Article 12b Artificial Intelligence gigafactory

Article 12b 1.

An AI gigafactory shall be located in a Participating State that is a Member State. It shall be financially supported by a partnership between the Union and one or more Participating States, represented by the Joint Undertaking, and an AI gigafactory Consortium, which may include one or more technology infrastructure suppliers, legally represented by an AI gigafactory Coordinator. That partnership between the Joint Undertaking and the AI gigafactory Coordinator shall take the form of a Hosting Agreement. Each Participating State of the AI gigafactory partnership shall conclude an administrative agreement with the Joint Undertaking laying down the coordination mechanism for the payment of and reporting on contributions to applicants established in that Participating State. That agreement shall include the agreed access time of the Participating State, the schedule for access, conditions of payment, reporting requirements and audit requirements.

Article 12b 2.

Multi-site AI gigafactories shall be operated by a single AI gigafactory Consortium and shall function as an integrated technical entity. Constituent sites of a multi-site AI gigafactory shall be interconnected with very high speed, high bandwidth networks. In a multi-site single-country AI gigafactory, at least one constituent site shall meet the scale of an AI gigafactory. A multi-site multi-country AI gigafactory Consortium shall be composed of at least one hosting entity per hosting Member State, and at least one constituent site from the participating Member States shall meet the scale of an AI gigafactory. Each hosting entity of a multi-site multi-country AI gigafactory shall be severally responsible vis-a-vis the Union for the Union contribution it receives. The multi-site multi-country AI gigafactory Consortium agreement shall specify the liability allocations between hosting entities, as well as the technical, operational, regulatory and financial responsibilities of each hosting entity.

Article 12b 3.

Participation in an AI gigafactory Consortium of legal entities from non-Participating States shall be subject to restrictions or exclusion where such participation is considered contrary to the Union’s strategic assets, interests, autonomy or security. In accordance with Regulations (EU) 2021/694, (EU) 2021/695 and (EU) 2021/1153, the call for expression of interest for the selection of an AI gigafactory Consortium shall restrict participation in the AI gigafactory Consortium to legal entities established in Participating States, or to legal entities established in specified associated countries of Horizon Europe, the Digital Europe Programme and any subsequent relevant Union funding programme, or in other third countries in addition to Participating States which do not contravene the security and defence interests of the Union and its Member States. The restrictions and exclusions referred to in this paragraph shall not, in principle, apply to legal entities established in third countries which have signed an AI gigafactory Cooperation Agreement or a similar agreement with the Union. The call for expression of interest for the selection of an AI gigafactory Consortium may provide that legal entities established in other third countries are eligible, provided that such legal entities comply with the requirements applicable to those legal entities to guarantee the protection of the security interests of the Union and the Member States, and to safeguard classified information. Those requirements shall be set out in the work programme.

Article 12b 4.

AI gigafactories shall be selected based on a joint procurement between the Joint Undertaking and one or more contracting authorities from the Participating States. An AI gigafactory Consortium shall benefit from an explicit commitment by the Member State, provided to the Joint Undertaking, to finance its share of the AI gigafactory to be established within the territory of that Member State, following its selection in accordance with paragraph 19. That commitment shall be provided by the Member State before the launch of the call for expression of interest.

Article 12b 5.

The Union financial contribution referred to in Article 5 shall cover up to 17 % of the capital expenditure (CAPEX) investments in the overall computing infrastructure of the AI gigafactory. Alternatively, the Union contribution may take the form of a pre-agreed guaranteed purchase of access time to the AI gigafactory, equivalent in value up to 17 % of the CAPEX of the overall computing infrastructure of the AI gigafactory. One or more Participating States shall at least match the Union contribution. The remaining investment and the operational expenditure (OPEX) of the AI gigafactory shall be covered by the AI gigafactory Consortium. In the case of multi-site single-country AI gigafactories, the full Union contribution, with the corresponding compute access rights, may be allocated to the largest constituent site. In the case of multi-site multi-country AI gigafactories, the Union contribution may be allocated to AI gigafactories that meet the required scale and to one AI gigafactory per participating Member State.

Article 12b 6.

