DESCA consortium agreements: background vs foreground IP

In a DESCA consortium agreement, background is everything a partner brings into the project (data, know-how and rights it held before joining that are needed to carry out the work or use its results), while foreground is the older name for what the project creates, now called results. DESCA lists each partner's background in Attachment 1, gives royalty-free access to whatever is needed to carry out the project, and gives access on fair and reasonable conditions when a partner needs it to exploit its own results. For a European Defence Fund project the same logic applies, but the EDF grant agreement adds rules on background lists, control by non-eligible countries and transfers, so the model has to be adapted rather than copied.

What is DESCA?

DESCA (Development of a Simplified Consortium Agreement) is a model consortium agreement for EU research projects. It is maintained by a core group of research and industry organisations (ANRT, EARTO, KoWi, LERU, VTT and ZENIT), coordinated by Fraunhofer and the Helmholtz Association, with a wider consultation group of experts. The current models are DESCA Horizon Europe 2.1, published in February 2026, and a version for Horizon Europe projects with associated partners. The website does not publish a version for the European Defence Fund, and DESCA itself says the model must be adapted to each project.

Background, foreground, results: what do the terms mean?

The vocabulary changed between framework programmes, which causes confusion in negotiations.

The EDF Model Grant Agreement defines background in Article 16.1 as any data, know-how or information, including intellectual property rights, held by the beneficiaries before they joined the agreement and needed to implement the action or exploit the results. It defines results in Article 16.2 as any tangible or intangible effect of the action, whether or not it can be protected.

How does DESCA handle background?

Background is handled through a positive list. Under section 9.1 of DESCA 2.1, the parties identify and agree on the background for the project in Attachment 1 and tell each other if access to specific background is subject to legal restrictions. Anything not identified in Attachment 1 carries no access right obligations. A party can add background during the project with written notice, but modifying or withdrawing listed background needs approval of the General Assembly.

DESCA's own elucidation calls Attachment 1 a vital document and advises partners to check what the others are listing and, more importantly, not listing. Two practical consequences follow:

• List narrowly and precisely. Name the specific software, data sets, designs or patents the project needs, with any conditions, rather than "all know-how of department X".
• Check the gaps. If a partner's essential background is missing from the list, the consortium may later be unable to deliver or exploit, and the remedy becomes a negotiation.

What access rights does DESCA give by default?

Access rights in DESCA are non-exclusive, carry no right to sublicense unless agreed, are free of administrative transfer costs, must be requested in writing and are granted only when they are "Needed".

"Needed" has two tests. For carrying out the project, access is needed if without it the tasks would be technically or legally impossible, significantly delayed, or require significant extra financial or human resources. For exploiting your own results, access is needed only if exploitation would otherwise be technically or legally impossible, a stricter test.

Results belong to the party that generates them. Joint ownership arises only when contributions cannot be separated for protection, which mostly matters for patents; DESCA recommends a detailed joint ownership agreement when commercially valuable IP is involved.

How do publications and joint results work under DESCA?

IP protection and publication pull in opposite directions, and DESCA sets a procedure to balance them. Under section 8.4 of DESCA 2.1, during the project and for one year after it ends:

An objection must include a precise request for the changes needed, and the objecting party may not continue its opposition unreasonably once appropriate measures are taken.

Jointly owned results have their own default under option 1. Each joint owner may use them royalty-free for non-commercial research and teaching without asking the others, and may exploit them or grant non-exclusive licences without a right to sublicense, provided the other owners get at least 45 calendar days' advance notice and fair and reasonable compensation. For valuable IP, a joint ownership agreement that sets shares, costs and licensing terms is safer than relying on the default.

How are confidentiality and liability handled?

Confidentiality in DESCA covers information marked as confidential, and oral information designated as confidential in writing within 15 calendar days. Under section 10.2, a recipient may use it only for the purpose for which it was disclosed and must protect it for five years after the final payment of the granting authority.

Liability is limited by default. Under section 5.2, no party is liable to another for indirect or consequential loss, such as loss of profit, revenue or contracts, except for breach of confidentiality. Each party's total liability towards the others is capped at once or twice its share of the project costs, a figure the consortium chooses. Neither limit applies to damage caused by a wilful act or gross negligence, or where the law does not allow it. DESCA is governed by Belgian law by default, and the parties choose a dispute route: WIPO mediation and arbitration, ICC arbitration or the courts.

How does a DESCA consortium take decisions?

