Can international organizations (IOs) become founding members of an ERIC, or can they only join after the inaugural meeting of the ERIC Assembly of Members, which must approve their participation?
A legal analysis of this issue is provided in the following short article.
The establishment and operational structure of an ERIC are governed by Council Regulation (EC) No 723/2009 of 25 June 2009, as amended by Council Regulation (EU) No 1261/2013 of 2 December 2013 ("the ERIC Regulation"). The term "founding member" is not defined in the ERIC Regulation and is used informally by some ERICs to describe members involved in the initial application process, distinguishing them from later joiners. However, this designation does not confer legal benefits or additional privileges such as preferential voting rights. In this note, "founding member" refers to entities recognized in the Commission Decision as part of the original applicant group for establishing an ERIC, prior to the first meeting of the assembly of members.
The ERIC Regulation does not specify criteria for founding membership or explicitly prevent IOs from becoming founding members. A detailed review of Articles 5 and 9 of the ERIC Regulation is necessary to clarify if there is an implicit prohibition in the regulation. In undertaking this examination, it is important to employ the general EU law principle of proportionality, which requires that the interpretation of the ERIC Regulation does not go beyond what is necessary to achieve its objectives, balancing the intended aims against any potential restrictive effects. In particular, the principle of proportionality requires that any inferred meanings or applications of the ERIC Regulation are suitable and the least restrictive means for achieving the intended legal objectives, while ensuring that any disadvantages caused are not disproportionate to the aims of the ERIC Regulation.
Article 5: Application for the setting-up of an ERIC
The title of Article 5 of the ERIC Regulation implies that its purpose is to outline and govern the procedures and requirements necessary for establishing an ERIC. Indeed, the wording that follow include provisions detailing who can apply, what information needs to be included in the application, and the process that will be followed by the EU Commission in reviewing and deciding on the application. The scope of Article 5, as suggested by its title, seems very relevant to the question at hand, that is, who can apply for the setting up of the ERIC?
Article 5(1) reads: “the entities applying for the setting-up of an ERIC (hereinafter referred to as applicants) shall submit an application to the Commission.”
Analysis: It is evident that Article 5 anticipates that "entities" will handle the application for establishing the ERIC. Although the term "entities" is not explicitly defined, it appears consistently throughout the ERIC Regulation, notably in Article 9(1), as will be explored further below. This consistency is also observed in section (10) of the preamble to the ERIC Regulation, which mandates, “In order to permit an efficient procedure for the setting-up of an ERIC, it is necessary for the entities willing to set up an ERIC to submit an application to the Commission…” and in section (7) of the preamble to the ERIC Regulation, which declares, “it should be for interested Member States, on their own or in conjunction with other qualified entities, to define their needs for the establishment of research infrastructures in this legal format.”
Therefore, it is clear from the above that an application for the setting-up of an ERIC can be submitted by “entities,” or at the very least “qualified entities,” that is, entities that satisfy the conditions articulated in Article 9(1).
This conclusion is further supported by Article 9(5), which is more explicit on “entities” that may apply for the setting up of an ERIC, being “associated countries, third countries and intergovernmental organisations applying for the setting-up of or for membership in an ERIC shall recognise that that ERIC shall have legal personality and capacity in accordance with Article 7(1) and (2) and that it shall be subject to rules determined in application of Article 15” [emphasis added by the author].
Once again, it seems very clear from the wording of Article 5, supported by Article 9(5), that there is nothing to prevent IOs from being included as one of the 'entities' submitting an application for the establishment of an ERIC.
In support of this conclusion, examining section 2.2. of the ERIC Guidelines titled “Application” proves insightful, particularly the section under the sub-heading “Content of the application” that clarifies the requisites pertaining to the contents that must be included within the request submitted to the Commission for the establishment of an ERIC. Specifically, section (5) on page 11 of the ERIC Guidelines states, “If one or more members are associated countries, third countries or intergovernmental organisations: a declaration, by each of those members, recognising the legal personality and capacity of the ERIC, agreeing that it will be subject to rules and jurisdiction as defined in the ERIC regulation and providing equivalent treatment as an international body or international organisation with respect to VAT and excise duties exemption and to procurement rules. A template for this declaration is provided in Annex 5 (associated countries and third countries other than associated countries) and Annex 6 (intergovernmental organisations).”
