Lean Governance Working Group

Legal contribution 1

Reflections on the legal organisation of the EUREKA and the EUREKA Secretariat AISBL

‘May the strength be given to me to bear what cannot be changed

And the courage to change what can be,

but also the wisdom to distinguish one from the other.’

Excerpt from ‘Meditations’ by Marcus Aurelius,

(121 to 180 AD)

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Introduction

This note is intended for members of the Lean Governance Working Group (WG) in the context of the discussions initiated by the Swedish Chairmanship on the reforms that should be undertaken to improve the governance of EUREKA. This note is based on the texts cited in Annex 1 and will not address the implementation of any programmes (including the Eurostars programme).

At the second meeting of the WG, held on 6 November 2015, its members have focused on the analysis of the findings of the brainstorming held in Gothenburg (21 October 2015). The WG requested the Secretariat to conduct a legal analysis of the system putting forward, if necessary, the inconsistencies and flaws of the existing legal system under EUREKA governance.

To clearly distinguish for the reader the different topics covered in this note, a clarification of vocabulary is necessary:

- EUREKA: The entire organisation and the programmes that have been created by its State parties following the Paris Communiqué (17 July 1985).

- Political organisation: The decision-making hierarchy, making decisions on behalf of EUREKA (Ministerial Conference, High-Level Group) and not belonging to the AISBL.

- AISBL: (‘association internationale sans but lucratif’) the international non-profit association called ‘EUREKA Secretariat AISBL’.

- By Governance we refer to a general definition: governance is the set of measures and rules adopted by decision-making, information and surveillance bodies, which ensure the proper functioning and control of a state, an institution or an organisation, be it public or private.

Good governance is based on four basic principles: accountability, transparency, rule of law and participation.

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The analysis of the scheme of governance EUREKA stems from its legal status and the decision-making system that has been in place for 30 years. The superposition of the texts and decisions has resulted in a somewhat ambiguous structure that is open to interpretation.

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ContentsIntroduction...........................................................................................................................................2

A. EUREKA: an organisation of uncertain nature...............................................................................4

1. Political statements...................................................................................................................4

a) Paris Communiqué.................................................................................................................4

b) Hanover Declaration..............................................................................................................4

2. The founding texts.....................................................................................................................4

a) Memorandum of Understanding (MoU)................................................................................4

b) The Statutes of the EUREKA Secretariat (Annex 4)................................................................5

B. EUREKA governance: a dual system...............................................................................................7

1. Bicephalous governance: a dual system....................................................................................7

a) Neutralization of the exercise of powers of the General Assembly.......................................7

b) Imperfect subordination of the Association to EUREKA decisions.........................................8

2. Monocephalic governance.........................................................................................................9

a) The weight of member countries and their representatives...............................................10

b) The ‘triangle’ Chairman - Head of Secretariat - Secretariat (Annex A).................................11

C. Fortunes and misfortunes of EUREKA governance......................................................................12

1. Formal confusions....................................................................................................................12

a) Semantics.............................................................................................................................12

b) Editorial approximation.......................................................................................................12

2. Procedural confusions (Annex 7).............................................................................................13

a) Uncertainty over the division of powers..............................................................................13

b) Confusion over implementation procedures.......................................................................13

D. Conclusion...................................................................................................................................15

1. Minimalist position: revision of texts without changing the current situation........................15

2. Maximalist position: consolidation of texts.............................................................................15

3. Middle-road position: Minor reform of the streamlining of decision making..........................15

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A. EUREKA: an organisation of uncertain nature

1. Political statements

EUREKA was born in Paris and its structure was specified in Hanover.

a) Paris Communiqué

EUREKA was established by a single release (Final Communiqué of the European Assises of Technology of 17 July 1985). The text specifies the date of the creation of EUREKA; the goal of EUERKA (the development of high technology for civilian purpose); its role (the selection of projects proposed by industry and research centres); the remainder of the text refers to a subsequent ministerial meeting to resolve issues related to this new organisation called EUREKA.