A selected AI factory may substantially scale up to become an AI gigafactory. In such a case, the Union financial support already provided for that AI factory shall be counted as part of the Union’s contribution towards the CAPEX of the AI gigafactory computing infrastructure referred to in paragraph 5 of this Article. The same provisions apply for the Participating States. The AI factory hosting agreement referred to in Article 10 shall be amended accordingly, where appropriate. The additional investment into that AI factory that becomes an AI gigafactory and the OPEX of the AI gigafactory shall be covered by the AI gigafactory Consortium.

Article 12b 7.

A Member State may provide its contributions for an AI gigafactory directly through national funding mechanisms or indirectly through other sources. A Member State shall, by administrative agreement with the Joint Undertaking, channel its respective contributions, including those referred to in paragraph 5 of this Article and any other additional contributions, in total or in part, through the Joint Undertaking, which shall then manage and disburse those funds to the identified AI gigafactory on that Member State’s behalf. The voluntary financial contribution may consist, in total or in part, ṅof funds a Member State receives under Regulation (EU) 2021/241 of the European Parliament and of the Council ( 4 ) or Regulation (EU) 2021/1060 ( 5 ).

Article 12b 8.

A Member State may decide to allocate part of the financial contribution it receives under Regulation (EU) 2021/241 (“RRF allocations”) to finance, in whole or in part, its voluntary financial contribution to an AI gigafactory in accordance with paragraph 7 of this Article, including to cover its contribution in cases where an AI gigafactory is not selected for Union funding. Member States may also decide to use their remaining RRF allocations to finance their national contributions to AI factories, supercomputers or quantum computers, or to other AI, quantum technology or HPC investments related to the objectives of the Joint Undertaking and identified by the Member State in its RRP. Member States shall channel such contributions through the Joint Undertaking in accordance with paragraph 7 of this Article. Upon the signature of a contribution agreement and the full and irrevocable transfer of the designated RRF allocations to the Joint Undertaking, at the latest by 31 August 2026, the Member State shall be deemed to have met the deadline set in Regulation (EU) 2021/241.

Article 12b 9.

A Member State may decide to allocate part of the financial contribution it receives under Regulation (EU) 2021/241 or (EU) 2021/1060 or under another funding programme to finance the acquisition and operation of new, advanced, state-of-the-art AI, HPC or quantum computing service and data infrastructures within its territory. Such Member State may, by administrative agreement with the Joint Undertaking, channel such investments through the Joint Undertaking, which shall then manage and disburse those funds to the identified investment on its behalf. Upon the signature of a contribution agreement and the full and irrevocable transfer of the designated RRF allocations to the Joint Undertaking, at the latest by 31 August 2026, the Member State shall be deemed to have met the deadline set in Regulation (EU) 2021/241.

Upon request by the Member State concerned, an advanced, state-of-the-art infrastructure as referred to in the first subparagraph shall be awarded the EuroHPC AI and Compute Infrastructure Seal by the Joint Undertaking, provided that it achieves a performance level at least equivalent to that of any of the established EuroHPC supercomputers, including AI factories.

The Joint Undertaking shall federate and network the infrastructures having been awarded the EuroHPC AI and Compute Infrastructure Seal with the EuroHPC AI, compute or quantum infrastructures, as appropriate.

The Member State may decide to provide the Joint Undertaking with access time to the infrastructures funded in accordance with this paragraph. Such contributions shall not be taken into account for the calculation of the contribution referred to in Article 5(1). Such access time made available by the Member State shall be managed by the Joint Undertaking as part of the Union’s access time.

Article 12b 10.

Member States may provide the Joint Undertaking with access time to one or more of their EuroHPC supercomputers, AI factories or AI gigafactories through an administrative arrangement, which shall define the share of access time granted and its duration. Such access time shall become Union access time and shall be primarily used to grant access to start-ups and SMEs for their research or innovation activities. It shall not be taken into account as in-kind contribution by the Member States.

Article 12b 11.

The Union access time to one or more of the Member States’ EuroHPC AI factories or AI gigafactories may be used to give free access to European projects that develop open-frontier AI models that are major drivers of innovation, which will be selected through a Union-wide open competition organised by the Joint Undertaking. Such open models shall be made widely available to public authorities across Europe as well as to the European scientific and business communities. The Member States may complement that effort by providing to the Joint Undertaking additional access time for such projects of Union added value. Such access time shall not be taken into account as in-kind contributions by the Member States.

