Contributionagreement-Redactedfinal
Dieses Dokument ist Teil der Anfrage „Copernicus-Beitragsvereinbarung mit Frontex“
Ref. Ares(2022)909263 - 08/02/2022 Li nets0o2vs6see- 1s/090021 CONTRIBUTION AGREEMENT BETWEEN THE EUROPEAN UNION, REPRESENTED BY THE EUROPEAN COMMISSION, AND THE EUROPEAN BORDER AND COAST GUARD AGENCY ON THE IMPLEMENTATION OF THE BORDER SURVEILLANCE COMPONENT OF THE COPERNICUS SECURITY SERVICE
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Table of Contents PREAMBLE 5 CHAPTER 1 - G E N E RA L PROVISIONS 6 ARTICLE 1 : PURPOSE 6 ARTICLE 2: DEFTNITIONS 6 ARTICLE 3: ENTRY INTO FORCE, IMPLEMENTATION PERIOD AND CLOSURE PERIOD •.••• 10 CHAPTER 2 - R O L E AND RESPONSIBILITIES OF THE PARTIES •••....................••..••••• 10 ARTICLE 4: ROLE OF FRONTEX 10 CHAPTER 3 - IMPLEMENTATION OF THE ACTION 11 ARTICLE 5: FINANCING THE ENTRUSTED TASKS 11 ARTICLE 6: IMPLEMENTATION RESPONSIBILITIES 11 ARTICLE 7: PLANNING RESPONSIBILITIES 12 ARTICLE 8: SPECIFIC RESPONSIBILITIES 13 ARTICLE 9: CONFLICT OF INTERESTS 13 CHAPTER 4- PROCUREMENT, GRANTS, PRIZES 13 ARTICLE 1 0 : GENERAL PROVISIONS 13 ARTICLE 1 1 : THE PROCUREMENT BOARD 14 ARTICLE 12: EARLY DETECTION AND EXCLUSION SYSTEM 14 ARTICLE 13: EU RESTRICTIVE MEASURES 14 CHAPTER 5 - COMMUNICATION 15 ARTICLE 14: VISIBILITY OF UNION FUNDING AND VISIBILITY OF THE PARTIES . . . . . . . . . . . . . . . 1 5 ARTICLE 15: COMMUNICATION AND PROMOTION STRATEGY 15 CHAPTER 6-REPORTS, MEETINGS AND ACCESS TO DOCUMENTATION •••••••••..• 1 6 ARTICLE 16: GENERAL OBLIGATIONS REGARDING INFORMATION AND REPORTING ..•••..• 16 ARTICLE 17 SEMESTRIAL IMPLEMENTATION REPORTS 16 ARTICLE I8 ANNUAL IMPLEMENTATION REPORTS 17 ARTICLE 19 FINAL IMPLEMENTATION REPORT 17 ARTICLE 20 AD-HOC REPORTS 17 ARTICLE2I CURRENCY FOR REPORTING 18 ARTICLE 22: ACCESS TO DOCUMENTS AND PARTICIPATION IN MEETINGS 18 CHAPTER 7 -- FINANCIAL PROVISIONS 18 ARTICLE 23: MULTIANNUAL COSTS PL.ANNING 18 ARTICLE 24: CONDITIONS FOR ACCEPTANCE OF EXPENDITURE 18 ARTICLE 25: PRE-FINANCING PAYMENTS 19 ARTICLE 26: LATE PAYMENT 20 ARTICLE 27: PAYMENT OF THE BALANCE 20 ARTICLE 28: BANK ACCOUNT AND CURRENCY 21 ARTICLE 29: BANK INTERESTS AND FEES 21 ARTICLE 30: ASSIGNMENT OF CLAIMS 21 ARTICLE 3 1 : RECORD-KEEPING 21 CHAPTER 8 -AUDITS AND FINANCIAL PROTECTION OF THE INTERESTS OF THE EU 22 ARTICLE 32: GENERAL CHECKS, REVIEW AND AUDIT PROVISIONS.........sos.as.a......a..............22 ARTICLE 33: RECOVERY 23 ARTICLE 34: SUSPENSION OF THE PAYMENT TIME LIMIT 23 ARTICLE 35: SUSPENSION OF PAYMENTS 24 ARTICLE 36: SUSPENSION OF THE IMPLEMENTATION OF THE ENTRUSTED TASKS ..........25 CHAPTER 9-- OWNERSHIP, INTELLECTUAL PROPERTY RIGHTS AND LIABILITY ·········································································································26 ARTICLE 37: OWNERSHIP 26 ARTICLE 38: INTELLECTUAL PROPERTY RIGHTS 27 ARTICLE 39: COPERNICUS DATA POLICY 28 3
ARTICLE 40: CROSS WAIVER OF LIABILITY 29 ARTICLE 4 1 : LIABILITY TOWARDS THIRD PARTIES 29 CHAPTER IO - D A T A PROTECTION, CONFIDENTIALITY, SECURITY AND EXPORT CONTROL 29 ARTICLE 42: DATA PROTECTION 29 ARTICLE 43: CONFIDENTIALITY 30 ARTICLE 44: SECURITY 30 ARTICLE 45: EXPORT AND TRANSFER CONTROL 31 CHAPTER 1 1 - F I N A L PROVISIONS 31 ARTICLE 46: TERMINATION OF THE AGREEMENT 31 ARTICLE 47: FORCE MAJEURE 33 ARTICLE 48: APPLICABLE LAW AND SETTLEMENT OF DISPUTES 33 ARTICLE 49: PRIVILEGES AND IM"MIJNITIES 33 ARTICLE 50: COMMUNICATION LANGUAGE AND CONTACTS 34 ARTICLE 5 1 : AMENDMENT TO THE AGREEMENT 35 ARTICLE 52: ANNEXES AND ORDER OF PRECEDENCE 35 4
CONTRIBUTION AGREEMENT (hereinafter referred to as the "Agreement") The European Union (EU), represented by the European Commission (hereinafter referred to as "the Commission"), itselfrepresented for the purposes of signing this Agreement by Mr. Timo Pesonen, Director-General, Directorate-General for Defence Industry and Space, on the one part, and the European Border and Coast Guard Agency (hereinafter referred to as "Frontex"), an agency of the European Union, represented by Mr. Fabrice Leggeri, Executive Director, on the other part, hereinafter also individually referred to as "Party" and collectively referred to as "the Parties" have agreed as follows. PREAMBLE Considering 1) Regulation (EU) 2021/696 of the European Parliament and of the Council o f 2 8 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No 1 2 8 5 / 20 1 3 and (EU) No 377/2014 and Decision No 541/2014/EU'; 2) that the Space Programme includes an autonomous, user-driven, Earth observation system under civil control named "Copernicus", offering geo-information data and services, comprising satellites, ground infrastructure, data and information processing facilities, and distribution infrastructure, and fully integrating the needs and requirements of security; 3) that the Commission bears the overall responsibility for the Space Programme, including in the field of security. It supervises the implementation of this Agreement, including