This text, akin to a declaration, is the manifestation of the will of the parties present1 to cooperate, together and in a coordinated manner, to stimulate innovation in Europe. Officially, legal value can only be given to the Paris Communiqué in terms of it being an affirmation of a collective will, attested by the presence of the 17 foreign ministers along with their research ministerial colleagues. The description of this will remain fairly brief (Annex 2).

b) Hanover Declaration

The Hanover Declaration completes the Paris Communiqué (Declaration of Principles of EUREKA, 6 November 1985). It specifies the objectives, characteristics and criteria of projects, it poses the administrative framework (a small and flexible EUREKA Secretariat acting under the responsibility of the Ministerial Conference) and outlines the chain of decision-making (EUREKA Ministerial Conference, high-level representatives - HLRs).

The wording of the text is more precise than that of Paris Communiqué, but as the title indicates, the document remains a statement which formulates principles. It appears more as a political text than a legally binding one.

2. The founding texts

A third text is necessary - the MoU of 1986, along with the Statutes of the EUREKA Secretariat in 1987, to lay the solid and concrete foundations for EUREKA.

a) Memorandum of Understanding (MoU)

1 17 states represented by the foreign ministers and ministers of research: Germany, Austria, Belgium, Denmark, Spain, Finland, France, Greece, Ireland, Italy, Luxembourg, Norway, the Netherlands, Portugal, the United Kingdom, Sweden and Switzerland.

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This is the first text to which any new member state of the European continent 2 adhering to EUREKA must swear allegiance3.The 1986 MoU4 and the two successive MoU (1992 and 1997), constitute reference texts establishing the basis of the EUREKA system and its operating logic. It creates an administration - the Secretariat - to support the initiatives of member countries. The MOU of 1997 (current) is structured as follows: definition of objectives, structure and organisation of the Secretariat of EUREKA.The legal nature of the MOU was discussed in 2014 at HLG Bergen. It is signed by all the research ministers of the member countries present at the Ministerial Conference in 1986, and its signature is the starting point for any new application for membership. Can it be treated as an international treaty within the definition of the Vienna Convention of 1969 on the law of treaties in the absence of national ratification and the depositing of the MoU to the Secretariat-General of the United Nations? Some representatives formally rejected the possibility of such a conclusion after consultation with the legal department of their Ministry of Foreign Affairs (Annex 3). The representative of the Belgian Ministry of Foreign Affairs (CIP5), estimated that, in the event that EUREKA could not rely on an international agreement, an intergovernmental organisation could claim its status as an international organisation with the Belgian authorities, by making a specific request, duly documented, to the Minister of Foreign Affairs. As this approach was not taken into consideration by the high-level group (HLG), EUREKA must be considered as an intergovernmental organisation incorporated outside of international law, despite the expression of willingness of the parties it reflects and the fact that it is by nature international.

b) The Statutes of the EUREKA Secretariat (Annex 4)

As members did not grant EUREKA the status of international organisation6, it was decided to link the legal existence of its supportive administration to the national law of its member countries - Belgium. So the EUREKA Secretariat was born under the rules of Belgian law as an international non-profit association (AISBL)7.

The articles follow the requirements of the Belgian Law for AISBL on structure and operations adapted to EUREKA’s needs, which can be found in the social definition of the Association (Article 3 of the Statutes). Four basic organs are established: a Chairman of the Association, a General Assembly, an Executive Board and a Head of the Secretariat. Their correlation is clear. Provisions on financial reliability (budget) and legal (representation) complement the Statutes.

