Tips and Pitfalls in Drafting Statutes for a European Research Infrastructure Consortium (‘ERIC’)
Updated: Nov 24, 2022
The statutes are the most basic document required in the process of establishing a
European Research Infrastructure Consortium (‘ERIC’). They define the key
objectives for which the ERIC is created as well as the means and procedures for
achieving and regulating those objectives. They also lay down important principles and rules such as the ERIC’s tasks and activities, the rights and obligations of members and observers, the bodies of the ERIC, the principles covering the different policies as well as other aspects concerning the internal functioning and the governance of the ERIC.
Statutes could therefore be seen as equivalent to a constitution of a nation, made up of basic rules together with the ideas that surround them and setting out the fundamental principles by which the ERIC is governed.
Statutes Drafting – By a Person Skilled in the Art
Statutes’ drafting is a specialised skill, distinct from general legal or scientific knowledge. If too little attention is paid to the language of the statutes, or when the statutes are not drafted accurately and meticulously, the dire consequences will be felt in the future.
We gathered below a non-comprehensive list of tips and pitfalls for ERICs-to-be and for early-stage research infrastructures that are in the process of working on their ERIC statutes:
- Respect the hierarchy of legal documents: In addition to the statutes, the ERIC is governed by other set of documents, such as the implementing rules, policies, guidelines as well as contracts and SLAs. Correct allocation of norms and principles to the different layers of documents is key to creating a high-quality set of statutes.
- Simplicity: the statutes should be drafted in a plain and a simple manner, to avoid ambiguity and different understanding of the text by third parties. Make sure there is no more than one possible understanding or interpretation of the norm you are trying to create.
- Flexibility: At the same time the statutes should allow a degree of flexibility for changing circumstances. The way things work today may not be the same as they will be in the future, so avoid being over descriptive in your drafting.
- Practicality: Be sure to address foreseeable scenarios, particularly, concerning the work of the General Assembly. For example, sometimes the statutes will require unanimous vote for terminating a members’ membership but fail to include a provision that excludes that member’s voting rights in a decision concerning the termination of its own membership. It is therefore important to carefully consider the 'what-if' scenarios to avoid holes in the statutes.
- Compliance: Make sure to double-check your statutes are consistent with the ERIC Regulation and other applicable laws.
- Avoid uncontrolled ‘borrowing’ from other ERICs: Looking at statutes of other established ERICs can support efficiency and best practice, but ‘borrowing’ without
proper review may be counterproductive and harmful. Always consider whether there is strong evidence that the text you are about to ‘borrow’ reflects best practice and fits your ERIC’s intentions and purpose.
- Poor drafting: the actual drafting of the statues should be done by a person who is ‘skilled in the art’. Every word in the statutes should have a specific purpose and accurately reflect your intentions. Poor drafting will result in incoherent text, internal contradictions and waste of time and efforts by the General Assembly later in time. Time and effort are better spent now in crafting a well-drafted statutes as once the statutes are adopted, revisions are far more time consuming and complicated.
- Unreasonable expectations: it is unlikely that anyone will be able to predict with certainty how the ERIC will function in 5 or 10 years ahead from now. Excessive expectations in terms of regulating the ERIC may lead to over descriptive drafting. The statutes should be kept simple and reasonable, so as to cover the basic elements and structure of the ERIC while respecting the hierarchy of legal documents.
How Can X-officio Help?
X-officio is recognised as having leading expertise and knowledge of the ERIC legal framework, transition to an ERIC legal entity, and a fundamental understanding of the ERIC Regulation. We have assisted several ERICs to draft their statutes and successfully prepare their Step-1 and Step-2 applications to the EU Commission. A key differentiator for our practice is that our team has been involved hands-on in all stages of establishing and operating an ERIC, from early design stage to assisting more mature ERICs with their governance and legal matters, seeing the statutes being implemented in practice. We work in collaboration with the research infrastructure’s management team, and scientific advisors and if so required, with political stakeholders, ensuring consensus and buy-in.