EU Defense Procurement & Export Control Policies
EC Communication on Defense: On June 24, 2014 the EC published its Roadmap on the implementation of the initiatives announced at the December 2013 Council. A number of initiatives in the newly EU-regulated areas (such as defense procurement, offsets, security of supply), are complemented with the promotion of a more competitive industrial base. The EC also intends to address the access of European defense and security industries to third country markets. http://ec.europa.eu/enterprise/sectors/defence/defence-industrial-policy/index_en.htm
EC Communication on Export Control Policy April 2014: http://trade.ec.europa.eu/doclib/press/index.cfm?id=1063
Updated thresholds in the EU Defense Procurement Directive: the thresholds above which the EU Directive applies have been revised: €414 000 for supplies and services, and €5.18 million for works contracts.
Certification of Defense Companies: companies and production plants established in the EU who want to become an officially registered business to be allowed to receive defense items listed on the EU Military List under a transfer license from a supplier established in another Member State, need to be registered under the competent Export Control Authority of the EU member State where they are established. The below referenced EC website displays the companies that are certified according to EU Directive 2009/43 that regulates the transfer of defense items between EU Member States. This Database displays information about the companies that are officially recognized as being “Certified” under EU and national law. Certification is granted at national level and is meant to recognize the capacity of defense companies to receive military equipment with the obligation to respect all the conditions attached to the license for those products. Certificates are recognized by all EU Member States. You can see the list of certified companies here: http://ec.europa.eu/growth/tools-databases/certider/
Implementation of EU Directive 2009/81: All EU Member States transposed the EU Directive that regulates defense and sensitive security procurement. In the two years following the deadline for its implementation in September 2011, about 900 contracts have been awarded under Directive 2009/81, representing a total of €1.8 billion. Those contracts were published in TED, the official EU Public Procurement portal which covers all procurement announcements covered by EU legislation. http://ted.europa.eu/TED/main/HomePage.do
In 2016 the Defense Procurement Directive will undergo a scheduled regulatory review which is aimed at identifying gaps or inconsistencies during the transposition and/or implementation phase in the Member States.
The Interpretative Communication
The Interpretative Communication on the application of Article 296 of the Treaty in the field of defense procurement clarifies the conditions for the use of former Article 296, now Article 346 under the EU Treaty (TFEU), which allows Member States to derogate from Community rules if it is necessary for the protection of their essential security interests. Frequently Asked Questions.
The European Defense Agency
The European Defense Agency (EDA) was created in 2004 as an agency of the Council, and is pursuing four goals: develop European capabilities, promote armaments co-operation between Member States, promote defense research and technology, and develop the necessary tools to increase the competitiveness of the defense industrial base and market in the EU.
Regarding defense markets: the EDA promotes measures aimed at improving transparency and competitiveness in the European defense and technological industrial base (EDTIB). The EDA Procurement Gateway portal offers extensive information for suppliers and contracting authorities: http://www.eda.europa.eu/procurement-gateway
Where to Find Tenders for Defense Contracts in the EU: TED
Defense contracts covered under the Defense Procurement Directive 2009/81 are advertised in the EU Tenders Electronic Daily (the “TED” database) in the on-line EU Official Journal.
Export Control Policy Background
Traditionally the EU has exercised little influence over the control of exports of munitions and arms of the EU Member States: they were responsible for drafting and updating their own list of controlled arms and munitions, and for acting according to their national export control policy. However, for the past few years, a number of initiatives were introduced, aimed at enhancing cooperation among EU Member States, some of which are detailed below. Some initiatives were generated at the EU Council level, with policies that EU Member States have to apply without any EU-level enforcement mechanism (such as the “Common Positions” outlined below). On the legislative front, the European Commission is responsible for the legislation and policy concerning the export control of dual-use equipment. A major accomplishment is the generalization of the use of the EU “Common Military List”.
1. EU Code of Conduct on Arms Export Control
In 2008, the EU Member States adopted Common Position 2008/944 making the 1998 EU Code of Conduct on Arms Exports legally binding. Every request for an arms export license for an item referenced in the EU Common Military List has to be assessed according to the eight criteria outlined in the new Common Rules. The Common Position includes a mechanism among EU Member States to consult and inform each other about denials of arms export and brokering licenses. The Common Position only concerns exports of military items ‘outside’ the EU, and complements the EU Directive on Intra-EU Transfers of Defense Equipment and Technology, which regulates the transfers between EU Member States.
2. The Intra-EU Transfers Directive
The EU Directive 2009/43/EC on Intra-Community Transfers (“ICT”) of Defense Products outlines a set of laws with a twofold aim: first, reforming European licensing procedures for the transfer of defense articles within the EU, and second, introducing common criteria for the certification of recipients of defense transfers. The term “transfer” here relate to “exports between EU Member States”. The Directive applies to equipment listed on the EU Common Military List (2013) and is one part of the so-called “EC Defense Package” that also comprises the EU Directive on Defense Procurement, outlined above.
The objective of the Transfers Directive is to create an area where military goods and components can circulate more freely between EU Member States, on the basis of a harmonized European licensing system aimed at reducing the number of individual licenses to the benefit of the use of General and Global Licenses.
3. EU Regulation on Dual-Use Export Controls
The EU export control regime is governed by Regulation (EC) No 428/2009 , which provides for common EU control rules, a common EU control list and harmonized policies for implementation. Dual-Use goods and technologies are products and technologies which are normally used for civilian purposes but which may have military applications.
A review of Regulation 428/2009 is now on-going (based on the policy options outlined in the Commission Communication of April 2014) with possible amendments and changes to the text foreseen.
This DG Trade website offers more information on Dual-Use Technologies:http://ec.europa.eu/trade/import-and-export-rules/export-from-eu/dual-use-controls/index_en.htm
For additional questions, please send an email to the following address: Office.BrusselsEC@trade.gov and please reference "Defense Inquiry" in the subject line.
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