Dear all
we do not agree with the proposed approach.
Instead we share IBM’s view on the procedure as being unacceptable
and most of the detailed comments raised by NSN in the attached email.
Before any changes impacting the existing agreements signed by all are made,
a proper discussion by all legals is required.
Kind regards
Heinrich Stüttgen
From: fiware-ga-bounces at lists.fi-ware.eu [mailto:fiware-ga-bounces at lists.fi-ware.eu] On Behalf Of
JOSE JIMENEZ DELGADO
Sent: Sunday, February 03, 2013 9:57 AM
To: Peter.Fatelnig at ec.europa.eu; Jesus.Villasante at ec.europa.eu;
Maria-Concepcion.ANTON-GARCIA at ec.europa.eu; Arian.ZWEGERS at ec.europa.eu;
Ragnar.Bergstrom at ec.europa.eu
Cc: 'fiware-ga at lists.fi-ware.eu'
Subject: [Fiware-ga] (no subject)
Dear all
Last week we had a FI-WARE PCC where the new governance structure, as proposed in the mail (Thursday
from M. Concepcion) was briefly discussed.
Most companies favored the new approach , but a number of companies indicated that the legal
departments should have a greater involvement in the process.
The PCC agreed to send to the EC (in behalf of those companies who cannot be present at the meeting
on Monday) the specific comments they would like to make. As indicated, those comments do not
represent the general feeling of the PCC which was not able to find a consensus position due to the
lack of time and the proximity of the meeting on Monday. We send them to inform the EC of the
position of those companies
I am relaying those comments to you without further comments. If you need clarification, please
contact the relevant companies
Comments from IBM
The current proposed process is not acceptable for IBM. We request that any change to the CA or the
DOW, if required, will be discussed and negotiated properly among all parties and their legal
representatives.
This includes a proposed drafted wording of the CA in a time frame that allows for negotiations and
discussions among all the parties. We can not accept that a wide document which was not discussed
profoundly will supersede the signed CA.
One last thing - it is not clear to our legal department why the changes in the governance structure
are expected to be in an amendment to the DOW. Each project has a Consortium Agreement in place
which specifies the governance structure. Any change in that respect should be done in the
Consortium Agreement. If the change is intended to deal with the relationship between the projects
this should be done as an amendment to the Collaboration Agreement and not in a DOW.
Comments from NSN
* General comments:
o With this document the PPP should be implemented like a company.
o The decision power is now in a board.
o The decision making should now be top-down and not bottom-up from the projects.
The projects and project partners should only have the role to execute guidance
by the Executive Industry Board.
o In order to find a way to implement such changes with respect to a fixed model
text for the Grant Agreement and Special Clause 41 this text should be included
in the Description of Work, officially called Annex II - Technical Annex.
o That means major changes in the legal framework are hidden in a technical document,
which is usually not checked by these people, who are signing contracts. Therefore,
partners may run into the trap to sign a standard Grant Agreement and Consortia
Agreements and they may not be aware that with the Grant Agreement they implicitly
accepted legal changes via Annex II.
* Executive Industry Board:
o The power is now with the Executive Industry Board. They try to implement this as
a company board. Before it was only elaborating a vision. Now they should steer the
overall PPP in terms of strategic choices, the industrial commercialization/business
strategy, the take-up and exploitation beyond the FI-PPP and the programme
communication and visibility. That means that this board will finally make business
related decisions. I do not believe that this can be accepted by project partners.
Everyone is making own business decisions and will definitely not follow decisions,
which are made by other companies.
o Such decisions would also require to open business strategies of these companies,
which are members of the EIB.
o The EIB does not have any responsibility for their business oriented decisions,
if companies following them get economic problems.
o There is a major mismatch between decision power and accountability.
* Program Chair:
o The notion of a "CEO" indicates that they want to implement the PPP like a company,
which it is not and cannot be. FI-PPP is collaborative research.
o It is said that the Program Chair will put into action the guidance for the EIB and
the Advisory Board. Therefore, the decision power is at EIB and to some extend at
the Advisory Board.
* Project Coordination Group:
o The former proposed role basically remains.
o The role is extended to implement operationally the decisions from the EIB.
* Project Management Office:
o It should implement decisions by the EIB. This sentence confirms that the EIB
is taking decisions in a top-down manner, which is against the spirit of
collaborative research.
* Project Coordinator:
o The basic description of the role is acceptable. However for staffing and
supporting programme activities the Coordinator needs a feedback with his
partners, because resources have to come from partners.
o It is not acceptable that the Coordinator simply decides like in a company
hierarchy about the allocation of resources of other organizations.
o The approach gives the impression that with accepting this governance model
project partners are losing all their rights how to use these resources, which
they are spending and where private organizations are funding 50 %.
• The mandate of the EIB in particular “the industrial commercialisation/business strategy,” is
seen very critical with respect to competition law. Basically, this mandate is violating EU
competition law.
• Nokia Siemens Networks does not accept that as a project participant would render dispute
resolution powers to the Programme Chair: e.g. “The PC also acts as a “mediator” between two or more
partners in case of conflict, his advice shall be considered as definitive.”
• We are also not supporting that the decision making is delegated from the individual projects
to the Executive Industry Board (EIB)– even if NSN would be a member of such board.
• The statement “Programme Management Office (PMO) manages coordinates the implementation of the
decisions of AB, EIB and SG
” confirms that the intention is to have a top-down decision making
process. This is not supported.
Nokia Siemens Networks are not involved in a Phase II use case project. However, we have to assume
that the FI-WARE DoW should also be changed accordingly in order to get a consistent legal framework
in Phase II and therefore Phase I partners in FI-WARE would be affected and have to make decisions,
whether they want to accept this with all possible implications on FI-WARE.
---
Jose Jimenez
Project coordinator
Fi-ware
(34) 91 482 2660
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