Legal personality is essential for any organisation to accomplish its objectives. Hence the Royal Decree of 21 October 1986 granted legal personality to the Association.2 Membership of EUREKA 2014 point 1: New full membership of EUREKA is restricted to countries that are European or have part of their territory within geographical Europe. The eastern boundary of Europe has been defined in doc HLG 1524 p.4, as being west of the Ural Mountains and north of the Caucasus Mountains, but not including the Trans-Caucasus countries, (earlier members of the Soviet Union).3 Statutes of the EUREKA Secretariat Article 4.1: ‘The Association has as members those people nominated as EUREKA High Level Representative by the government signatories of the Memorandum of Understanding of 30 June 1986 and those having become members thereafter.’4 The content of the first MOU will not be analyzed here, we will endeavor to present and analyze the system as it currently stands.5 CIP: Inter-ministerial Committee for Host Nation Policy6 According to the Belgian authorities and certain exchanges of correspondence of the period, it is clear that the status of AISBL was to be temporary. This is also the reason why the Ministry of Finance for 20 years exempted the AISBL from VAT. The temporary having become definitive, charging of VAT was restored in 2007.7 The last Statutes were approved by the HLG in June 2007 and by the General Assembly of the AISBL on 26 October 2007. They were filed with the Registry of the French-speaking Commercial Court of Brussels on 4 April 2008.

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The MoU (page 5, D (i)) anticipated that the Secretariat, an independent legal entity ‘AISBL’ under Belgian law, would have the power ‘to enter into contractual arrangements with suppliers of necessary goods and services’. The MoU sets the framework of the legal capacity of the Secretariat. Thus defined, this framework is quite restricted and is limited to contractual matters with its suppliers.

Strictly speaking, the text does not cover employment contracts, which are contracts that are not classified under the category of service contracts. Indeed, the ‘fathers’ of the Secretariat did not anticipate that it would consist of employees, but of seconded staff and a few locally-employed staff. This is no longer the case – since of 33 employees, 31 are under contract and only two are public servants seconded from EUREKA members: a secondee from the European Commission and another from a member country.

The writers of the MoU did not foresee that the Secretariat could become a service provider. Services for which it is paid within the limits prescribed for an AISBL. Thus, the delegation agreement signed by the Head of the Secretariat with the representative of the Commission was a first 8. Recently, the ESE-Innovation Fund Denmark Agreement (IFD) extended this practice.

The Statutes do not specify the question of legal personality which should have been required in 1987 and is by law since the 2002 reform9. They indicate broadly enough (title VII ‘Commitments of the Association’) that ‘acts binding the Association outside its daily management are signed either by the Chairman of the Executive Board or, failing that, by an Executive Board member appointed by him for this purpose, or by the Head of the Secretariat to whom the Executive Board has delegated special powers and determined for this purpose.’

The Statutes provide an important clarification on the scope of the legal capacity of the Association, the right to sue. Title VIII ‘Representation of the Association’ provides that ‘the Chairman of the Executive Board represents the Association towards third parties’ and that ‘legal action or arbitration involving the Association, both as plaintiff or as defendant, are the responsibility of the Executive Board, represented by the Chairman or a member of the Executive Board designated for this purpose by the latter.’ This situation has unfortunately already presented itself and the AISBL had to appeal to the courts to challenge poorly-executed contracts (e.g. Plexus contract).

Although the MoU has been very discreet about the legal capacities of the Association, under Belgian law these are broad and allow the AISBL to enter into diverse agreements or arrangements with non-governmental organisations, intergovernmental and international organisations (global or regional). The competencies acquired by the Secretariat, especially in terms of project evaluation, has enabled it to develop.

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EUREKA has a dual nature: as an intergovernmental organisation operating according to its own rules and as an association under Belgian law subject to the legislation of its headquarters. This dual nature is directly reflected in its governance system.

8 The Commission covers the administrative costs of managing Eurostars and its project evaluation costs.9 AISBL Act 1919, section 46: The legal personality may be granted by the King under the conditions and within the limits of this Law, to associations open to Belgians and foreigners, who have their headquarters in Belgium and pursuing an international not-for-profit aim, provided their purpose or their activities do not violate the law or public order.

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B. EUREKA governance system

The joint decisions of the political organisation (Ministerial Conferences, HLG), the MoU and the Statutes, lead to the creation of a bicephalous system of legal governance, which is, in reality, a monocephalic governance system. It follows a complex governance system.

