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«Version 10/09/2013 Disclaimer This guide is aimed at assisting beneficiaries. It is provided for information purposes only and its contents are not ...»

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Amendments Guide for FP7 Grant Agreements

Version 10/09/2013

Disclaimer

This guide is aimed at assisting beneficiaries. It is provided for information purposes only and its

contents are not intended to replace consultation of any applicable legal sources or the necessary

advice of a legal expert, where appropriate. Neither the Commission nor any person acting on its

behalf can be held responsible for the use made of these guidance notes.

Foreword

The general Model Grant Agreement was adopted by the European Commission on 10 April 2007 to be used in research projects funded under the 7th Framework Programmes (EU and Euratom Treaties). This model grant agreement (GA) is applicable to indirect actions under the 'Cooperation', 'Capacities' and 'Nuclear Research' (fission) Specific Programmes of FP7 (EU and Euratom Treaties).

Separate model grant agreements were adopted for the 'People' (Marie Curie) and for the 'Ideas' (European Research Council) Specific Programmes.

The purpose of this guide is to provide guidance to beneficiaries of FP7 projects on how to request the modification of the provisions of the GA that they have signed with the European Commission’s services. The guide describes the amendment procedure, the different types of amendments, and provides the model letters that have to be used.

Apart from the "amendment procedure", the guide foresees an "information procedure" for other types of changes, which do not require an amendment.

This guide was updated for the first time on 25 February 2010, following the general introduction of the Legal Entity Authorised Representative (LEAR) procedure and the creation of the participants’ portal, to make fully operational the "information procedure" which is linked to the FP7 IT Unique Registration Facility (PDM-URF), which is a lighter procedure than the one required for an amendment.

This is the second update to this guide. The change is necessary;

- To provide the necessary information about how to request an amendment to switch to the electronic-only signature and transmission of the financial statements (Form C), and the electronic-only transmission of the certificates on the financial statements and certificates on the methodology (Forms D and E) that were introduced by the modification of the FP7 GAs of 14 December 2012.

Due to this modification, beneficiaries of GAs signed after 1 January 2013 will transmit these Forms only electronically, while consortia of GAs signed before 1 January 2013 will have to introduce a request for an amendment to switch to the electronic-only transmission of these Forms.

- To update Point 6.3 related to the “changes in accounting system of beneficiaries, and mistakes in indirect costs calculation” in accordance with the new version of the “Rules on verification of existence, legal status, operational and financial capacity” of 29 December 20121.

- To clarify certain issues raised in feedback from users.

This guide should be used by FP7 beneficiaries and can be found in the Participant Portal website.

Questions on all aspects of EU-funded research can be sent to the FP7 Helpdesk web service: http://ec.europa.eu/research/enquiries.

Commission Decision of 18 December 2012 on the adoption of the Rules to ensure consistent verification of the existence and legal status of participants, as well as their operational and financial capacities, in indirect actions supported through the form of a grant under the Seventh Framework Programme of the European Community for research, technological development and demonstration activities and under the Seventh Framework Programme of the European Atomic Energy Community for nuclear research and training activities.

TABLE OF CONTENTS

–  –  –

1. WHAT IS AN AMENDMENT?

An amendment to a grant agreement (GA) is a legal act modifying the commitments initially accepted by the parties and which may create new rights or impose new obligations on them, or modifying significant parts of the GA. It allows the parties to modify the GA during its lifetime.

An amendment has the following characteristics:

- It can only be done in writing – an oral agreement is not binding on the parties.

- It enters into force after the signature by the coordinator and the Commission through an exchange of letters.

- It takes effect on the date agreed by the parties; if no date specified, on the date of the Commission's approval (it has no retroactive effect unless agreed by the parties).

- It can only be implemented after the entry into force of the GA and before the final payment is made.

- It has to be signed by persons having the same capacity to represent the legal entity as those who signed the initial GA.

- All the other provisions of the GA not affected by the amendment remain unchanged and continue to have full effect.

- The amendment forms an integral part of the GA.

- It has to be compatible with the rules applicable to the GA (Financial Regulation, Rules for Participation…) and with the articles of the GA. For instance, the consortium cannot propose an amendment to allow the coordinator to subcontract its tasks.





- It cannot have the purpose or the effect of making changes to the GA which might call into question the decision awarding the grant or result in unequal treatment of the beneficiaries.

The amendment is effected through an exchange of letters:

- a letter-request from the Commission or the coordinator on behalf of the consortium,

- a letter of acceptance of the amendment (the Commission or the coordinator on behalf of the consortium). With an exception in the case of tacit approval of the amendment of Article II.37.2.

As there is no single amendment document in FP7, the content of both letters must clearly demonstrate the agreement of the parties. Both letters together form the amendment.

The request for amendment must be complete and must enclose the supporting documents justifying the modifications proposed if necessary.

The GA may be affected by other types of changes which do not constitute an amendment, but which must be communicated to the consortium or to the Commission through an information procedure.

During the information procedure the parties inform each other about circumstances which do not depend on the agreement of the parties and therefore do not require an amendment but change the GA in which a given beneficiary participates.

Examples:

Universal transfer of rights and obligations, change of legal name, address, etc.

The cases when they must be used and the procedure to follow are detailed in point 6 of this guide.

2. WHEN DOES THE GA NEED TO BE AMENDED?

As a general rule, an amendment is necessary whenever the GA has to be modified.

