Key Benefits:
(State on 18 September 2009)
Translation 3
| Janez Potoennik |
Brussels, 28 November 2007 |
| European Atomic Energy Community |
|
| Brussels |
|
| Mr. Hanspeter Mock |
|
| Chargé d' affaires of the Swiss Mission to the European Union |
|
| B-1050 Brussels |
Sir,
I have the honour to acknowledge receipt of your letter of 5 November 2007, which reads as follows:
" On 18 July 2006, the Swiss Confederation <Switzerland > notified the Commission of its interest in the European Joint Undertaking for ITER and the Development of Fusion Energy.
I am pleased to inform you that the Swiss authorities have taken note of the contents of Council Decision 2007 /198/Euratom of 27 March 2007 establishing a Joint Undertaking for ITER and the Development of Fusion Energy <the Joint Undertaking >. In particular, Switzerland is informed of the possibility for third countries to become members of the Joint Undertaking on condition that they have concluded, in the field of controlled nuclear fusion, a cooperation agreement with Euratom which associates their Relevant research programmes and Euratom programmes.
On behalf of the Swiss Confederation, I have the honour to declare, in accordance with Art. 2, let. (c), of the said Council decision, that Switzerland expresses the wish to become a member of the Joint Undertaking. This accession will be the basis for continued cooperation between Switzerland and Euratom. It will be an extension of the undertaking present in the research on fusion in accordance with Art. 3, para. 3, of the cooperation agreement of 14 September 1978 between the Swiss Confederation and the European Atomic Energy Community in the field of controlled thermonuclear fusion and plasma physics 4 Furthermore, this accession will constitute the implementation of intensive cooperation in the field of scientific and technical research, as provided for in the agreement on the participation of Switzerland in the Seventh Framework Programmes of the European Community and Euratom.
Given the intention of Switzerland to become a member of the Joint Undertaking, I would be obliged if you wished to confirm that the following interpretation is shared by the Commission representing Euratom:
Notwithstanding Art. 12, para. 2, let. (a), and 82, para. 3, let. (a) Regulation (EEC, Euratom, ECSC) n O 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of officials of the European Communities and the rules applicable to other servants of these Communities, and in accordance with Art. 10 of the Statutes of the Joint Undertaking for ITER and the Development of Fusion Energy annexed to the Decision of the Council establishing the Joint Undertaking and the provisions governing the application of the Statute by the Joint Undertaking, the Swiss nationals exercising full rights of their citizenship may be appointed by the Director of the Joint Undertaking as members of the staff of the Joint Undertaking.
In addition, I would like to confirm that Switzerland, as a member of the Joint Undertaking, will comply with the aforementioned Council Decision establishing the Joint Undertaking and conferring advantages on it. In particular:
Annexes I, II and III form an integral part of this letter.
According to Art. 6, para. 5, and art. 21 of the statutes annexed to the above-mentioned Council Decision, the Swiss authorities will be consulted if the provisions of the Statute are to be amended. Switzerland points out that any change affecting the obligations of Switzerland requires its formal approval before taking effect for it.
If the above has the approval of the Commission, I have the honour to propose that the present letter and the Commission's reply constitute an agreement between Switzerland and Euratom which is provisionally applied from the date of the reply of the Commission to this letter. The application of this agreement will remain provisional until the date on which the Swiss Parliament has decided to join the Swiss Joint Undertaking. Switzerland will notify Euratom of the completion of internal approval procedures. The date of receipt of this notification by Euratom shall constitute the entry into force of this exchange of letters. This agreement will be concluded for the duration of the Seventh Euratom Framework Programme, namely from 2007 to 2011. It shall be tacitly renewed for the duration of the following Euratom framework programmes unless one of the parties denounces the agreement at least one year before the end of the Euratom framework programme in force. '
I have the honour to inform you that Euratom agrees with the above interpretation of the Statute and with the contents of this letter and confirm that Switzerland is becoming a member of the Joint Undertaking as of the date of this letter.
I would ask you to accept, Sir, the assurance of my very high regard.