The soloist nature of the governance of EUREKA is the result of the identity of the members of the decision-making organs of the AISBL, as it is of the political organisation of EUREKA. The same representatives meet, depending on the subject being treated, in several different ‘mirror’ organs (High-Level Group/Executive Group and General Assembly/Executive Board) created under the aegis of the AISBL or of EUREKA. Decisions cannot in principle be contradictory and the overall coherence of the system is preserved.

The two-pronged system of legal governance proceeds from the Belgian legal status of the EUREKA Secretariat AISBL and of the sui generis nature of the MoU and the texts that complement it (Roles and Responsibilities, Membership and Association, decisions of the Ministerial Conferences).

1. Bicephalous governance: a dual system

The bicephalous governance, political subordination of the Association to EUREKA and its legal grounding in Belgian national law leads to paradoxical situations that should be analysed such as the neutralizing of powers of the General Assembly, the difficulties of transposing decisions taken in the HLG and constraints to Belgian law to which members of the Association are subject, mainly members of its Executive Board.

a) Neutralization of the exercise of powers of the General Assembly

When a subject concerns EUREKA and the Statutes of the AISBL, meetings of the General Assembly are short and decisions adopted by the preceding HLG are quickly endorsed. Thus, budgetary issues

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or decisions regarding changes in the Statutes of the AISBL, were first approved in the HLG, then in the General Assembly, without significant debate, the scenario in terms of decisions having already been agreed in the HLG.

The General Assembly meets, mostly, pro forma. In this respect, articles on the voting rules of the General Assembly may seem superfluous. The General Assembly is a ‘voiceless’ body, subject to the decisions of the HLG or the Ministerial Conference, even though they have no legal existence under the AISBL, without being completely unknown10.

b) Imperfect subordination of the Association to EUREKA decisions

The text ‘Roles and Responsibilities’ decrees a politically subordinate relationship of the Association to EUREKA. In the description of the various bodies, it is stated that the Ministerial Conference is ‘the highest ranking body within EUREKA’, while the General Assembly is merely ‘the highest-level body of the Association.’

However, the Secretariat's role in the EUREKA system and the incorporation of its Statutes to Belgian law, leads to paradoxical situations regarding the transposition of EUREKA decisions and autonomy of operation.

The implementation of the decisions of EUREKA

Some decisions taken by the political organisation of EUREKA are implicitly transposed to the activities of the Secretariat. This can lead to paradoxes that should be resolved, such as those of associated countries.

Indeed, the status of associated countries had never been foreseen under any founding text. The Ministerial Conference, in Madrid in 2001, decided to expand EUREKA outside the geographical area defined by the Paris Communiqué and the Hanover Declaration. In accordance with Article 3 e), the Secretariat expanded its activities to associated countries without, however, the status of associated countries being recognised legally within in the Statutes of Association. In this respect, it could be argued that the Secretariat has activity in an area outside the law, while the de facto Association knows the existence of associated countries with the adoption of the budget in which are transcribed their financial participation.

The absence of modification of the Statutes following the decision in principle of the Ministerial Conference on the associated countries (Madrid 2001), places the associated countries in a fragile position within the AISBL. They cannot participate in any meetings of its bodies, even as observers, despite participating in its funding.

Some decisions of the political organisation of EUREKA must be formally adopted by the organs of the Association, when competencies have been foreseen by the Statutes. This is primarily the exclusive competence of the General Assembly (Article 5.3). Compliance with this requirement obliges the same representatives to meet twice (in the HLG and General Assembly) and duplicate both agendas and respective decisions.

It can already be noted that the General Assembly does not exercise all its powers in this matter. The case of the accession countries is exemplary. Membership and the procedure for the accession of new member countries are specified in two articles of the Statutes (Articles 4.2 and 5.3). Yet,

10 The articles are references to the decisions of the members of EUREKA (Article 3), EUREKA meetings (Article 3) and the MoU (Article 3 and 4).