The General Assembly is the decision body. Under section 6.3.4, it can decide only when two thirds of its members are present or represented, each member has one vote, and decisions need a two-thirds majority of the votes cast. A party that can show a decision would severely affect its own work, time for performance, costs, liabilities, IP rights or other legitimate interests can veto it: during the meeting when the item was on the original agenda, and otherwise within 15 calendar days of receiving the draft minutes or the outcome of a written vote, and a party that breaches its obligations can be declared a Defaulting Party if it does not remedy the breach within 30 calendar days of written notice. A Defaulting Party loses its vote.

These rules matter for IP because changes to the background list need General Assembly approval. A partner that wants to withdraw background after signing has to convince the others, which is why Attachment 1 deserves time before signature.

What changes for a European Defence Fund project?

The EDF grant agreement sets IP rules that a consortium agreement must respect, and several go further than Horizon Europe. They come from Annex 5 of the model grant agreement and from Regulation (EU) 2021/697:

• A formal background list. Beneficiaries must list pre-existing industrial and intellectual property rights with their owners, and the coordinator submits that list to the granting authority before the action starts.
• Background free from restrictions. Background subject to control or restrictions by a country, or an entity from a country, that is not eligible under the call and that would make the results subject to that control must not be used and must be explicitly excluded, unless agreed with the granting authority.
• Results free from restrictions. Beneficiaries must ensure the results are not subject to such control.
• Ownership by the generator, unless the consortium agreement specifies another regime; for research actions, joint ownership where contributions cannot be separated, with a written joint ownership agreement.
• Transfers need approval. Transferring results, or granting exclusive licences for research actions, to entities in non-eligible countries requires prior approval, with a reasoned assessment of the impact on EU and Member State security and defence interests.
• Access for public authorities. In research actions, EU institutions get royalty-free access to results for policy purposes (non-commercial), and national authorities get royalty-free access to the special report for use by their armed forces or security services.

Confidentiality, classified information and publicity

The EDF grant agreement adds its own layers. Article 13 obliges the parties to keep information identified as sensitive confidential, to handle classified information under the EU rules for protecting classified information (Commission Decision 2015/444), and to obtain the granting authority's written approval before subcontracting tasks that involve classified information or disclosing it to anyone, including other participants. Annex 5 goes further on publicity: for EDF actions, communication and dissemination activities need the granting authority's prior written approval. A DESCA publication procedure built for open research therefore needs an extra approval step in an EDF consortium.

A worked example

Take a hypothetical three-partner EDF consortium: a Flemish SME with sensor-fusion software, a research institute with a test facility, and a mid-cap that integrates the result into a vehicle.

The SME keeps control of its core product, the mid-cap can still sell what the project built, and nobody discovers a missing licence in the final month.

How do you adapt DESCA for an EDF consortium?

1. Align definitions and references with Article 16 and Annex 5 of the EDF grant agreement, replacing references to Horizon Europe grant agreement articles that have no EDF equivalent.
2. Turn Attachment 1 into the EDF background list, with owners, conditions and an explicit exclusion of restricted background.
3. Add security and export-control clauses for classified information and controlled technology, consistent with the programme security instruction and national rules.
4. Add a transfer clause that reflects the granting authority's approval rights and passes obligations on to any new owner.
5. Decide exploitation terms early, including whether access for exploitation is royalty-free or on fair and reasonable conditions, and for which fields of use.
6. Plan the special report and who may see it, for research actions.

Negotiate these points while the consortium is being formed, not after the proposal is submitted; see how to find partners for an EDF consortium. FADEC's membership includes consortium support and shared legal and compliance templates, and coordinators can add a Consortium Coordinator Support module; see how FADEC helps with EDF consortium building. This article explains the model texts and is not legal advice for a specific agreement.

Quick answers

What is the difference between background and foreground? Background is the data, know-how and rights a partner holds before the project and that are needed to carry it out or use its results. Foreground is the older word for what the project itself produces, now called results in Horizon Europe and European Defence Fund grant agreements.

Is there a DESCA version for the European Defence Fund? The DESCA website publishes models for Horizon Europe, including version 2.1 of February 2026 and a version for projects with associated partners, but no version for the European Defence Fund. EDF consortia that start from DESCA adapt it to the EDF grant agreement.

Do partners have to give access to their background for free? Under DESCA, access to background needed to carry out the project is royalty-free unless Attachment 1 says otherwise. Access needed to exploit a partner's own results is granted on fair and reasonable conditions.

Who owns the results of an EDF project? The beneficiaries that generate them, unless the consortium agreement sets another regime. The granting authority does not own them, and transfers to entities in non-eligible countries need its prior approval.