all elements specified therein, as well as setting priorities and elements for the evolution of the Space Programme; 4) Regulation (EU) 2 0 1 9 / 1 8 9 6 of 1 3 November 2 0 1 9 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624° (hereinafter referred to as "European Border and Coast Guard Regulation"); 5) Council Regulation (EU, EURATOM) No 2020/2093 of 1 7 December 2020 laying down the multiannual financial framework for the years 2021-2027; 6) Regulation (EU, Euratom) No 2018/1046 of the European Parliament and of the Council of 1 8 July 2 0 1 8 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1 3 0 1/ 2 0 1 3 , (EU) No 1 3 0 3 / 2 0 1 3 , (EU) No 1 3 0 4 / 2 0 1 3 , (EU) No 1 3 0 9 /2 0 1 3 , (EU) No 1 3 1 6 / 2 0 1 3 , (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing ' O J L 170, 1 2. 5 . 2 0 2 1 , p. 69-148. 0JL 295, 1 4 . 1 1 . 2 0 1 9, p . 1-13I 3 O J L 433!, 2 2 . 1 2 . 2 0 20 , p. 11-22. s
Regulation (EU, Euratom) No 966/2012' and in particular Article 62 and Article 1 5 6 on indirect management; CHAPTER I - GENERAL PROVISIONS Article 1 : Purpose 1 . 1 .T h e purpose of this Agreement is to set out the terms and conditions of the specific arrangement for the implementation of the Border Surveillance component of the Copernicus Security Service for the Copernicus component of the Space Programme of the European Union (hereinafter "Copernicus"), as described in Annex II (hereinafter referred to as the "Entrusted Tasks"). This Agreement lays down the rules for the implementation of the Entrusted Tasks, the rights and obligations of the Parties, as well as the modalities of their cooperation. l.2. The objective of the Entrusted Tasks is to a) provide, or contribute to the provision of, high-quality and up-to-date and, where appropriate, secure space-related data, information and services without interruption and wherever possible at global level, meeting existing and future needs and able to support the Union's political priorities and related evidence based and independent decision making, inter alia for climate change, transport, and security; b) deliver accurate and reliable Earth Observation data, information and services integrating other data sources, supplied on a long-term sustainable basis, to support the formulation, implementation and monitoring of the Union and its Member States' policies and actions based on user requirements; c) support the integrated management of the Union's external borders, including but not limited to tackling illegal migration and cross-border crime; d) support the Commission in achieving the general objectives evoked in Article 4, paragraphs l(b) to l(e) of the Space Programme Regulation. 1.3. The Entrusted Tasks are fully financed by the Union Contribution. 1 .4. In the implementation of the Entrusted Tasks, Frontex shall manage the implementation of the Entrusted Tasks in compliance with the Space Programme Regulation, EU Financial Regulation and protecting the financial interests of the EU, and provide a management declaration every year based on the template in Annex VI. Article 2: Definitions Closure Period: the period of time specified in Article 3.5 during which ongoing contracts, grants, prizes w i ll continue to be implemented and managed by Frontex until all obligations under the respective contracts, grants, prizes are discharged. Implementing contracts shall be technically and financially closed, evaluations and final audits shall be carried out. Commission: the European Commission. Conflict oflnterests a conflict of interests exists where the impartial and objective exercise of the functions of a financial actor or other person is compromised for reasons involving family, emotional life, political or national affinity, economic interest or any other direct or indirect personal interest. 4 OJ L 193, 30.7.2018, p . 1 - 2 2 2 6
Copernicus Assets all tangible and intangible assets created, developed or acquired by Frontex under this Agreement and that are: i. fully funded by the Union; and ii. have an individual value greater or equal to EUR 5,000; and 111. have a lifetime of more than one year. Copernicus Assets shall not include Background IPRs. Copernicus third-party spatial data and infonnation licensed or made available for use data and infonnation: by Copernicus which originate from sources other than the Sentinels. Copernicus Services: value-added services of general and common interest to the Union and Member States, which are financed by the Programme and which transfonn Earth observation data, in situ data and other ancillary data into processed, aggregated and interpreted infonnation tailored to the needs of Copernicus users. Copernicus in situ data: observation data from ground borne, seaborne or airborne sensors, as well as reference and ancillary data licensed or provided for use in Copernicus. Copernicus infonnation: infonnation generated by the Copernicus Services following processing