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according to historical documents available to the writer of this note, no new admission adopted by Ministerial Conferences has been formally translated by a decision of the General Assembly of the Association. If we assume that the members of the Association are those who have signed the MoU 11 at the date of the entry into force of the most recent Statutes (26 October 2007), accessions subsequent to that date may not be formally recognized by the Association. This is notably the case for FYROM (2008), Bulgaria (2010) and Montenegro (2010).

Under Belgian law, the lack of implementation of the correct procedure for membership for these last three countries results in being possible for their membership status to be called into question. However, the Association knows the de facto existence of new members during the adoption of the budget in which the contributions of member countries are listed and at meetings of the General Assembly, which is composed of members of the Association, including these newer members.

Since 2009, Belgian law no longer requires that the Association file with the Register a list of all the current members, listed in alphabetical order and maintain a register of members at the headquarters of the EUREKA Secretariat. However, the writer suggests that such a register should be kept in the Secretariat and that it be approved by the General Assembly, to prevent new members finding themselves at odds with the 2008 Statutes.

Autonomy of the AISBL

A connection with the national law of the EUREKA Secretariat partially emancipates the Secretariat of its parent and the operating rules laid down by the EUREKA Ministers of the member countries included in the MoU. Belgian law regulates the operating rules of the International Association through the 1919 Law as amended by the 2002 Law and imposes obligations such as the election and publication of the composition of the Executive Board; keeping records of decisions of the General Assembly and the Executive Board; to file the annual accounts of the Association or the liability rules of the Executive Board and its members. The obligations resulting from the prescriptions of Belgian legislation are not subject to the approval of EUREKA political bodies but are imposed by law on the HLRs.

Certain legal obligations may be inadvertently ignored by members of EUREKA: The recent procedure for appointing members of the Executive Board has been hampered due to lack of knowledge notably on liability rules of its members, as imposed by Belgian law.

2. Monocephalic governance

Despite its duality, consistency of the system is preserved through political and legal ‘bridges’, more or less apparent, that connect the two organisations (political organisation and AISBL).

The most important bridges are mentioned in the Statutes:

- The name of the Secretariat (the EUREKA Secretariat);- The meetings of EUREKA (Article 3c);- The members of EUREKA (Article 3e);- The MoU (Article 3e and 4.1).

Should be added:

11 We will not pause in this note on the inconsistency of the 2008 Statutes, which cite the MoU of 1986 when the MoU of 1997 was actually the one in force.

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- The identity of members of the various meetings of the two organisations, notably the Chairmanship;

- The Head of the Secretariat who is both responsible before the General Assembly and the Executive Board but also to the Chairmanship of the HLG (MoU 4C (vi) §17);

- The Secretariat is accountable to the Ministerial Conference (Hanover Declaration, page 8, item 2.3).

For these essential links between the political organisation and the Association the role of member countries and the special relationship between the Chairman and the Head of the Secretariat should be distinguished.

a) The weight of member countries and their representatives

It can be observed that, with successive enlargement, member countries carry neither the same role nor the same weight. Inequalities appear, some of which are statutory, others are de facto.

Statutory inequality

Two types of inequality can be distinguished, positive inequalities which give a privileged role to countries and negative inequalities, which, to the contrary, offer less power to the countries concerned.

- Positive inequalitieso The role of the country holding the Chairmanship: the Chairmanship combines the

chairmanship of different groups, that of the Association and defines the annual work programme

o The countries of the Troika: the countries of the current, previous and future Chairmanships. The representation of these countries is taken into account for exterior meetings, which are considered more important.

- Negative inequalitiesAs mentioned above, the MoU and the Statutes have not provided the possibility of expanding relations with countries outside the European continent nor the transition period for European countries prior to their full inclusion in EUREKA:

o Associated countrieso National information points (NIP) (transitional status towards full membership)

These two groups of countries are unknown to the Association and therefore cannot participate in the decision process. This is ironic for Associated Countries that generally demonstrate a certain dynamism within EUREKA.

The statutory inequalities in general correspond to the logic of a system. The fact remains that some countries with an ‘inferior’ status may challenge the rules. Thus, South Korea has expressed its willingness to change its status from that of an Associated Country to full membership, following two renewals of its association. If the legal response to this request, in the present state of the texts, is unambiguous, the answer must be primarily political.

