Subject to the conditions established in the Grant Agreement, appointment letter or contract, the Commission and the participants shall keep confidential any data, knowledge and documents communicated to them as confidential.
When applicants send proposals to the European Commission they set out details of the work, which is intended to be carried out under the project. Many ideas are, therefore, put forward by participants when submitting their proposals to the European Commission. This information is not only disclosed to the European Commission, but also to the independent experts, who assist in the evaluation of proposals.
Even though ideas are generally not protected under intellectual property rights, this does not mean that you do not have any type of tool you may use to protect them. In fact, you may rely on confidentiality to make sure that your ideas are not disclosed to the public, that is, that the people to whom you disclose your ideas have the obligation to keep them secret (i.e. not reveal them to anyone else).
Thus, all proposals and related data are treated under the principle of confidentiality by the European Commission. Independent experts must, therefore, sign an appointment letter binding them to maintain confidentiality of any document and data received.
The Rules for Participation and the standard model Grant Agreement establish that the European Commission and participants undertake to keep confidentiality of any data, documents or other material concerning the execution of the project that has been communicated to them as confidential.
The level of confidentiality, however, may differ depending on the people to whom the data, documents or other material may be disseminated. The European Commission has established the following codes to distinguish between these different levels of confidentiality:
PU = Public
PP = Restricted to other programme participants (including the Commission Services)
RE = Restricted to a group specified by the consortium (including the Commission Services)
CO = Confidential, only for members of the consortium (including the Commission Services)
One of the requirements of inventions’ patentability is novelty. To be regarded as new, generally, an invention cannot be disclosed or made available to others before the date on which an application was filed. Moreover, there are some types of information that are not patentable, such as methods and many forms of know-how, which may only be protected if they are kept confidential.
However, such inventions and information can be disclosed to others if under confidence. A NDA is the tool that allows confidentiality obligations to be in place. Indeed, a NDA is a written agreement that establishes the conditions under which information or ideas are disclosed in confidence.
To see a checklist of the most common issues that should be considered when drafting such an agreement, please click here.
The preparation and submission of a proposal usually requires meetings and exchange of information among the project’s partners. At this point, among other issues, applicants should define the work packages and describe the research idea, which may result in the disclosure of valuable information.
To avoid any eventual misappropriation and use of such information, which could undermine its value and protection as an Intellectual Property Right (i.e. patent), it is advisable to conclude a non-disclosure agreement or NDA before entering in negotiations for the submission of a proposal.
Thus, we suggest applicants, in particular the coordinator, to explain the other partners of the project the advantages of having a NDA in place and propose a draft agreement to be negotiated before further discussions.
As any other agreement, a NDA must be adapted to the circumstances of each project. Hence, there is not a standard NDA. Nevertheless, there are some issues that in most cases should be considered by the parties involved, such as the following:
- Identification of the parties;
- Indicate the intentions of the parties in order to explain the context of the agreement;
- Identify the call and the name/acronym of the project;
- Clarify what should be considered as confidential information (e.g. all information or just information marked as “confidential”);
- Define very precisely the permitted purpose of the disclosure in order to restrict the use of the information;
- Consider the need to disclose the confidential information to employees;
- List the obligations of the party receiving the information;
- List any information considered as excluded;
- Determine the entry into force of the NDA;
- Determine the period of time of the confidentiality obligation (e.g. 3, 5 or 10 years);
- Determine applicable law and jurisdiction
Yes, it is. Before the evaluation process at the European Commission (EC), both evaluators and observers have to sign a contract with the EC that specifically includes a confidentiality clause as well as well as a no conflict of interest declaration.
They are required to commit themselves by an “appointment letter for independent experts” (based on the model given in Annex F of the “Rules for submission of proposals, and the related evaluation, selection and award procedures”), stating that they will conform to the principles outlined therein and will follow the rules and procedures set by the EC. This includes keeping all information gained during the evaluation process confidential and not retaining (or copying) any materials that pertain to proposals or the evaluation.