Further regulation of IP related matters is not obligatory but strictly recommended for the consortium partners. The following IP related issues may be considered in the Consortium Agreement:
(i) Confidentiality – mechanisms for marking information as confidential, use of confidential information, penalties for a breach of confidentiality provisions, etc;
(ii) Background selection- a list of background to be brought to the project (and/or exclusion of assets which will not be brought to the project);
(iii) Ownership/Joint ownership of results – management of the ownership of the results developed in the project, including possible joint ownership and transfer of ownership;
(iv) Protection of results – mechanisms; costs sharing; etc.
(v) Exploitation and/or dissemination of results
(vi) Access rights – scope, conditions, time limits, etc.
In accordance with the Article 24 (2) of the Horizon 2020 Rules for Participation (RfP) and the Article 41 (3) of the Grant Agreement for Horizon 2020 (GA), the participants have to conclude a consortium agreement (CA) if the work programme does not rule otherwise.
However, neither the RfP nor the GA stipulates that a CA has to be concluded before the GA is signed. The Annotated Model GA only strongly recommends ("should in principle") that the CA be negotiated and concluded before the action starts because not having a CA at this moment could delay and jeopardise the action.
The situation would change if the work programme exceptionally stipulates that a CA be concluded before the signature of the GA. Such additional participation conditions might be included in accordance with the Article 9(5) of the RfP. In such case, if the European Commission becomes aware of the absence of the conclusion of the CA it would not sign the grant agreement.
According to Article 41.3 of the Model Grant Agreement, a consortium agreement has to be signed between beneficiaries, unless the work programme specifies that there is no need for it. In other words, if not indicated otherwise, the beneficiaries must have internal arrangements regarding their operation and co-ordination to ensure that the action is implemented properly (consortium agreement).
The Grant Agreement is a contract set between the consortium (all its partners) and the European Commission, while the Consortium Agreement is an internal arrangement set between the partners of the consortium - it regulates all issues that are not covered by the Grant Agreement but are important for the internal functioning of the consortium (such as the organisation of work, structure, intellectual property management, liability, conflict resolution, future exploitation and dissemination of results, etc.).
In principle, the agreement may include any arrangements the partners wish to make, as long as they are not contrary to the Grant Agreement and the Horizon 2020 Rules for Participation.
It is to be noted that there is no binding model of a Consortium Agreement. The European Commission has only made available a check list with non-binding guidelines on the issues that participants may consider while drafting their Consortium Agreements.
However, there are several models of Consortium Agreements that have been created by different entities and may be used by participants in H2020 projects. The DESCA model is suitable for all multi-beneficiary projects, the EUCAR model is mainly for automotive R&D projects,the MCARD model for ICT related projects and the LERU and BAK models for MSCA ITN projects.
The above models may help you personalise/complete your consortium agreement. Have, however, in mind that they show only examples of possible approaches and do not show all alternatives for a given situation – you may adjust them for the specific needs of your particular consortium to the extent that such modifications are not in conflict with the Grant Agreement or the Horizon 2020 Rules for Participation.
A Consortium Agreement refers to the internal organisation of the consortium. Depending on the area or sector of the each project and of the grade of technical complexity that are involved, the Consortium Agreement might generally contain the following:
· provisions on the governance structure of the consortium;
· technical provisions (e.g. the tasks of each party and the project schedule);
· financial provisions (e.g. the distribution of the Community financial contribution, the financial plan, etc);
· provisions regarding IPR and related issues such as dissemination, use and accessibility of the results, confidentiality, as well as arrangements on the settlement of disputes and liability.