May of each year.
II. PAYMENT PROCEDURES
1. The Commission shall issue, at the latest on 15 June and 15
November of each financial year, a call for funds to Switzerland
corresponding to its contribution under this Agreement. These calls
for funds shall provide respectively for the payment of:
- six twelfths of Switzerland's contribution not later than 20 July,
and
- six twelfths of its contribution not later than 15 December.
However, in the last year of the two Framework Programmes, the full
amount of Switzerland's contribution shall be paid not later than 20
July.
3. Switzerland shall pay its contribution under this Agreement
according to the schedule in paragraph 1. Any delay in payment shall
give rise to the payment of interest at a rate equal to the
one-month inter-bank offered rate (EURIBOR) as on page 248 of
Telerate. This rate shall be increased by 1,5 % for each month of
delay. The increased rate shall be applied to the entire period of
delay. However, the interest shall be due only if the contribution
is paid more than 30 days after the scheduled payment dates
mentioned in paragraph 1.
2. Travel costs incurred by Swiss representatives and experts for
the purposes of taking part in the work of the research committees
and those involved in the implementation of the two Framework
Programmes shall be reimbursed by the Commission on the same basis
as, and in accordance with, the procedures currently in force for
the representatives and experts of the Member States of the
Communities.
III. CONDITIONS FOR IMPLEMENTATION
1. The financial contribution of Switzerland to the two Framework
Programmes in accordance with Article 5 of this Agreement shall
normally remain unchanged for the financial year in question.
2. The Commission, at the time of the closure of the accounts
relating to each financial year (n), within the framework of the
establishment of the revenue and expenditure account, shall proceed
to the regularisation of the accounts with respect to the
participation of Switzerland, taking into consideration
modifications which have taken place, either by transfer,
cancellations, carry-overs, or by supplementary and amending budgets
during the financial year. This regularisation shall occur at the
time of the first payment for the year n+1. However, the final such
regularisation shall occur not later than July of the fourth year
following the end of the two Framework Programmes.
Payment by Switzerland shall be credited to the European
Communities' programmes as budget receipts allocated to the
appropriate budget heading in the statement of revenue of the
general budget of the European Union.
IV. INFORMATION
1. At the latest on 31 May of each financial year (n + 1), the
statement of appropriations for the two Framework Programmes,
related to the previous financial year (n), shall be prepared and
transmitted to Switzerland for information, according to the format
of the Commission's revenue and expenditure account.
2. The Commission shall communicate to Switzerland all other general
financial data relating to the implementation of the two Framework
Programmes which is made available to the associated States.
ANNEX C
FINANCIAL CONTROL OF SWISS PARTICIPANTS IN THE COMMUNITY PROGRAMMES
COVERED BY THIS AGREEMENT
I. DIRECT COMMUNICATION
The Commission shall communicate directly with the participants in
the Sixth EC and Euratom Framework Programmes established in
Switzerland and with their subcontractors. They may submit directly
to the Commission all relevant information and documentation which
they are required to submit on the basis of the instruments referred
to in this Agreement and of the contracts concluded to implement
them.
II. AUDITS
1. In accordance with Council Regulation (EC, Euratom) No
1605/2002(1) of 25 June 2002 and Commission Regulation (EC, Euratom)
No 2342/2002(2) and with the other rules referred to in this
Agreement, the contracts concluded with participants in the
programme established in Switzerland may provide for scientific,
financial, technological or other audits to be conducted at any time
on the premises of the participants and of their subcontractors by
Commission agents or by other persons mandated by the Commission.
2. Commission agents and other persons mandated by the Commission
shall have appropriate access to sites, works and documents and to
all the information required in order to carry out such audits,
including in electronic form. This right of access shall be stated
explicitly in the contracts concluded to implement the instruments
referred to in this Agreement.
4. The audits may be conducted after the Sixth EC and Euratom
Framework Programmes or this Agreement expire, on the terms laid
down in the contracts in question.
III. ON-THE-SPOT CHECKS
1. Within the framework of this Agreement, the Commission (OLAF)
shall be authorised to carry out on-the-spot checks and inspections
on Swiss territory, in accordance with the terms and conditions laid
down in Council Regulation (Euratom, EC) No 2185/96(3).
2. On-the-spot checks and inspections shall be prepared and
conducted by the Commission in close collaboration with the Swiss
Federal Audit Office or with the other competent Swiss authorities
designated by the Swiss Federal Audit Office, which shall be
notified in good time of the object, purpose and legal basis of the
checks and inspections, so that they can provide all the requisite
help. To that end, the officials of the competent Swiss authorities
may participate in the on-the-spot checks and inspections.
3. If the Swiss authorities concerned so wish, the on-the-spot
checks and inspections may be carried out jointly by the Commission
and them.
4. Where the participants in the Sixth EC and Euratom Framework
Programmes resist an on-the-spot check or inspection, the Swiss
authorities, acting in accordance with national rules, shall give
Commission inspectors such assistance as they need to allow them to
discharge their duty in carrying out an on-the-spot check or
inspection.
5. The Commission shall report as soon as possible to the Swiss
Federal Audit Office any fact or suspicion relating to an
irregularity which has come to its notice in the course of the
on-the-spot check or inspection. In any event the Commission shall
be required to inform the abovementioned authority of the result of
such checks and inspections.
IV. INFORMATION AND CONSULTATION
1. For the purposes of proper implementation of this Annex, the
competent Swiss and Community authorities shall regularly exchange
information and, at the request of one of the Parties, shall conduct
consultations.
2. The competent Swiss authorities shall inform the Commission
without delay of any fact or suspicion which has come to their
notice relating to an irregularity in connection with the conclusion
and implementation of the contracts concluded in application of the
instruments referred to in this Agreement.
V. CONFIDENTIALITY
Information communicated or acquired in any form under this Annex
shall be covered by professional secrecy and protected in the same
way as similar information is protected by Swiss law and by the
corresponding provisions applicable to the Community institutions.
Such information may not be communicated to persons other than those
within the Community institutions or in the Member States or
Switzerland whose functions require them to know it nor may it be
used for purposes other than to ensure effective protection of the
Parties' financial interests.
VI. ADMINISTRATIVE MEASURES AND PENALTIES
Without prejudice to application of Swiss criminal law,
administrative measures and penalties may be imposed by the
Commission in accordance with Regulations (EC, Euratom) No 1605/2002
and (EC, Euratom) No 2342/2002 and with Council Regulation (EC,
Euratom) No 2988/95 of 18 December 1995 on the protection of the
European Communities' financial interests(4).
Decisions taken by the Commission under the Sixth EC Framework
Programme within the scope of this Agreement which impose a
pecuniary obligation on persons other than States shall be
enforceable in Switzerland. The enforcement order shall be issued,
without any further control than verification of the authenticity of
the act, by the authorities designated by the Swiss government,
which shall inform the Commission thereof. Enforcement shall take
place in accordance with the Swiss rules of procedure. The legality
of the enforcement decision shall be subject to control by the Court
of Justice of the European Communities.
Judgments given by the Court of Justice of the European Communities
pursuant to an arbitration clause in a contract under the Sixth EC
and Euratom Framework Programmes shall be enforceable on the same
terms.
(1) OJ L 248, 16.9.2002, p. 1.
(2) OJ L 357, 31.12.2002, p. 1.
(3) OJ L 292, 15.11.1996, p. 2.
(4) OJ L 312, 23.12.1995, p. 1.
