EU Law: New Defence Procurement Directive

Yesterday, 14 January 2009 the European Parliament adopted the new Defence Procurement Directive, with amendments. By 597 votes in favour to 69 against with 33 abstentions, the EP overwhelmingly approved the report prepared by Alexander Graf Lambsdorff (ALDE, DE).

The new Directive concerns public contracts in the fields of defence and security, and it is based on the Commission’s Proposal for a directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security.

The provisional adopted EP legislative resolution text is to be published during this Thursday through this web page:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+20090114+TOC+DOC+XML+V0//EN&language=EN

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EP press release

At the moment of writing, there is a press release, European defence and security market strengthened: deal on public contracts (14 January 2009), available here:

http://www.europarl.europa.eu/pdfs/news/expert/infopress/20090113IPR46066/20090113IPR46066_en.pdf

In addition to the main points of the Directive, the press release informs us that the adopted amendments (somewhat different from the Committee report) have been agreed with the Council.

This should set the scene for final texts and translations, formal adoption by the Council, signing by the Council and the European Parliament and publication in the Official Journal of the European Union in the near future.

After that the member states of the European Union have to adopt the laws and regulations necessary to implement the new Directive.


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Committee report
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The vote of the European Parliament was based on the report by the Committee on the Internal Market and Consumer Protection, prepared by the Rapporteur Alexander Graf Lambsdorff. The Report A6-0415/2008, including the proposed amendments, is available here:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2008-0415+0+DOC+PDF+V0//EN&language=EN


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Commission’s Defence package

As we have seen in earlier posts, the Commission’s Defence package consisted of three main parts. There was the Communication on the European defence industry COM(2007) 764 final. Then there was the proposed Directive on intra-Community transfers of defence products COM(2007) 785 final, adopted with amendments by the European Parliament 16 December 2008 and set to be published in the Official Journal of the European Union this spring.

Proposal: Defence Procurement Directive

The third main ingredient was the proposed Directive on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security, Brussels, 5.12.2007 COM(2007) 766 final, available here:

http://ec.europa.eu/enterprise/defence/defence_docs/COMM_2007_0765_F_EN.pdf


The Commission’s five page press release Commission proposes enhancing openness and transparency in EU defence markets (Brussels, 5 December 2007 MEMO/07/547) offers a quick overview of the proposal:

http://ec.europa.eu/enterprise/defence/defence_docs/MEMO-07-547_EN.pdf

The proposed Defence Procurement Directive would apply specifically to the procurement of arms, munitions and war material, as well as related works and services within the European Union. At the same time, member states could also use it for certain particularly sensitive non-military procurements in areas such as protection against terrorism, where contracts often have similar features to defence contracts.

Procurement of non-sensitive and non-military equipment would still be covered by the current Public Procurement Directive 2004/18/EC, even if it is procured by awarding authorities in the field of defence and security.

The proposed Defence Procurement Directive – like the general Procurement Directive 2004/18/EC – wouldl apply subject to Article 296 of the Treaty establishing the European Community (TEC), which means that Member States can still exempt defence and security contracts if this is necessary for the protection of their essential security interests.

(For a discussion on secret contracts and security concerns evoked by Article 14 of the Procurement Directive, you can read the blog post EU Procurement Directive: Secret contracts and security measures, 13 January 2009. The Article 10 exclusion of defence contracts was discussed in the 3 January 2009 blog post EU Law: Defence procurement.)


The Commission’s proposal was accompanied by two Staff Working Documents. The first was an impact assessment. For the legally minded, the discussion about Article 296 TEC and Article 14 of the Procurement Directive is of interest. The 99 page impact assessment is available here:

http://ec.europa.eu/internal_market/publicprocurement/docs/defence/impact_assessment_en.pdf

The second Commission Staff Working Document was an interpretative communication on the application of Article 296 TEC and an impact assessment summary, Brussels, 7.12.2006 SEC(2006) 1555. It is available here:

http://ec.europa.eu/internal_market/publicprocurement/docs/defence/summary_en.pdf


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With the adoption of the new Defence Procurement Directive the European Union takes a step towards enhanced security for its citizens and better use of taxpayers’ money through at least some internal market benefits in the field of public contracts relating to defence and security.



This blog will return to the Defence Procurement Directive, but before that we are going to look at the contents of the other Directive, the one on defence equipment transfers within the European Union.


Ralf Grahn