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Dear Hysafe II task force members,

As CEA in-house lawyer in charge of (i) the legal formalisation of European projects (framework programmes projects, ITER project) and of (ii) the constitution of any legal entity into which CEA might participate to (as member or shareholder), I’ve been invited by Mr SERRE COMBE and Mr BENGAOUR to your meeting of October 30th. Unfortunately, I will not be able to attend and I therefore send you this email instead as a first legal opinion.

From your previous exchanges that have been forwarded to me, I understand that you are discussing the possibility of submitting a proposal to a future EC call for proposals that will be issued about an “integrated European testing and analysis research infrastructure for hydrogen and fuel cell energy-chains” (quote from the FP7 Capacities work programme enclosed, page 22).

To that end, you are studying the possibility of creating a Belgian International non profit association (INPA) that will further your current collaboration under the Network of excellence named “Hysafe” which scope is to contribute to the safe transition to a more sustainable development in Europe by facilitating the safe introduction of hydrogen technologies and applications.

But transforming your current NoE into what would have been an I3 in the FP6 supposes, to fit with this future EC call for proposal, a complete rethinking of the project. By reading the above-mentioned quote from the FP7 Capacities work programme, it is obvious that you will have to modify and enlarge the scope of your current collaboration to consider different commitments, responsibilities, etc. In the end, it’s building a whole new project that will include some Hysafe background.

Then, just like any new project, the partners have first to discuss about what they are ready to do together, to define its purpose and scope and what they are ready to involve in it to that end.

When you have agreed on those major aspects of your next project, lawyers will then be able to help you to find the most appropriate legal form for your project. The legal aspects of a project are only its formalisation and have to fit with what the partners are ready to do together, not the contrary.

I therefore consider that it is inappropriate to discuss about the legal form of your project before even defining and agreeing on its main characteristics.

Apart from the above, I draw your attention to the following elements concerning the constitution of an INPA:

- the statutes of an INPA created under Belgian law must take the form of an authentic deed drafted by a notary (minimum cost: 2000 €);

- according to Belgian law, the statutes must be drafted in French, in Dutch or in German; the language so chosen shall be the one governing the social life of the INPA (i.e. the language for the drafting of any of its official and administrative documents such as minutes of the meetings of the general assembly, etc.);

- the official identity and address of the founders will be requested by the authorities before publication and approbation;

- to obtain legal personality, the signed and notarised statutes must be presented to the Belgian service public federal de la justice and must observe the following:

o the names of the members of the Executive Board must be given in full with further details: home address, place and date of birth etc.,

o the document must be accompanied by an explanation of the objective and the activities of the INPA, together with a covering letter addressed to the Minister of Justice,

o approbation of the statutes takes the form of a royal decree (delay: up to 5 months),

o after approbation by royal decree, the basic documents and data concerning the INPA have to be deposited at the commercial court and published in the annexes of the Moniteur belge (Belgian Gazette) (delay: up to 6 months).

Last but not least, depending on the context around the creation of such INPA and the internal rules of each partner, some of them might be obliged to inform or request the approbation of their Board of directors before becoming founders or members of such INPA. If not already done, each partner should check this aspect internally.

Best regards,

Ingrid LY KY Commissariat à l’énergie atomique Legal Affairs Building # 447 – Office # 2098 F-91191 Gif-sur-Yvette Cedex Phone: +33 (0) – Fax: +33 (0)

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Page last modified on October 19, 2007, at 08:28 AM