This is typically the case for any change of the data included in the core part of the GA and for changes of Annex I. Requests for changes to any of the standard annexes (Annex II and III) which were the subject of a Commission Decision cannot be accepted.

In some rare cases the GA gives the parties the possibility to carry out certain modifications without changing the GA. A typical case is the budget transfers

described in Article 5.2:

(…) "Beneficiaries are allowed to transfer budget between different activities and between themselves in so far as the work is carried out as foreseen in Annex I".

In some other cases, the GA explicitly states that a written amendment is needed, like in Article II.8.5 on the lifting of the suspension of the whole or a part of the

project:

"The suspension of the whole or a part of the project may be lifted once the parties to the grant agreement have agreed on the continuation of the project and, as appropriate, any necessary modification, including extension of the duration of the project, has been identified by means of a written amendment".

Finally, there are cases where the need for an amendment must be assessed carefully. For example, an amendment is not needed in the case of a change of name or legal details of a beneficiary (other than the coordinator) that does not imply a change of legal entity. This is not considered an amendment to the agreement. In this case the beneficiary (not the coordinator) will notify the changes to the validation service of the Commission, via the Unique Registration Facility (URF), including any relevant supporting documents. The Commission will enter the information in its IT system(s) and send an acknowledgement to the beneficiary concerned to inform that it has taken note of the change and that the Commission database has been updated accordingly. For more information on this, see point 6 of this guide.

In some cases the change may be presented as a change of name or details but may in fact go beyond this and may require an amendment. In case of doubt about the nature of the change affecting them, before introducing a request, beneficiaries are encouraged to contact informally for advice, the Commission officer (s) in charge of the project.

Example:

Company A is a beneficiary in Project X, sells its mobile phone business to company B; even if the same people, research units, etc. continue working in the project: this is not a change of name and requires an amendment to the GA.

3. INTRODUCTION OF AN AMENDMENT REQUEST

3.1. Who (Article II.36.1 and 2 of GA) Article II.36 - Requests for amendments and termination at the initiative of the consortium.

1. Amendments to this grant agreement may be requested by any of the parties.

Requests for amendments and termination shall be signed by the legal representative of the parties and submitted in accordance with Article 8. Any request or acceptance by the consortium or a beneficiary(ies) shall be submitted by the coordinator. The coordinator is deemed to act on behalf of all beneficiaries when signing a request, an acceptance or rejection letter concerning an amendment as well as when requesting a termination. The coordinator shall ensure that adequate proof of the consortium’s agreement to such an amendment or termination exists and is made available in the event of an audit or upon request of the Commission.

2. In the case of change of coordinator without its agreement, the request shall be submitted by all other beneficiaries or by one of them representing the others.

The parties to the GA are, on the one hand, the Commission and on the other hand, the beneficiaries.

The initiative to amend the GA is normally taken by the consortium.

However, the Commission can also propose an amendment e.g. in case of errors to be rectified or modifications of Annex I following a project review. This is also possible when the Commission submits a "counter-proposal" to a request by the consortium in case it does not completely agree with it. For more information on this see point 4.1.

The coordinator is given a prominent role in the GA, being the intermediary between the consortium and the Commission. The coordinator is in charge of submitting any request of amendment by the consortium as a whole or at the initiative of one or several beneficiary(ies) and is deemed to act on behalf of all beneficiaries when signing a request, or an acceptance or rejection letter concerning an amendment.

Any amendment request or acceptance or rejection letter signed by the coordinator commits the consortium. The Commission will not usually verify the agreement of all beneficiaries.

However, according to Article II.36.1, the coordinator has to ensure that adequate proof of the consortium's agreement to such an amendment exists and is made available in the event of an audit or upon the request of the Commission. This means that the proof of the agreement of the beneficiaries must exist even if its submission is not required when the amendment is made. Evidence of agreement does not need to be a formal letter; e-mails or minutes of a project meeting would suffice.

The written request should clearly indicate that the modifications are requested in accordance with Article II.36 of the GA or should explicitly state that they are made on behalf of the consortium. However, should the coordinator not include this reference, the Commission cannot reject the request on this ground.

Only in the specific case of a change of coordinator without its agreement can beneficiaries submit an amendment request (all of them or one representing the rest of them, in accordance with Article II.36.2).

Who signs?

The legally authorised representative of the parties will sign the amendment (either the request or the acceptance letter).

• For the Commission, the Authorising Officer.

• For the beneficiaries, the legal representative of the coordinator (as mentioned in the first page of the GA), on behalf of the consortium. If the legal representative of the coordinator has changed; it should notify the Commission of this change (Article II.3.f). For more information see section 6.6 of this guide.

If the coordinator is to be changed without its agreement, the rest of beneficiaries or one representing the rest of the consortium have to sign the amendment.

3.2. How (Articles 8 and II.36)

Formal procedure:

The request must be submitted in accordance with Article 8.1 of the GA:

"1. Any communication or request concerning the grant agreement shall identify the grant agreement number, the nature and details of the request or communication and

be submitted to the following addresses:

For the Commission: European Commission DG [name] [B-1049 Brussels [Belgium] [Luxembourg] For the coordinator: [name of contact person] [contact address] (…) Valid request - conditions

• The request must be submitted in writing and sent to the address indicated in Article 8.1 of the GA. Requests sent via e-mail or fax are not valid.

• It has to be signed by the legal representative of the coordinator on behalf of the consortium.

• The model letters enclosed in point 8 of this guide should be used.



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