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De facto inequalities

De facto inequalities are more difficult to perceive and most versatile over time. One can raise the weight of some countries due to their geopolitical position, their economic weight or their historical relations. However, we cannot establish a correlation with the amount of their financial contribution. The Russian Federation, whose contribution to EUREKA is similar to that of the main contributors, has been so far been a discreet member.

De facto inequalities can be noted in relation to the personal commitment of some HLRs and the positive contribution they make to the reflections of various groups and bodies.

b) The ‘triangle’ Chairman - Head of Secretariat - Secretariat (Annex A)

The weight of the Chairmanship and its work programme, the role of the Head of the Secretariat as described in the MoU and the Statutes and the importance of administrative and logistical support of the Secretariat make this triangle an essential ‘body’ for the general efficiency of the organisation of EUREKA. The texts present a hierarchical relationship with respect to liability, but also close interdependence between the Chairman, the Head and the Secretariat in the functioning of the organisation. If political initiatives are the Chairman’s responsibility, the Secretariat and its Head support the network and offer it political and strategic advice, when necessary.

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The dual system has worked well politically so far thanks to the uniqueness of fact and EUREKA’s political coherence. One can wonder if, with the external pressure exerted on EUREKA through the demands of association, certain rules should not be reconsidered. From a legal point of view, the bicephalous approach and multiplicity of texts that arises is the source of many hiccups to rules whether they be those imposed by member countries in their relations within EUREKA or those of Belgian legislation. The rule of law is somewhat manhandled by EUREKA governance.

C. Fortunes and misfortunes of EUREKA governance

Over the years, practices have emerged, decisions have been taken by the HLG or at Ministerial Conferences, amendments have been made to texts, but the absence of a consolidated text and systematic monitoring of implementation of decisions in legal texts, has created legitimate confusion and uncertain procedures. Thus, to cite one example, the texts ‘Membership to EUREKA’ and ‘the Associated countries - regulation and procedures’ cannot be read separately at the risk of confusing the procedures to be implemented for a new candidate for association12. This section is limited to quoting only the most obvious examples. For completeness, refer to Annex 5.

12 During the HLG of Lugano (July 2015), this difficulty appeared when discussing the possible association of Chile.

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1. Formal confusions

a) Semantics

The ‘EUREKA initiative’, the ‘EUREKA network’, ‘EUREKA’ are used interchangeably without being explicitly defined. It is not certain that they cover the same concept. The Paris Conference mentions only ‘EUREKA’. Some agreements are signed by the Chairman as ‘Chairman of the EUREKA initiative’ despite the fact that this term is nowhere defined (Annex 6).

The EUREKA Secretariat may refer to itself as the AISBL or the administrative support body if the AISBL. It is indeed not always clear in what context it operates. According to the texts, the work of the Secretariat may vary. For the MoU, Secretariat is confined to a supporting role in the EUREKA network, primarily ‘at a working level’13 and, incidentally, policy and strategy advisor. The Statutes are more concrete and specify the tasks of the Secretariat (Article 3 of the Statutes).

Even the Chairman is both that of the Association and of EUREKA. As Chairman of the General Assembly or the Executive Board, he is responsible under Belgian law for its actions and the documents it signs (including civil and criminal liability); as Chairman of EUREKA this legal responsibility does not exist. His responsibility to carry out his Chairmanship in the interests of the members and EUREKA is purely political. As part of the political organisation of EUREKA, member countries are legally free to take decisions while they are legally supervised when they act on behalf of the AISBL.

