Agreement Research And Development

In principle, an R&D contract can be terminated without notice. However, if the counterparty has a particular interest in continuing the R&D contract or can expect continued cooperation in this regard, the termination must be based on a serious interest or unforeseen circumstances within the meaning of Article 6:258(1) of the Netherlands Civil Code. Adequacy and fairness requirements may lead to the need to comply with a reasonable period of notice. A distinction should also be made between a fixed-term R&D contract and an R&D contract of indefinite duration, and compensation may also be paid if an R&D contract is terminated. You should therefore take this into account when establishing and terminating an R&D contract and preferably seek advice from a legal expert. In addition, the application of the rules must be subject to an sensible restriction of competition. Otherwise, certain restrictions of competition may be authorised in accordance with the de minimis notice, provided that the conditions set out in the contract notice are fulfilled. In the Communication, the European Commission and THEA define an effective restriction of competition. R&D agreements are horizontal agreements of minor importance. Therefore, it is not considered that they appreciably restrict competition where the market share held by the parties on the relevant market concerned by the R&D agreement is less than 15%.

If the parties are actual or potential competitors, this rate shall be reduced to 10 %. Nevertheless, stricter national competition rules could apply. “The research and development agreement is a systematic activity that combines both basic and applied research and aims to find solutions to problems or create new goods and knowledge.” [1] However, the prohibition of restrictions of competition does not apply to SMEs or companies with a low market share. For them, it is easier to design R&D agreements, because the turnover and market share of these companies can be so low that their agreements often cannot have a significant impact (a prerequisite for the application of European competition rules) on trade between Member States. Clauses relating to the ownership of secret know-how and intellectual property rights must be formulated very precisely by the parties to the R&D agreement. The results of joint research and development, which can be extremely valuable, need to be discussed and elaborated in depth by the parties. Questions relating to ownership (whether the results belong to one participant or all participants), terms of use (free, unlimited or not, etc.) and other conditions should be decided by both parties. This part of the agreement is very important, as many disputes can arise and good cooperation can be lost due to imperfection, omissions and impressiveness of the clauses.

The parties are advised to take into account all possible ambiguous situations and to guarantee clauses, in particular: the following restrictions of competition are considered strict where R&D agreements significantly affect trade between Member States: the joint R&D agreement may be subject to competition rules. The European Commission and other EU/EEA institutions support R&D with the exception of strict competition rules provided for in a block exemption regulation. . . .