European Commission Requests Austria, Poland to Fully Transpose EU Rules in Defence Procurement

 June 4, 2012 (Released May 31, 2012) defpro.com

Brussels | Austria and Poland have been asked to notify to the European Commission within the next two months the measures they are taking to transpose EU rules on defence procurement (Directive 2009/81/EC). The Commission is concerned that they have failed to fulfil their commitments under the Directive regarding procurement of arms, munitions and war material (and related works and services) for defence purposes, and also the procurement of sensitive supplies, works and services for security purposes. If the Directive is not fully implemented in all Member States, companies and taxpayers alike cannot reap the benefits of easier access to a transparent and open – and hence more competitive - defence market.

These rules are tailored to the specificities of defence and security equipment and markets. The deadline for implementing the rules in question was 20 August 2011.

Austria has not yet transposed the Directive's provisions with regard to Carinthia, which means that the Directive's measures do not apply to its entire territory. As to Poland, it has not yet communicated any measures transposing the aforementioned Directive.

The Commission's request takes the form of a reasoned opinion. If the Austrian and Polish authorities do not notify the necessary implementing measures within two months, the Commission may refer the matter to the Court of Justice of the European Union and may request the Court to impose financial penalties.

BACKGROUND

The Directive introduces at European level:

• fair and transparent rules to help companies access defence and security markets in other EU countries;
• flexibility for contracting authorities to negotiate in detail all features of complex contracts;
• the option for contracting authorities to require safeguards (from suppliers) to ensure the protection of classified information against unauthorised access and security of supply so that armed forces receive deliveries in time, particularly in times of crisis or armed conflict.

It covers specific security and defence procurement contracts for:

• Military equipment* and related works and services
• Sensitive security equipment works and services which involve access to classified information.

Procurement of non-sensitive and non-military equipment, works and services by contracting authorities in the fields of defence and security is covered by the general public procurement Directive 2004/18/EC.

Both directives are subject to Article 346 of the Treaty, which means that EU countries can exempt defence and security contracts where the rules of Directive 2009/81/EC are not sufficient to safeguard their essential security interests.

ADDITIONAL RESOURCES

• More information:
http://ec.europa.eu/internal_market/company/simplification/index_en.htm
• Latest information on infringement proceedings concerning all Member States:
http://ec.europa.eu/community_law/index_en.htm
• For more information on infringement procedures, see MEMO/12/387 at http://goo.gl/MAEht

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* Arms, munitions and war material included in the 1958 list which defines the scope of Article 346 of the Treaty