R&D agreements in the European Union

We have been advising clients on several EU Framework 7 research consortium agreements recently.  For some reason they seem to be creating more legal work than in the past.

These agreements are sometimes negotiated without legal advice, using a template agreement. The quality of the agreement therefore depends on both the quality of the template and the skills of the non-lawyer drafter(s).

Some templates exist that have been developed by industry groupings or are commonly used in an industry sector.  One of the better templates in wide circulation is the DESCA model.  A comparison of this model with other templates, including the IMG, EUCAR and IPCA models appears here.  Our view is that many of these templates are overly-complicated, and we have developed our own, very simple template, which is included in our book, Drafting Agreements in the Biotechnology and Pharmaceutical Industries (OUP, looseleaf; see Precedent 3(c)).

It is desirably to use a template that has been drafted with Framework 7 in mind, as the terms of the consortium agreement must be consistent with the terms of the underlying grant agreement with the European Commission.  Thus, a general-purpose R&D collaboration agreement is unlikely to be suitable.

Unfortunately, some of the consortium agreements that we see are badly drafted.  Sometimes, they look as if they are based on something that was competently drafted, but with some very strange bits as well.  This may be due to version creep, where the drafter is tempted to use the document that they used in an earlier negotiation.  The document they used last time was itself a variation on a document used the time before, and so on.  It may be many years since the document was subjected to rigorous scrutiny, and over time it has acquired an encrustation of poor or situation-specific drafting.  Although this doesn’t happen much with consortium agreements, we have seen draft agreements that look like a variant of one of our own published templates from a decade or more ago.

On a completely separate topic, linked only by the involvement of the European Commission, we have recently prepared a checklist of requirements for an agreement to fit within the block exemption of the EU Research and Development Agreements Regulation.  The checklist appears on our website here.  Our website also has a note comparing the latest block exemption regulation with its predecessor, here.

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