Article 9: Requirements for membership
The title of Article 9 in the ERIC Regulation suggests that the primary purpose of this Article is to delineate the conditions and criteria that entities must fulfil to attain membership in an ERIC. Since Article 5 of the ERIC Regulation already outlines the eligibility and process for establishing an ERIC, including the application process, Article 9 does not aim to address this aspect. Instead, it concentrates on detailing the specific requirements, limitations, and certain rights and obligations for prospective members, and it provides clarity on some of the procedures related to membership.
Article 9(1) provides that the following entities may become members of an ERIC: (a) Member States (b) Associated countries (c) Third countries other than associated countries, and (d) IOs.
Article 9(2) provides that “the membership of an ERIC must include a Member State and two other countries that are either Member States or associated countries. Further Member States or associated countries may join as members at any time on fair and reasonable terms specified in the statutes and as observers without voting rights on conditions specified in those statutes. Third countries other than associated countries as well as intergovernmental organisations, may also become members of an ERIC, subject to approval by the assembly of members referred to in Article 12(a), in accordance with the conditions and procedure for changes in membership laid down in its statutes”.
Article 9(5) provides that “associated countries, third countries and intergovernmental organisations applying for the setting-up of or for membership in an ERIC shall recognise that that ERIC shall have legal personality and capacity in accordance with Article 7(1) and (2) and that it shall be subject to rules determined in application of Article 15”.
Analysis: The classification of “entities” into four different categories in Article 9(1) might raise questions regarding its necessity, considering that these categories basically encompass all countries worldwide and IOs. Why not articulate something equivalent to “any country and international organisation” may become a member of an ERIC?
The clarification for such detailed segmentation is found in Article 9(2), which distinguishes the treatment between EU Member States and associated countries (on the one hand), and third countries and IOs (on the other hand). The first purpose of Article 9(2) is to ensure that membership of an ERIC always includes at least one Member State and two other countries that are either Member States or associated countries. This is required to ensure the European dimension of the ERIC. The second purpose of Article 9(2) is due to the difference emanating from the EU Treaty principles such as non-discrimination and existing bilateral agreements between the EU and associated countries. Consequently, EU Member States and associated countries cannot be denied membership in an ERIC if they conform to certain fair and reasonable terms specified in the statutes. In contrast, third countries and IOs, not being EU Member States or without an association agreement granting them comparable rights, can be refused membership by the other (current or prospective) members of the ERIC, with no obligation to reference to “fair and reasonable terms”, which means that they can be denied membership without any justification.
Therefore, the objective of Article 9(2) is: (a) to safeguard the European dimension of the ERIC by ensuring a minimum level of participation by Member States and associated countries throughout all phases, from the establishment of the ERIC to its winding-up, and (b) to protect the rights granted to EU Member States by the EU Treaty and to associated countries through bilateral agreements with the EU, ensuring that they are not subjected to discrimination or arbitrary membership refusals by the Council.
An alternative interpretation of Article 9(2), which suggests that IOs cannot be part of the entities applying for the set-up of an ERIC as “founding members” due to the necessity of Council approval for their membership, is not supported by the wording of the ERIC Regulation. This interpretation not only diverges from the explicit wording of Article 5(1) and Article 9(5) of the ERIC Regulation, as explained above, but it also conflicts with the fundamental EU principle of proportionality. As previously stated, this principle of proportionality requires that any inferred meanings or applications of the ERIC Regulation are suitable and represent the least restrictive means for achieving the intended legal objectives. Furthermore, it ensures that any disadvantages caused are not disproportionate to the aims pursued by the ERIC Regulation. Finally, had there been any intention to exclude IOs from achieving founding member status, such a provision would have been incorporated under Article 5, which deals with the application for the establishment of an ERIC, rather than under Article 9, which addresses requirements for membership.
Conclusion
In conclusion, based on the detailed examination of relevant articles of the ERIC Regulation, supported by the ERIC Guidelines and the principle of proportionality enshrined in EU law, there seem to be substantial clarity that IOs may be part of the entities applying for the setting-up of an ERIC and become “founding members”.
Any interpretation to the contrary of Article 9(2), suggesting that IOs cannot be included as a founding member not only deviates from the explicit wording and intent of Article 5 and 9 of the ERIC Regulation, but is also ruled out by the fundamental EU principle of proportionality.
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