1. Extension of application to Switzerland
Any reference made to the Member States in the Protocol on the Privileges and Immunities of the European Communities (hereinafter referred to as "the Protocol") shall be understood as including Switzerland, unless the following provisions agree Otherwise.
2. Exemption from indirect taxes (including VAT) for the business co - M Mune for ITER and the development of fusion energy (" company co M Mune ")
Goods and services exported outside Switzerland are not subject to the Swiss Value Added Tax (VAT). As regards the goods and services provided to the joint undertaking in Switzerland for its official use, the exemption from VAT is effected, in accordance with Art. 3, para. 2, of the Protocol, by means of reimbursement. The exemption from VAT shall be granted if the actual purchase price of the goods and services mentioned in the invoice or equivalent document amounts to a total of at least 100 Swiss francs (tax included).
The VAT refund is granted on presentation to the Federal Contributions Administration, Main Division of VAT, of the Swiss forms provided for that purpose. Applications shall be processed, in principle, within three months of the filing of the refund application together with the necessary supporting documents.
3. Procedures for the application of the rules relating to the staff of the undertaking co M Mune
With regard to art. 13, second paragraph, of the Protocol, Switzerland exempts, in accordance with the principles of its domestic law, civil servants and other servants of the Joint Undertaking within the meaning of Art. 2 of the Regulation (Euratom, ECSC, EEC) O 549/69 of 25 March 1969 (OJ L 74, 27.3.1969, p. (1) Federal, cantonal and communal taxes on salaries, wages and emoluments paid by the Community and submitted to the Community for the benefit of an internal tax.
Switzerland shall not be regarded as a Member State within the meaning of c. 1 above for the application of s. 14 of the Protocol.
Officials and other servants of the Joint Undertaking, as well as members of their families who are members of the social insurance system applicable to officials and other servants of the Community, are not necessarily subject to the Swiss social insurance system.
The Court of Justice of the European Communities shall have exclusive competence for all matters concerning the relations between the Joint Undertaking or the Commission and its staff with regard to the application of the Regulation (ECB/EC/Euratom) n O 259/68 of the Council of 29 February 1968 (OJ L 56, 4.3.1968, p. 1) and the other provisions of Community law laying down the working conditions.
The Joint Undertaking and the Commission shall communicate directly with all persons or entities established in Switzerland who participate in the activities of the Joint Undertaking, either as a contractor, participating in a programme of the Joint Undertaking, Person who has received a payment made from the budget of the joint undertaking or the Community, or as a subcontractor. Such persons may transmit directly to the Commission and to the Joint Undertaking any relevant information and documentation which they are required to communicate on the basis of the instruments referred to in this Agreement and of the contracts or Agreements concluded and decisions taken within the framework of those agreements.
1. In accordance with Regulation (EC, Euratom) n O Council of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 248, 16.9.2002, p.1), as amended by Regulation No O 1995/2006 of the Council of 13 December 2006 (OJ L 390, 30.12.2006, p. 1) and the Financial Regulation adopted by the Governing Board of the Joint Undertaking on 22 October 2007, with the provisions of Regulation (EC, Euratom) n O 2343/2002 of the Commission of 23 December 2002 laying down detailed rules for the implementation of the Regulation (EC, Euratom) n O 1605/2002 of the Council (OJ L 357, 31.12.2002, p. 1), as last amended by Regulation (EC, Euratom) n O 478/2007 of the Commission of 23 April 2007 (OJ L 111, 23.4.2007, p. 13), as well as with the other regulations referred to in this Agreement, contracts or agreements concluded and decisions made with beneficiaries established in Switzerland may provide for scientific, financial and financial audits; May be carried out at any time with them and their subcontractors by agents of the Joint Undertaking and of the Commission or by other persons authorised by them.
2. The agents of the Joint Undertaking and of the Commission and the other persons authorised by them shall have appropriate access to the sites, works and documents, as well as to all necessary information, including in electronic format, To carry out these audits. This right of access is expressly included in contracts or agreements concluded pursuant to the instruments referred to in this Agreement.
The Court of Auditors of the European Communities has the same rights as the Commission.
4. Audits may take place up to five years after the expiration of this Agreement or in accordance with the terms laid down in the contracts, conventions and decisions in question.
