January 1 2021 saw the launch of the world's largest single funding programme for research and innovation, Horizon Europe. The initiative has a budget of around €95.5 billion (approximately $116.3 billion) for the programme period from 2021 to 2027.
New features in Horizon Europe 2020, as compared to its predecessor programme, include: the institutionalisation of the European Innovation Council (EIC), as well as the introduction of strategic planning processes and topic-driven missions. The purpose of the revised programme is to foster and protect a knowledge-driven, innovation-friendly society, and to develop a globally competitive and environmentally sustainable economy.
Eligible for funding are legal entities established in an EU member state or in an associated country. Under the terms of the partnership agreement concluded between the EU and the UK on December 24 2020, the UK is also deemed to be an associated country.
Potential project partners have the possibility to enter into a pre-contractual agreement while their application is still pending. The reason here is to avoid knowledge drain during the application phase, especially in the event that funding is later refused.
Where there is a grant agreement in place between the European Commission and the project partners, the latter must also enter into a ‘consortium agreement’ for the duration of the project. This is limited in time to the duration of the research project and must implement or comply with the requirements of the grant agreement, as well as the provisions of respective national law.
It is clearly understood that the use, processing or other exploitation of results play an integral role in the joint research project. Article 16 of the Corporate Model Grant Agreement of May 14 2020 provides that existing know-how must be disclosed in order for new knowledge and insights to be derived from it. The results should also be capable of being exploited commercially by the project partners. Accordingly, Article 16.4 in conjunction with Annex 5 provides for the establishment of rights of access to ‘background’ and ‘results’, if certain conditions are met. Moreover, the European Commission must have access to research results without payment where such access is necessary for the implementation or monitoring of EU programmes or policies.
Where there is any ambiguity surrounding the ownership of results generated by the project, barring any prior written agreements to the contrary, all project participants will acquire co-ownership of the innovations in question. In practice, however, it may be advisable to make specific alternative contractual arrangements in order to allow a commercial exploitation that takes account of a party’s particular interests.
To achieve the European Commission's overriding objective of exploiting the results of the funded projects to boost innovation and competitiveness in Europe, the project partners are expected to create suitable framework conditions for third parties. With this in mind, the project partners are meant to use their ‘best efforts’ to exploit the results. Wide dissemination of the results gained from the project also ranks high and, barring any restrictions to the contrary, each project partner must disseminate its results in a publicly available format.
Particularly in light of the COVID-19 pandemic, the creation of new perspectives and opportunities for strengthening the European Research Area (ERA) and encouraging innovation acquires new significance. It will be interesting to observe how the innovations that are expected to flow from Horizon Europe will play out in this context.
Marco Stief
Partner, Maiwald