Finally, the name of the bodies is sometimes incorrect. The document ‘Roles and Responsibilities’ distinguishes the EUREKA HLG and Eurostars HLG for the implementation of the Eurostars-2 programme. But the activities described in the annex of the Statutes, which refers to the General Assembly of participants in the programme is included in the document ‘Roles and Responsibilities’. The Eurostars HLG14 should therefore be called the Eurostars General Assembly, pursuant to Article 3 d) and the annex of the Statutes.

b) Editorial approximation

As a general remark texts are often approximate leaving a large part to interpretation. We will, in the immediate, make the economy of a syntactic analysis each of these texts. The text that is the Statutes is quite telling:

- References to the MoU can be confusing. Indeed, to designate the same text, different expressions are used: ‘Memorandum of Understanding regarding the EUREKA Secretariat’ (Article 3 e)) and ‘Memorandum of Understanding of 30 June 1986’. The review that resulted in the new Statutes of 2007 did not take account the last MoU of 1997 and continues to refer to the MoU of 1986. This unique reference is inappropriate because the new member countries no longer sign the first MoU but the last one adopted by the Ministerial Conference of 1997.

- Other imprecise terms can be cited such as those of deadlines. The Statutes lay down deadlines for the submission of agendas for example. It is not indicated whether the periods are expressed in working days or calendar days.

13 MoU page 1 : A point 214 Roles and Responsibilities related to the Eurostars programme

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- The text of reference ‘Roles and Responsibilities’ is purely descriptive and gives the impression of a profusion of decision-making bodies.

2. Procedural confusions (Annex 7)

a) Uncertainty over the division of powers

The Ministerial Conference is at once described as a ‘coordinating body’ (Hanover Declaration, 1985) and ‘highest-ranking body within EUREKA’ (Roles and Responsibilities, 2010), while, in practice, it has been several years since it has met.

A same decision on competencies common to the political organisation and to the Association must be taken by the Ministers of member countries and by the General Assembly (General Assembly competencies described in Article 5.3 of the Statutes). It follows that the ministers take the decision in the Ministerial Conference and the HLRs have delegated authority to take the decision concerning the AISBL at the General Assembly. So, for the same decision, the ministers and HLR have the same powers. This contradicts the hierarchical logic but is necessary in a dual sense.

The role of the HLG is somewhat contradictory and should be clarified in the text. According to the Hanover Declaration, the HLG should ‘assist’ the Ministerial Conference. The Roles and Responsibilities document assigns it far greater powers ‘the HLG is the key decision making body acting within EUREKA acting on behalf of the ministers’. ‘Taking part’ or ‘acting on behalf of’ has a very different role in law. The writer of this note is not aware of a general delegation that the ministerial conference would have granted to HLG. The text ‘Roles and Responsibilities’ cannot substitute such a delegation since it was adopted by the HLG itself.

The ‘Roles and Responsibilities’ document was adopted in the HLG and not the Ministerial Conference. It is a curious practice in which an organ attributes / distributes power to other organs and to itself. In principle, it is the highest body that defines activities and competencies of lower organs. To square the circle, the text of the HLG in October 2013 (Annex 8) indicates ‘as Roles and Responsibilities document has been adopted by the HLRs, the HLRs can also decide to change the frequency of the Ministerial Conferences’. For a lawyer, this statement is surprising.

b) Confusion over implementation procedures

The time allotted to writing this note have not allowed for verification that all decisions taken by the HLG were always in accordance with the powers as described in ‘Roles and Responsibilities’ and/or that it obtained a proper delegation of power by a Ministerial Conference.

Must be distinguished the delegation of authority granted to each HLR by his government from the delegation of authority from one organ to another.

o The HLR must have obtained from his government the competence to act in the framework of the political organisation as in the framework of the Association. It should be noted that the Secretariat is not able to verify that HLRs are acting in accordance with the powers delegated to them by their respective governments. Their appointment as HLR by their government is never transmitted to the Secretariat.

o The Ministerial Conference may delegate any of its powers to the HLG but it can do it for the General Assembly, these two organs being the highest bodies of their respective structure. A quick exegesis of formulas allows us to suggest that those who drafted the ‘Roles and Responsibilities’ text wanted to indicate that the General Assembly was dependant on the

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Ministerial Conference in the framework of EUREKA. However, Belgian law ignores the Ministerial Conference and can only recognize decisions taken by the General Assembly or the Executive Board. This is one reason why the Statutes require a record of decisions to be kept and deposited in the Secretariat (Articles 5.4 and 6.6).