Article 12b 12.

The Joint Undertaking shall own the part of the AI gigafactory computing infrastructure corresponding to the Union contribution to the CAPEX referred to in paragraphs 5 and 6 for a duration of at least five years from the start of the AI gigafactory’s operations, as further specified in the AI gigafactory Hosting Agreement. Alternatively, where the Union contribution takes the form of a pre-agreed guaranteed purchase of access time to the AI gigafactory referred to in paragraph 5, the duration shall be of at least five years as further specified in the AI gigafactory Hosting Agreement. In either case, the duration shall be extended in the event of a substantial upgrade of the AI gigafactory computing infrastructure. Without prejudice to the winding up of the Joint Undertaking, as referred to in Article 23(4) of the Statutes, ownership shall be transferred in accordance with the AI gigafactory Hosting Agreement or be extended for an agreed period under the conditions specified in the AI gigafactory Hosting Agreement. In the case of transfer of ownership to the AI gigafactory Consortium, the residual value of the AI gigafactory computing infrastructure shall be converted into equivalent access time for the Union. Where no transfer of ownership to the AI gigafactory Consortium takes place in accordance with the Hosting Agreement, and a decision is taken to decommission, the relevant costs shall be borne by the AI gigafactory Consortium.

Article 12b 13.

The access time of the Union and the Participating States to an AI gigafactory shall be directly proportional to their respective financial contributions to the CAPEX of the computing infrastructure of the AI gigafactory, or to the pre-agreed guaranteed purchase of access time to the AI gigafactory.

Article 12b 14.

The Governing Board of the Joint Undertaking shall determine:

(a)

the conditions of the Union’s access time to AI gigafactories;

(b)

specific rules for access conditions to AI gigafactories that concern the allocation of the access time of the Union for projects and activities considered as strategic for the Union;

(c)

specific rules for access conditions to AI gigafactories that concern the allocation of the access time of the Union for projects and activities related to security.

Article 12b 15.

When determining the conditions of the Union’s access time pursuant to paragraph 14, the Governing Board shall ensure that access:

(a)

is granted to users residing, established or located in a Member State or in a third country associated to the Digital Europe Programme, to Horizon Europe or to the Connecting Europe Facility;

(b)

is free of charge for: users from entities governed by public law; industrial users for applications related to research and innovation activities funded by Horizon Europe, the Digital Europe Programme or the Connecting Europe Facility and those awarded a Seal of Excellence under Horizon Europe or the Digital Europe Programme; and private innovation activities of SMEs and scale-ups;

(c)

includes reserved computing resources specifically for Union-funded research and innovation projects, ensuring guaranteed availability and scheduling priority.

Article 12b 16.

The Governing Board shall monitor the share of the Union’s access time for the different types of users referred to in paragraph 15, point (a). In cases where there is a significant imbalance in shares of access time between the different types of users versus demand, the Governing Board shall take appropriate corrective action to address that imbalance.

Article 12b 17.

Contributions from the Union and the Participating States shall be subject to conditions ensuring the protection of the Union’s strategic interests. The specific conditions referred to in this paragraph shall be laid down in a dedicated AI gigafactory Hosting Agreement. The AI gigafactory Hosting Agreement shall be governed by Union law, supplemented, for any matter not covered by this Regulation or by other Union legal acts, by the law of the Member State where the hosting entity is established. The AI gigafactory Hosting Agreement shall:

(a)

set out in detail the ownership and governance structure of the AI gigafactory;

(b)

include provisions ensuring the effective and proportionate scrutiny and control of the AI gigafactory by the Union for safeguarding the Union’s strategic assets, interests, autonomy or security;

(c)

specify the financial contributions of the Union, of the Participating States and the public or private partners of the AI gigafactory Consortium, including the guaranteed access time to the AI gigafactory referred to in paragraph 13, as appropriate, and its duration;

(d)

specify, if appropriate, any other Union interests resulting from any Union investments regulated by specific investment agreements between the AI gigafactory Consortium and InvestEU;