5. The Swiss Federal Audit Office shall be informed in advance of the audits carried out on Swiss territory. This information is not a legal requirement for carrying out these audits.
1. Under this Agreement, the Commission (OLAF) is authorised to carry out on-the-spot checks and inspections on the territory of Switzerland in accordance with the terms and conditions of the Regulation (EC, Euratom) n O 2185/96 of the Council of 11 November 1996.
2. On-the-spot checks and inspections shall be prepared and conducted by the Commission in close cooperation with the Swiss Federal Audit Office or with the other competent Swiss authorities designated by the Federal Audit Office Swiss, who are informed in due course of the object, purpose and legal basis of the checks and verifications, so that they can provide all necessary assistance. To this end, officials of the competent Swiss authorities may participate in on-the-spot checks and inspections.
3. If the relevant Swiss authorities so wish, on-the-spot checks and verifications shall be carried out jointly by the Commission and the Commission.
4. When the participants in the programme object to on-the-spot checks or inspections, the Swiss authorities shall, in accordance with the national provisions, provide the controllers of the Commission with the assistance necessary to enable them to Completion of their on-site monitoring and verification duties.
5. The Commission shall, as soon as possible, communicate to the Swiss Federal Audit Office, any fact or suspicion relating to an irregularity which it has been aware of in connection with the execution of on-the-spot checks or inspections. In any event, the Commission is required to inform the abovementioned authority of the result of such checks and verifications.
For the purposes of the proper implementation of this Annex, the competent Swiss and Community authorities shall conduct regular exchanges of information and shall, at the request of one of them, consult.
2. The competent Swiss authorities shall, without delay, inform the Joint Undertaking and the Commission of any element to their knowledge, suggesting that there are irregularities in the conclusion and execution of contracts or agreements Concluded pursuant to the instruments referred to in this Agreement.
Information communicated or obtained under this Annex, in any form, shall be covered by professional secrecy and shall benefit from the protection afforded to similar information by Swiss law and by Relevant provisions applicable to Community institutions. Such information may not be communicated to persons other than those who, within the Community institutions, Member States or Switzerland, are, by their functions, called upon to know, or be used for any other purpose than Those of ensuring effective protection of the financial interests of the contracting parties.
Without prejudice to the application of Swiss criminal law, administrative measures and penalties may be imposed by the Joint Undertaking or by the Commission in accordance with the regulations (EC, Euratom) n O Council of 25 June 2002 and (EC, Euratom) n O 2342/2002 of the Commission of 23 December 2002, and with Regulation (EC, Euratom) n O 2988/95 of the Council of 18 December 1995 on the protection of the European Communities' financial interests.
Decisions of the Joint Undertaking or of the Commission, taken within the scope of this Agreement, which include, for persons other than States, a pecuniary obligation, shall be enforceable in Switzerland.
The executory formula shall be affixed, without any control other than that of the verification of the authenticity of the title, by the authority designated by the Swiss Government which shall notify the Joint Undertaking or the Commission thereof. Enforcement shall take place in accordance with the rules of the Swiss procedure. The legality of the binding decision shall be subject to the supervision of the Court of Justice of the European Communities.
The judgments of the Court of Justice of the European Communities under an arbitration clause shall be enforceable under the same conditions.
1 Art. 1 al. 1 let. A of March 20, 2009 ( RO 2009 5283 )
2 RO 2009 5287
3 Translation of original English text.
4 RS 0.424.11
5 The Appendix to this Protocol: "Implementing rules in Switzerland of the Protocol on the privileges and immunities of the European Communities" is reproduced in Annex I to this text. The "Protocol on the privileges and immunities of the European Communities" (OJ C 321 E/318, 29.12.2006) is available at the following address: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:321E:0001:0331 :PDF
6 Annex III to the Euratom Treaty: ' Advantages which may be granted to joint undertakings under Art. 48 of the Treaty " may be consulted at the following address: http://eur-lex.europa.eu/fr/treaties/dat/11957K/tif/11957K.html
7 The text "Financial control relating to Swiss participants in the activities of the Joint Undertaking for ITER and the Development of Fusion Energy" is reproduced in Annex III to this text.