A random check on the appointment of the Head of the Secretariat allows for doubt as to whether there has been a systematic compliance with the allocation of powers.

o According to point B.4 of the MoU, the Director of the Secretariat is appointed from seconded personnel. However, the HLG (HLG Haifa of 7 April 2011) has decided otherwise. In doing so, it violated a text adopted by a Ministerial Conference that it did not have the right to modify. The appointment decision could have been challenged. However, under Belgian law, the appointment contains no formal defect since the Statutes were respected. Article 7.1 states that the Director is appointed by the General Assembly from a list of candidates proposed by the Executive Board.

o While the Ministerial Conference has sole authority to decide on enlargement of EUREKA to the associated countries, the association of South Africa (2014) was never confirmed by a Ministerial Conference. However, it is correct that the decision of re-association of Canada and the second re-association of South Korea in 2015 was adopted in HLG (document on the associated countries point II.5).

According to ‘Roles and Responsibilities’, the EUREKA Strategic Road Map must be adopted by the Ministerial Conference, but the one adopted in 2015 was by the HLG of Bergen in June 2014.

Finally, there are some contradictions between the texts, like such as for candidate countries for association. According to the ‘Membership of EUREKA’ text (criteria and procedures, item 8), future associated countries should send their request to the Chairman of EUREKA and copy to the Secretariat while according to the text ‘Associated countries’ (II.1), the application letter should be addressed to the Secretariat and copied to the Chairman.

D. Conclusion

The EUREKA Governance is a dually complex system, which, while logical, is confused and, at times, paradoxical. If we can see some shortcomings described above, we cannot however see many flaws. One can mention the absence of official deputy HLRs for some member countries. Recently, during the approval of the 2014 accounts, the resignation of a HLR from the Executive Board, and the need for a deputy HLR with the same authority delegated by his Government, was raised. The scarcity of ministerial conferences of these past three years is also detrimental to the proper functioning of the system.

Should the system be reviewed under the pressure of enlargement and internationalization?

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The legal analysis of the EUREKA system allows the outlining of three routes for the reform of governance:

1. Minimalist position: revision of texts without changing the current situation- Adaptation of the Statutes to the actual situation of the organisation: new member countries;

status of associated countries and NIPs. Removing historical ‘blips’ which have no purpose. Decision of the General Assembly

- Clarification of the vocabulary used in different texts. Decision of the HLG

- Creation of a stronger link between the political organisation and the Association for the decisions that directly affect the Association. Thus joint HLG-General Assembly meetings could take decisions simultaneously, without the need for two meetings to be held.

Decision of the HLG and the General Assembly

- Adaptation of the Roles and Responsibilities, membership and associated countries texts. Decision of the Ministerial Conference

2. Maximalist position: consolidation of texts - Consolidation all reference texts (MoU, Roles and Responsibilities, membership and associated

countries) into a real constitutional text, taking into account future challenges. Such an undertaking requires a fundamental choice of the legal environment in which members wish to see EUREKA evolve (international, European and national law).

- The Statutes would need to be update and rationalised if the choice is not to transform EUREKA into an international organisation.

Decision of the Ministerial Conference

3. Middle-road position: Minor reform of the streamlining of decision making- Minimalist proposal- Merger of Roles and Responsibilities, membership and associated countries texts.

Decision of the Ministerial Conference

- Avoid duplication of decisions of HLG/General Assembly either by strict division of responsibilities or through joint meetings. Depending on the changes made, decision of the Ministerial Conference or the HLG.

Annex 1

- Paris Declaration 17 July 1985

- Hanover Declaration 6 November 1985

- MoU 1997

- The Statutes of the EUREKA Secretariat AISBL 2007

- Rules and Responsibilities Berlin 24 June 2010 n° 2843

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- Membership - Regulation and procedure 19 June 2014

- Association - Regulation and procedure 19 June 2014 n° 3224

- Ministerial Conference - Communiqué or minutes, when necessary.

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