(e)

set out the eligibility conditions for the non-Union users of the AI gigafactory, which are to comply with the same conditions as the eligibility conditions specified in paragraph 3;

(f)

set out the detailed conditions for access for the Union users of the AI gigafactory and the accounting arrangements for the access times to the AI gigafactory services;

(g)

set out the quality of service offered to the Joint Undertaking users when operating the AI gigafactory, as described in the service level agreement included in the AI gigafactory Hosting Agreement;

(h)

set out the arrangements for the acquisition, operation and use of the AI gigafactory data and computing infrastructure, including the user requirements from the public sector, where appropriate, and, where the AI gigafactory Consortium includes one or more technology infrastructure suppliers, include the provision of enhanced conflict-of-interest safeguards concerning those suppliers;

(i)

list the conditions for the transfer of ownership referred to in paragraph 12, where appropriate;

(j)

detail the extension of ownership or of the pre-agreed guaranteed purchased access time and the phasing-out conditions for the AI gigafactory, where appropriate;

(k)

list the liability conditions for operating the AI gigafactory, where appropriate;

(l)

specify the obligation of the AI gigafactory hosting entity to submit by 31 January of each year to the Governing Board an audit report and data on the use of the Union access time in the previous financial year;

(m)

contain an arbitration clause, within the meaning of Article 272 TFEU, granting jurisdiction over all matters covered by the Hosting Agreement to the Court of Justice of the European Union.

Article 12b 18.

The AI gigafactory shall include a public governance body composed of representatives from the Commission and the Participating States providing public funding to the specific AI gigafactory. The composition and working arrangements of such public governance body shall be specified in the AI gigafactory Hosting Agreement. Without prejudice to the AI gigafactory Consortium’s management and operational autonomy, the following elements shall require explicit prior approval from the designated public governance body:

(a)

any proposed access agreements with entities from third countries that might raise concerns regarding the Union’s strategic assets, interests, autonomy or security;

(b)

substantial changes to the legal and financial structure or control of the AI gigafactory impacting the Union’s interests or those of the Participating States, such as a change in its ultimate ownership or control, any relocation of critical assets outside the Union or major financial restructuring decisions;

(c)

significant change in the strategic purpose of the AI gigafactory.

Article 12b 19.

Following a call for expression of interest, the AI gigafactory Consortium shall be selected by the Governing Board of the Joint Undertaking through a fair and transparent process, with the support of a panel of independent experts and of an accredited financial institution appointed by the Governing Board to carry out an evaluation, based, inter alia, on the following criteria:

(a)

technical evaluation:

(i)

objectives and technical quality of the proposal;

(ii)

quality of the workplan;

(iii)

quality of the physical, IT and networking infrastructure;

(iv)

quality of service, including security and trustworthiness;

(v)

sustainability and energy efficiency;

(vi)

consortium experience and know-how in setting up similar large-scale facilities;

(b)

potential impact:

(i)

impact on the European AI ecosystem, including its competitiveness and talent pool;

(ii)

Union added value, including the contribution to strategic autonomy and technological sovereignty;

(c)

financial feasibility:

(i)

investment commitment of the AI gigafactory Consortium;

(ii)

quality and financial viability of the proposed business model, including due diligence to be carried out by the appointed accredited financial institution.

Article 12b 20.

Where the Consortium does not include one or more technology infrastructure suppliers, the suppliers of the AI gigafactory shall be selected by the AI gigafactory Consortium based on fair and transparent tender specifications that shall take into account general system specifications, and in particular the user requirements from the public sector, provided by the Joint Undertaking in the call for expression of interest and further specified in the AI gigafactory Hosting Agreement. The selection shall be based on fair, open and transparent criteria, and shall also ensure Union added value and address the security and resilience of the supply chain. The selected tenderers shall comply with the eligibility conditions specified in paragraph 3.

Article 12b 21.

The Joint Undertaking may establish framework contracts for the provision of essential and high-demand components, such as advanced AI processors. The AI gigafactory Consortia may use the framework contracts referred to in this paragraph for their procurement.

Article 12b Artificial Intelligence gigafactory

1. Visão geral

1.1 Referências

1.2 Requisitos identificados

1.3 Normas relacionadas

2. Requisitos identificados

3. Normas relacionadas