Article Index


Licensing requirements in the “Specifications of the Legally Binding Instrument” seem to be a little bit ambiguous. The said provisions should be interpreted separately as regards each of the categories “Relevant Knowledge”, “Foreground” and “Background”. For information defined as “Background” the issue seems to be clear – it is not subject to the knowledge sharing requirements. But the other two categories deserve to be given due consideration.

 

The legal basis for knowledge sharing and intellectual property licensing requirements are  Article 12 and Annex II of the Decision of the European Commission C(2010) 7499 of 3 November 2010 laying down criteria and measures for the financing of commercial demonstration projects that aim at the environmentally safe capture and geological storage of CO2 as well as  demonstration projects of innovative renewable energy technologies under the scheme for greenhouse gas emission allowance trading within the Community established by Directive 2003/87/EC of the European Parliament and of the Council (hereinafter referred to as: “Decision”) which follow directly from Article 10a(8) of the Directive 2003/87.

 

The issue is of particular importance because meeting knowledge sharing obligations in each year of the project is a precondition for funding to be provided.

 

The question arises what are concrete licensing requirements in that field given that Article 10a(8) of the Directive 2003/87 and Annex II to the Decision merely mention some slogans and Article 12 itself is rather of a general nature.

 

Article 12 of the Decision reads: “Member States shall ensure that all project operators, consortium members, suppliers and subcontractors who receive substantial benefit regarding the development of their product or service from the public finance provided, share the information on the elements set out in Annex II with other project operators, public authorities, research institutes, nongovernmental organisations and the public in accordance with the further specifications set out in the calls for proposals referred to in Article 5(1).

 

Information shall be shared on an annual basis and shall comprise all information generated and processed in a given year.”

The answer to this question can be found in the “Call for Proposal concerning the financing of commercial demonstration projects that aim at the environmentally safe capture and geological storage of CO2, as well as demonstration projects of innovative renewable energy technologies under the scheme for greenhouse gas emission allowance trading within the Community, established by Directive 2003/87/EC” (published by the European Commission on 9 November 2010, source: http://ec.europa.eu/clima/
funding/ner300/index_en.htm - hereinafter referred to as “Call for Proposal”) and strictly in the Annex 4 thereto, comprising “Specifications for Legally Binding Instrument” (beeing, in short, model agreement).

 

Pursuant to the point 5.1.3.5 of the Call for Proposal, “the Decision requires that certain Knowledge Sharing Obligations are complied with in order for Funding to be provided. The relevant requirements are the Knowledge Sharing Obligations set out in the Specifications for Legally Binding Instrument and the intellectual property licensing requirements set out in the Specifications for Legally Binding Instrument. Project Sponsors should confirm their agreement to comply with the knowledge sharing and intellectual property licensing requirements set out in Article 12 and Annex II of the Decision, and in the Specifications of the Legally Binding Instrument...”
To conclude the considerations seeking to establish the legal grounds for Knowledge Sharing Obligations as regards CCS and RES projects, it is necessary to refer to:


1) Article 10a(8) of the Directive 2003/87,


2) the Decision (of the European Commission C(2010) 7499 of 3 November 2010),


3) the Call for Proposal (however it has a character of a guidance document prepared by the Commission services, and it does not have the force of law),


4) the future Legally Binding Instrument being signed between Project Sponsor and the competent authority of the Member State concerned (Specifications thereof are annexed to the Call for Proposal).

 

Now it’s time to get down to business as regards concrete requirements for the future licence agreements under Knowledge Sharing Obligations, and – to establish what are possibilities to avoid licensing if somebody doesn’t want to share his knowledge.