or modelling, including their metadata. Days: all references to "days" are to calendar days. Early Detection and a system set up by the EU Financial Regulation and the Exclusion System: Commission Delegated Regulation (EU) No 2 0 1 9 /7 1 5 which includes information in a database managed by the Commission on the early detection of risks threatening the EU financial interests, on the cases of exclusion oflegal and natural persons from participating in EU award procedures or from being selected for implementing EU funds and on the cases of imposition of financial penalties on them. Final Administrative a decision of an administrative authority having final and Decision: binding effect in accordance with the applicable law. Financial Regulation: the Regulation (EU, Euratom) 2 0 1 8 /1 0 4 6 of the European Parliament and of the Council of 1 8 July 2 0 1 8 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1 3 0 1 / 2 0 1 3 , (EU) No 1 3 0 3 / 2 0 1 3 , (EU) No 1304/2013, (EU) No 1 3 0 9 / 2 0 1 3 , (EU) No 13 1 6 / 2 0 1 3 , (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 7
Force Majeure: means any situation or event that: prevents either Party from fulfilling their obligations under the Agreement, was unforeseeable, exceptional situation and beyond the Parties' control, was not due to error or negligence on their part (or on the part of other participants involved in the implementation of the Entrusted Tasks), and proves to be inevitable in spite of exercising all due diligence. Defects in equipment or material or delays in making them available cannot be invoked as force majeure, unless they stem directly from a relevant case of force majeure. Labour disputes, strikes or financial problems cannot be invoked as force majeure by the Party seeking to rely on force majeure. Fraud within the meaning of Article 3 of EU Directive 2 0 1 7 / 1 3 7 1 ° and Article l of the Convention on the protection of the European Communities' financial interests, drawn up by the Council Act of 26 July 1995, as well as any other wrongful or criminal deception intended to result in financial or personal gain. Grave Professional any type of unacceptable or improper behaviour in exercising Misconduct: one's profession, especially by employees, including grave professional misconduct within the meaning of Article 1 3 6 (l ) ( c ) ofthe EU Financial Regulation. Implementation Period: the period of time specified in Article 3 . 3 during which Frontex may enter into new commitments, such as signing contracts, grants or prizes. Internal Control System: a process applicable at all levels of management designed to provide reasonable assurance of achieving the following objectives: a) effectiveness, efficiency and economy of operations; b) reliability of reporting; c) safeguarding of assets and information; d) prevention, detection, correction and follow-up of fraud and irregularities; e) adequate management of the risks relating to the legality and regularity of the financial operations, taking into account the multiannual character of programmes, as well as the nature of the payments concerned. 5 Directive (EU) 2 0 1 7 1 13 7 1 of the European Parliament and of the Council of 5 July 20 I 7 on the fight against fraud to the Union's financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29-41) 6 Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial interests (OJC 316, 27.ll.1995, p. 49-57). 8
Intellectual Property (IP) any and all work product which is subject to intellectual property rights and/or protections under the laws of any country in which the intellectual property rights are sought, including but not limited to works of authorship, copyrighted and copyrightable works, mask works, patented, patentable and non-patentable inventions, registered and non-registered trademarks, company and product names, marks, brands, designs, technical and non-technical documentation, data, datasets, confidential information, formulas, software (e.g. computer programs in object code and/or source code format, requirements analysis, technical and/or application specifications, documentation etc.), devices, trade secrets and any other intellectual property of whatever nature. Two types of IP may be further distinguished if needed: a) Background IP - IP existing before it was generated as a result of this Agreement or of any agreement concluded in the context of the implementation of this Agreement; b) Foreground I P - IP generated as a result of this Agreement or of any agreement concluded in the context of the implementation of this Agreement. Intellectual Property any exclusive or non-exclusive right which exist in any Intellectual Rights (IPR): Property, in particular (but not limited to) any copyrights, database rights, patents, trademarks, service marks, design rights, or trade secrets together with any benefits which such Intellectual Property Rights give to the holder, in particular (but not