Consortium Agreement

Possibly, the most important document as the commission have moved most of the responsibility to the consortium itself, and have thus made it compulsory to have a Consortium Agreement, unless this has been exempted by the call for proposals. However, even then, you should have one to protect your interests.

The Agreement is between the partners and the Commission will not wish to see it. However this is a mandatory document that must be prepared and signed by the partners prior to official start of the project and by each additional partner prior to him joining the project.
The Consortium Agreement should cover details of working arrangements and money transfers beyond that in the Technical Annex or Project Program. It should set out the internal management guidelines for the consortium and can provide for arrangements relating, for instance, to the granting of specific access rights in addition to those provided for in the standard IPR provisions.

Consortium Agreements may not conflict with the provisions of the contract or the Regulation. Although, the participation rules state that Consortium Agreements are mandatory, except where otherwise provided in the call for proposals, they do not specify what they must contain.
Accordingly, this requirement does not conflict with any flexibility objective and should not be seen as an administrative burden, but as a signal drawing the attention of the contractors to the importance of Consortium Agreements.

Consortia Agreements could include any or all of the following clauses:

Technical provisions

·        Technical contribution of each party (unless sufficiently detailed in the Annex I to the EC contract)

·        Technical resources made available

·        Production schedule, for information

·        Maximum efforts

·        Modification procedure

·        Provisions for dealing with non-performing contractor(s)

Commercial provisions

·        Confidentiality
Ownership of results / joint ownership of results / difficult cases (i.e. pre-existing know-how so closely linked with result difficult to distinguish pre-existing know-how and result)

·        Legal protection of results (patent rights)

·        Commercial exploitation of results and any necessary access right

·        Commercial obligation

·        Relevant Patents, know-how, and information

·        Sublicense

·        Pre-existing know-how excluded from contract

Organisational provisions

·        Committees - Steering, management, technical, IPR, financial

·        Coordination of committees

·        Amendment / revision of the agreement

Financial provisions

·        Financing plan

·        Modification procedure

·        Mutual payments

·        Audit of expense

·        Audit certificates

·        How to deal with financial collective responsibility

·        Provisions for dealing with non-performing contractor(s)

·        Third party resources - to identify parties and resources

Legal provisions

·        Legal form of cooperation

·        Duration of the agreement vs. duration of the EC contract (i. e. 6 months one year longer, etc)

·        Penalties for non-compliance with obligations under agreement

·        Applicable law and settlement of disputes

·        Secondment of personnel

·        What to do if not all contractors sign EC contract

In addition it is suggested that the following also be considered:

·        Distribution of the 100% management provision between partners

·        Distribution of the effort and funding between the partners

·        Process and rights of new participants added into the running project

·        Participation in competitive projects

·        Possible identification of a core project team, its membership and authority