Last updated February 2009

Confidentiality agreements or "non-disclosure agreements" (NDA) aim to guarantee an individual/organisation that information that is about to be made available to another individual/organisation will not be used or revealed to third parties without consent. Exchanging information with other parties is a necessity and, therefore, regularly occurs in joint research projects. Accordingly, confidentiality is an important issue for participants in projects funded under the Seventh Framework Programme (FP7), from the setting up phase of such a joint activity to the implementation and exploitation phases.

Setting up a project proposal requires first developing appropriate ideas for joint research activities and finding the right partners with whom to submit the proposal for funding. Those activities require discussions and the exchange of information between different persons from institutions with different knowledge, background and interests. It might involve giving written or oral information to a third party in order to describe a project idea, revealing know-how one party holds prior to the project, making available any materials that are being exchanged for examination purposes or to define scope, objectives, and tasks for the proposal or for preparations made before the project's official kick-off.

Although copyright affords some legal protection against unlawful copying of works (such as a written document in which a project is described) and other infringements, all parties should nevertheless only reveal any such information or specific documentation under terms of confidentiality in order to safeguard their know-how or ideas in a broader sense. If they do not do so, the information might be freely usable by the other party(ies) after their discussions, whether they have agreed on a partnership or not.

Participants in an FP7 project (i.e. the beneficiaries of the grant) should know from the very beginning that due diligence is required as regards confidentiality. When the work to be done in the project is to be defined and stated in the technical annex (Annex I) to the grant agreement concluded with the European Community (hereafter ECGA), participants should determine the level of confidentiality of the information that they will submit to the Commission for review throughout the project (so-called "deliverables") 1 .

During the execution of an FP7 project and its exploitation phase, the FP7 rules do recognise the participants’ interest in keeping information confidential. The ECGA contains a specific provision on confidentiality that defines the obligation and its term (see article II.9 ECGA). Moreover, confidentiality issues are addressed in the regime of rights and obligations set out in the intellectual property (IP) related section of the ECGA (arts. II.26-II.34), which tries to balance the different interests involved over the course of a project. All those provisions leave room for participants to specify the issues involved.

- Using and disseminating the results

Considerations with regard to confidentiality become particularly significant in the context of the participants’ obligation to use and disseminate their research results. Whereas "use" covers any way of utilising the research results ("foreground") either in other research activities or in industrial/commercial activities without necessarily asking for the disclosure of the results, "dissemination" means the disclosure of foreground to the public by any appropriate means (e.g. a publication). In this context, the FP7 rules explicitly ask participants (and the European Commission) to be especially mindful of confidentiality. In other words, with solid grounds, participants are generally entitled to request their partners not to reveal certain research results or details about such results. Specifications might help define the scope or arguments that can be raised.

- Publishing and other dissemination activities

Special precautions must be taken in the case of planned publications and other activities that imply disclosing results to the public (conferences, websites, etc.) To avoid conflicts, the ECGA requires advanced notification of planned dissemination activities and gives participants the right to object if they feel the publication might interfere with the protection of their results or background 2 (see art.II.30.3 ECGA).

FP7 rules do in fact require participants to protect their foreground if it can be industrially or commercially applied (art.II.28 ECGA). One means for protection is a patent. A requirement for the patentability of an invention is, first of all, its novelty. To qualify for protection, the results in question must not yet form part of the so-called state of the art. They must, therefore, not have been made available by any means prior to the date of filing for protection. Dissemination activities, however, aim to disclose information and thus make it part of the state of the art. Accordingly, novelty and thus patentability may be prejudiced. For this reason, keeping information confidential is essential before protection has been sought.

In order to guarantee a uniform approach by FP7 project participants, it is advisable to define internal rules, including confidentiality clauses for the use and dissemination of results. They can be incorporated in the consortium agreement signed by all participants but can also be drafted separately.

Clauses should exist to precisely determine, on the one hand, the results that shall be exempted from disclosure and, on the other hand, the foreground that can be used and disseminated without limits. 3 Participants might set up rules for the use of a certain confidentiality agreement, procedure and reporting mechanism for negotiations with third parties. The period of validity of the clauses might be understood to cover initial research done before the start of the project or to exceed its end as well as, for example, covering participants withdrawing from the project.

For further information on the content and contractual details of confidentiality agreements you may refer to our document " Confidentiality agreements" and related model.

1. Participants should have clear ideas about the dissemination level of each deliverable and indicate it clearly in the technical annex to the ECGA. In doing this, it is advisable to follow the codes generally used by the Commission:

PU = Public;

PP = Restricted to other programme participants (including the Commission Services);

RE = Restricted to a group specified by the consortium (including the Commission Services);

CO = Confidential, only for members of the consortium (including the Commission Services).

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2. "Background" is the project-related information and IP rights that participants already hold before entering the project.

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3. For example, information forming part of the public domain usually does not fall within the scope of a confidentiality agreement.

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