limited to) the right to use, copy, modify, correct, adapt, enhance, improve, update, make new releases or new versions of, make derivative works of, offer, sell, lease, rent, license, distribute in any other way against or without payment, display, broadcast, transmit, or make accessible in networks (e.g. Internet, Intranet) the Intellectual Property in question in whole or in part and any copies thereof. Irregularity: any type of breach (regulatory or contractual) which could impact the EU financial interests, including irregularities within the meaning of Article 1(2) of EU Regulation 2988/95. Programme: refers to the Copernicus component of the Space Programme of the European Union. Programme Committee: refers to the committee defined in Article 107 of the of the Space Programme Regulation in its relevant configuration. Related Entity(ies) of a a Party's contractors, subcontractors, beneficiaries or prize winners Party: and, in the case of the Commission, also any EU Institutions, specialised agencies or other bodies entrusted with specific tasks within the legal framework of the EU. Related Person: any natural person that has the power to represent Frontex or to take decisions on its behalf. Restricted Person: any entity, individual or group of individuals designated by the EU as subject to the EU Restrictive Measures in the lists provided at www.sanctionsmap.et. Result: any intended outcome of the procurement contracts concluded by Frontex with third parties, whatever its form or nature (tangible and intangible assets, in particular data and information products or software products). A Result may, in addition to newly created materials produced specifically at the request ofFrontex by the contractor, also include pre-existing materials. 9
Sound Financial a principle overarching the implementation of this Agreement, Management: namely economy, effectiveness and efficiency (including regarding internal control). The principle of economy requires that resources used in the pursuit of the implementation of the Entrusted Tasks shall be made available in due time, in appropriate quantity and quality and at the best price. The principle of effectiveness concerns the attainment of the specific objectives and the achievement of the intended results. The principle of efficiency concerns the best relationship between resources employed and results achieved. Space Programme: the programme established by the Space Programme Regulation. Space Programme the Regulation (EU) 2021/696 of the European Parliament and of Regulation: the Council of 28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No 9 1 2 / 2 0 1 0 , (EU) No 1285/2013 and (EU) No 377/2014 and Decision No 541/2014/EU. Article 3: Entry into force, implementation period and closure period 3.1 The Agreement shall enter into force on the date when the last Party signs. 3.2 The duration of the Agreement shall contain an implementation period and a closure period. The duration of the Agreement shall start with the first day of the implementation period and end on the last day of the closure period. 3 .3 The implementation period of the Agreement shall commence when this Agreement enters into force in accordance with Article 3 . 1 and shall last until 3 1 December 2028, subject to any provisions herein on early termination or suspension of the implementation. 3 .4 During the implementation period, Frontex may sign new contracts, grants or prizes. Such contracts, grants, prizes will be implemented and managed by Frontex until the end of the implementation period. 3 .5 A closure period of the Agreement shall commence on 1 January 2029 and end when all activities of the closure period have terminated and at the latest on 3 1 December 2033 (hereinafter referred to as the "End Date"). 3.6 The costs resulting from the implementation of the tasks entrusted under this Agreement may incur still during the closure period and shall be accepted subject to the criteria set out in Article 24 of this Agreement. CHAPTER 2 -ROLE AND RESPONSIBILITIES OF THE PARTIES Article 4: Role of Frontex In the context of this Agreement, Frontex shall be responsible for the implementation of the Entrusted Tasks, as follows and as further specified under Annex II: a) prepare each year an Annual Implementation Plan in response to the work programmes provided by the Commission (the first Annual Implementation Plan shall be provided in the form and contents and within the time limits provided in Article 7); b) conduct award procedures for grants, procurements, and prizes necessary for the implementation of the Entrusted Tasks, including the preparation of the technical specifications and specific arrangements necessary for the implementation of the Entrusted Tasks; c) inform the Commission of the results of the evaluation of any procurement tenders or calls and of any contracts or grant agreements with public and private entities, including subcontracts;
