National Models of Defence Procurement Regulation in the EU

1
National Models of Defence Procurement Regulation
in the EU

• Martin TRYBUS
• Professor of European Law and Policy
• Director, Institute of European Law
• Birmingham Law School

Seminar on European Defence Procurement,
Bucharest, 13-14 November 2007
2
France

• Traditional strategy of means.
• Since 1990s considerable reduction
• of the defence budget
• of the armed forces
• Defence industries considerable part of the
  defence industries are State-owned.
• Strong position of the DGA.

3
Defence Procurement France

• Defence procurement is regulated by an
  enforceable Act of Parliament, the Code des
  Marchés Publics.
• Negotiated procedure can be used in times of
  mobilisation and to protect a national defence
  industrial capability.
• Stringent enforcement system applies.

4
French defence procurement legislation

• Government Procurement Code
• Government Directive of Prices
• Books of General Administrative Clauses
• Books of Auditing Clauses
• General Clauses DGA
• Code of Administrative Tribunals and Appelate
  Administrative Courts

5
Germany

• No defence industrial policy and limitations of
  defence production.
• European champion of reduction of defence
  budget and armed forces.
• German defence industries.
• BWB.

6
Defence Procurement Germany

• Defence procurement is subject to a detailed code
  (VOL/A) , but the code is not enforceable (old
  German system still applies).
• No judicial remedies.
• Recently a discussion if administrative judicial
  review should apply.

7
United Kingdom

• Largest and most diverse defence industries in
  Europe.
• Budget cuts not as sever as in other Member
  States.
• Central role of the Defence Commercial
  Directorate.

8
Defence Commercial Directorate

• Strategic leadership across the full range of
  MOD acquisition, procurement and commercial
  activities.The new Directorate brings together
  existing organisations and was officially
  launched on 2/4/2007.The structure of the
  Defence Commercial Directorate isDirector
  General Acquisition Policy Directorate of
  Defence Acquisition Directorate of Defence
  Commercial PolicyDirectorate of Intellectual
  Property RightsDirectorate of Supplier
  RelationsPrivate Finance Unit

9
Defence Procurement UK

• Defence procurement is not regulated at all.
• Procurement is handled on a case-by-case basis.
• Principles of contracting.
• Defence procurement is a matter of policy rather
  than law.

10
Regulation of defence procurement?

• Option 1 exclude defence procurement from normal
  procurement regime (UK)
• Option 2 subject defence procurement to the
  normal regime (France)
• Option 3 draft a special regime for defence
  procurement separate from the normal regime
  accommodating the special characteristics

11
Conclusions

• Use of a regime other than
• Directive 2004/18/EC or
• the EDA Code of Conduct
• only in situations justified by Article 296 EC
  Treaty.
• Extreme cases purpose of regulation.
• French and German approaches based on an
  inaccurate interpretation of Article 296 EC.

12
Links

• http//www.defense.gouv.fr/dga/
• http//www.mod.uk/DefenceInternet/AboutDefence/Wha
  tWeDo/FinanceandProcurement/DCD/
• http//www.bwb.org/01DB022000000001/Docname/index.
  html