19.06.2015 source SEDE
 

In its conclusions on the Common Security and Defence Policy, the December 2013 European Council stressed the importance of ensuring the full and correct implementation and application of the two defence Directives of 2009. The present study intends to provide the Parliament with an initial perspective regarding the state of implementation of the Directive 2009/81/EC on defence and security procurement (Part.1) and the Directive 2009/43/EC on intra-European Union transfers of defencerelated products (Part.2). It undertakes a first assessment of national practices, through qualitative and statistical analysis. It identifies the complex points and obstacles, which, if not overcome, may well call into question the Directives’ expected beneficial effects.

Executive summary

The directive 2009/81/EC on defence and security Procurement under scrutiny

In order to understand the evolution of Member States’ acquisition practices since the entry into force of the Directive, the first part of the study is structured around three main sections : (1) the situation before the Directive’s entry into force, an overview of the major principles introduced by the Directive and their implications for actors in the European defence sector, along with the process of transposition into national law; (2) An initial evaluation of national practices through qualitative analysis and statistical analysis (based on reprocessed data from the TED database, during the period from the 21st August 2011 to the 31st December 2014, covering all EU Member States) ; (3) An identification of the complex points and obstacles, which, if not overcome, may well call into question the Directives’ expected beneficial effects.

The Directive 2009/81/EC intends to provide procurement rules tailor-made for defence and security markets and is supposed to lead to more transparency and competition. Most importantly, it should limit the use of the exception clause of Article 346.

While the number of documents published on TED over these past two years has been increasing, this increase is not as significant as expected, and above all it is due to a small group of Member States (France, Germany, and the United Kingdom). This initial survey demonstrates an important disparity in the Member States’ publication practices (contract notices and contract awards). This poses the question of reciprocity. In value, contract awards notified between the 21st August 2011 and the 31st December 2014 represent around €10.53 billion. The year 2014 accounts for around 65% of the total, due to significant contracts notified by the United Kingdom in the field of services and facilities management, and by France on the segments covering Repair and maintenance services of military aircrafts.

The Directive 2009/81/EC is today favoured for contracts dealing with services, the acquisition of equipment deemed to be of a low strategic value, and sub-systems. Over the past three years, all of the major military equipment contracts, thus those that have had a structural effect on the DTIB, were notified without going via the Directive. Previous practices have continued, notably the use of Article 346.

When the contracting authorities/entities provide the name and address of the successful economic operators, in 84% of cases, the selected supplier is based on national territory. An analysis focused on the Member States that have published the most contract award notices (and if we consider non-specified addresses as national, as the European Commission does) demonstrates that the proportion of selected suppliers located on national territory reaches 98% for Germany, 97% for France, 96% for Italy, 96% for Poland, 92% for the United Kingdom, 90% for Romania, and 64% for Finland.

Concretely today acquisition practices seem to show an incomplete and incorrect application of the Directive, with de facto a limited or even non-existent impact on the DTIB. It is indeed too hasty and premature to draw conclusions from such a short period, all the more so given that it generally takes 5 to 10 years for a directive to be fully applied, and this is referring to the civilian sector. Although this new regime is not yet functioning satisfactorily at the present time, the Directive represents an important step in a sector such as defence, which is marked by a significant degree of opacity in acquisition practices.

The State of implementation of the Directive 2009/43/EC on Intra-EU transfers of defence- related products

In order to assess in details the current state of implementation o the Directive 2009/43/EC, the second part of the report proceeds in 3 steps and considers, first, the principles of the ICT Directive regarding the general licences, second, the state of the certification process and third the eventual impact of the Directive on the actors focusing specifically to topic of the end-use/end-user control.

The use of general licences appears to be quite limited considering its potential. This can be partially explained by the fact that the implementation of the new regulations is still in a transitional phase. However study reveals that the entire licensing process established by the EC suffers from major problems threatening the objective of simplification and harmonization. First, the report identifies a lack of availability of the relevant documents. Second, the general licences are too diversified in terms of scope and structure of the documents and conditions attached. Third Member states adopt different definitions of what sensitive products are, which is a corollary of the multiplicity of the defence-related product lists attached to the general licences.

To date, only 36 defence companies are registered on CERTIDER. The pace of certification is impacted by the relative complexity and diversity of the general licences, but there is obviously is some skepticism about the practical benefits of the enlisting process. It may not be considered worth the effort for the defence companies. The observation is even more valid for Small and Medium Enterprise.

Because of the slow pace on implementation of the Directive 2009/43/EC it is hazardous to analyze its effect on the European defence market. However, the actual trends allows the formulation of hypotheses notably on the eventual adaptation of the en use/end user control processes within the EU. States remain attached to their monitoring systems. It is an international or regional obligation for them but they also want to stay aware of any eventual re-export within the UE and of course, outside.

The benefits of the ICT Directive will not be felt similarly by all Member States, national authorities and defence companies. Their effects will certainly be different among Member States depending on the structure of their national defence sector and its reliance on exports. National factors and realities of the defence industry, as well as diverse perceptions of arms trade controls in Europe, can explain the current unequal level of implementation of the Directive and limit the overall benefits of the new regulatory system put in place by the Directive.

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