The European Research Infrastructure Consortium (ERIC) is a unique legal entity under EU law, adopted in 2009 to facilitate the establishment and operation of European Research Infrastructures. The ERIC provides a basic internal structure that is flexible and defined in its statutes by its members, sort of a half-way-house between a treaty-based international organisation and a national legal entity, but with a strong European flavour.
To date, 24 ERICs have been established. Although the ERIC allows participation by non-EU countries (in addition to EU associated countries and intergovernmental organisations), only a limited number of non-EU countries have joined an ERIC as full members to date. Significant players in the global research arena, including the US, Canada, Japan, Australia, to name but a few, remain reluctant to join an ERIC. How come?
There are various reasons why non-EU countries have not joined any of the existing ERICs. From a legal perspective, the main reasons could be summarised as follows:
- Reluctance to accept the jurisdiction of the European Court over litigation among
the members of the ERIC or between the members of the ERIC and the ERIC as well as over any other litigation to which the European Union is a party (as required by Art. 15 of the ERIC Regulation). This is probably the main deal-breaker for non-EU countries, as they will only accept international dispute resolution in their dealing with third countries (such as the international court of justice or the World Trade Organisation, but not a European court).
- The requirement that Member States or associated countries must jointly hold the majority of the voting rights in the assembly of members (Art. 9(3) of the ERIC Regulation). This means that EU member states and EU associated countries could, at least in theory, pass resolutions that would disfavour non-EU members, for example, increase the annual membership fees for non-EU members only (unless such decision requires a sufficient large majority or unanimous voting).
- Fear (whether justified or not) that a decision taken by the assembly of members would cause a non-EU member to breach their national laws. This is less likely to occur in the case of EU members, due to the long process of harmonisation of national laws at EU level, i.e., EU-wide legally binding standards met in all Member States and the making of national laws more identical.
- Inability to take part in the EU legislative process as non-EU countries are not represented in the Council, the European Parliament or indeed any of the committees. As such, they have no say in future implementation of any changes to the ERIC Regulation which could potentially adversely affect their rights and obligations.
- Other practical legal issues may stand in the way, due to the fact that the ERIC Regulation remains silent on issues such as work permit for international staff employed or seconded by a non-EU member to the ERIC; import and export of equipment from outside the EU; as well as other rights, immunities and privileges that are otherwise common in research infrastructures set up as a treaty-based intergovernmental organisation.
Are there ways to facilitate the joining of non-EU countries to ERICs as members or equivalent?
At the EU and international levels efforts are underway to create an alternative legal framework for international research infrastructure consortia. Until such efforts materialise, some of the weaknesses in the governance of the ERIC identified above could be addressed, provided sufficient thought is given to the ERIC Statutes at an early stage of their preparation.
The Statutes could, for example, provide that the assembly of members may enter into special agreements with third countries (or significant institutions from such third countries) and grant them rights and obligations that are commonly reserved by the Statutes only to members or observers of the ERIC. Any such contractual agreements will have to be carefully drafted to make sure that they do not place a third country at a more favourable position compared with an observer status or indeed membership in the ERIC. A special agreement of this kind should also be distinguished from the status of a ‘permanent observer’ which has been added as a possibility in the Statutes by some of the existing ERICs. Striking the right balance is not always easy and a careful assessment of various issues, including liability, representation, winding-up, voting rights, contributions, governance, etc. must be given. As always, there is more than one correct way to mitigate the challenges and difficulties explained above, but some ways are better than others and our team at X-officio would be happy to assist in tailoring the right solution for your ERIC.