1. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU 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. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU France l Traditional strategy of means. l Since 1990s: considerable reduction of the defence budget of the armed forces l Defence industries: considerable part of the defence industries are State-owned. l Strong position of the DGA.

3. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Defence Procurement: France l Defence procurement is regulated by an enforceable Act of Parliament, the Code des Marchés Publics. l Negotiated procedure can be used in times of mobilisation and to protect a national defence industrial capability. l Stringent enforcement system applies.

4. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU French defence procurement legislation l Government Procurement Code l Government Directive of Prices l Books of General Administrative Clauses l Books of Auditing Clauses l General Clauses DGA l Code of Administrative Tribunals and Appelate Administrative Courts

5. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Germany l No defence industrial policy and limitations of defence production. l European ‘champion’ of reduction of defence budget and armed forces. l German defence industries. l BWB.

6. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Defence Procurement: Germany l Defence procurement is subject to a detailed code (VOL/A), but the code is not enforceable (old German system still applies). l No judicial remedies. Recently a discussion if administrative judicial review should apply.

7. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU United Kingdom l Largest and most diverse defence industries in Europe. l Budget cuts not as sever as in other Member States. l Central role of the Defence Commercial Directorate.

8. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU 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 is: Director General Acquisition Policy Directorate of Defence Acquisition Directorate of Defence Commercial Policy Directorate of Intellectual Property Rights Directorate of Supplier Relations Private Finance Unit

9. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Defence Procurement: UK l Defence procurement is not regulated at all. l Procurement is handled on a case-by- case basis. l Principles of contracting. l Defence procurement is a matter of policy rather than law.

10. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Regulation of defence procurement? l Option 1: exclude defence procurement from normal procurement regime (UK) l Option 2: subject defence procurement to the normal regime (France) l Option 3: draft a special regime for defence procurement separate from the normal regime accommodating the special characteristics

11. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Conclusions l 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. l Extreme cases – purpose of regulation. l French and German approaches based on an inaccurate interpretation of Article 296 EC.

12. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Links l http://www.defense.gouv.fr/dga/ http://www.defense.gouv.fr/dga/ l http://www.mod.uk/DefenceInternet/A boutDefence/WhatWeDo/Financeand Procurement/DCD/ http://www.mod.uk/DefenceInternet/A boutDefence/WhatWeDo/Financeand Procurement/DCD/ l http://www.bwb.org/01DB0220000000 01/Docname/index.html http://www.bwb.org/01DB0220000000 01/Docname/index.html