PCP is a R&D services contract in which the public procurer shares the risks and the benefits related to the IPRs with the R&D provider. The public procurer should ensure that the PCP contracts with R&D providers contain a financial compensation according to market conditions compared to exclusive development price for assigning IPR ownership rights to participating R&D providers, in order for the PCP call for tender not to involve State aid.
The financial compensation compared to exclusive development price should reflect the market value of the benefits received and the risks assumed by the participating R&D provider. The market price of the benefits should reflect the commercialisation opportunities opened up by the IPRs to the R&D provider. The associated risks assumed by the R&D provider comprise, for instance, the cost carried by the R&D provider for maintaining the IPRs and commercialising the products. If the price paid by the public procurer does not reflect the benefits received and the risks assumed by the participating R&D providers, the PCP contract will normally be regarded as State aid. According to the new 2014 State aid framework for research, development and innovation a ‘market price’ is presumed whenever the PCP is conducted in compliance with several cumulative conditions.[1]
[1] See section 2.3 of the Framework for state aid for research and development and innovation.