PUBLIC PROCUREMENT : NEW ADVICE ON HOW TO IMPROVE CONTRIBUTION OF PROCUREMENT TO R&D.

Guidance on how member states can use public procurement to support research and development, without coming up against EU state aid rules, has been published by the European Commission on 14 December.

The central point made by the Commission is that there is scope for some flexibility in the way that the EU public procurement directives, as well as state aid rules, are applied to so-called pre-commercial' procurement.

The term covers situations where the state pays a company to carry out R&D work, to meet identified needs. This includes activities such as solution exploration and design, prototyping and the development of a test series of a new product. It does not include commercialisation.

The Commission is seeking to stress, in its new communication, that member states are free to allow the companies to commercialise the R&D results afterwards (including through the sharing of intellectual property rights, IPR), on the condition that certain rules are followed.

These include the rule that the IPR should not give companies an unfair advantage against other bidders in any future public procurements. In order to prevent this, the state can take steps such as requiring companies to license IPR to third parties under "fair and reasonable market conditions".

Another principle is that the risks and benefits of the R&D work should be shared between the state and participating companies "according to market conditions". This means that companies should compensate the state, at market price, for the benefits they will receive from being able to commercialise the R&D. The Commission suggests that, to achieve this, the company could...