Tag Archives: National implementing measure

Public procurement in the fields of defence and security

Public procurement in the fields of defence and security

Outline of the Community (European Union) legislation about Public procurement in the fields of defence and security

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Businesses in the internal market > Public procurement

Public procurement in the fields of defence and security

Document or Iniciative

Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (Text with EEA relevance). [See amending act(s)].

Summary

This Directive applies to public contracts in the fields of defence and security for:

  • the supply of military equipment;
  • the supply of sensitive equipment;
  • works, supplies and services directly related to military or sensitive equipment;
  • works and services for specifically military purposes or sensitive works and sensitive services.

Public procurement

Economic operators, whether they are natural or legal persons, can participate in invitations to tender in these fields. Groups of economic operators may also participate. If a contract is awarded to them, they may be required to assume a specific legal form.

Market thresholds and exclusions

This Directive shall apply to contracts which have a value excluding value-added tax (VAT) estimated to be no less than the following thresholds:

  • EUR 400,000 for supply and service contracts;
  • EUR 5,000,000 in the case of works contracts.

Exclusions

Certain specific contracts are excluded from the scope of this Directive, including:

  • contracts governed by specific procedural rules pursuant to an international agreement or arrangement between Member States and third countries and markets governed by the specific procedural rules of an international organisation purchasing for its purposes;
  • contracts for which the application of the rules of this Directive would oblige a Member State to supply certain information the disclosure of which it considers contrary to the essential interests of its security;
  • contracts awarded in the framework of a cooperation programme aimed at developing a new system;
  • contracts for the purposes of intelligence activities;
  • contracts awarded in a third country when forces are deployed outside the territory of the Union and transactions take place in the area of operations;
  • contracts relating to immovable property;
  • contracts awarded between governments.

Procedures

Contracting authorities/entities shall apply national procedures for the award of public contracts adjusted for the purposes of this Directive, by using the restricted procedure or the negotiated procedure with publication of a contract notice. An open procedure cannot be chosen.

Member States may use a competitive dialogue in the case of particularly complex contracts. In this case, contracting authorities/entities open a dialogue with the candidates selected in order to identify and define the means best suited to satisfying their needs.

There are also exceptional cases in which it is possible to use the negotiated procedure without publication of a contract notice.

The procedures are adjusted for the specific purposes of this Directive, in particular by proposing specific rules for the security of information, the security of supply and subcontracting.

The contracting authorities/entities may also conclude framework agreements, the duration of which may not exceed seven years. They must not, however, restrict competition.

Rules on advertising and transparency

Contracting authorities/entities may publish a prior information notice on their buyer profiles or on Tenders Electronic Daily (TED). They are obliged to publish a contract notice on TED with the sole exception of an exceptional negotiated procedure without publication of a contract notice.

In the case of restricted or negotiated procedures, contracting authorities/entities shall invite the selected candidates to submit their tenders and to negotiate. They shall also be invited to negotiate under the negotiated procedure. This invitation shall include contract documents, the deadline for receipt of tenders and an indication of any documents to be annexed.

For every contract or framework agreement, the contracting authorities/entities must draw up a written report describing the selection procedure chosen as well as information concerning the candidates.

Contract award criteria

Contracting authorities/entities shall award contracts on the basis of:

  • the most economically advantageous tender. Award shall then be based on various criteria linked to the subject-matter of the contract in question, such as quality, price or technical merit); or
  • the lowest price.

Subcontracting

Contracting authorities/entities may oblige the successful tenderer to organise a transparent and non-discriminatory competition when awarding subcontracts to third parties.

In addition, Member States may allow or require their contracting authorities/entities to ask that subcontracts representing at least a certain share of the value of the contract (a maximum of 30 %) be awarded to third parties following a transparent and non-discriminatory competition.

Review

A review of a decision taken by contracting authorities/entities may be sought in the event of an infringement of Community law. Member States must ensure that any operator that has suffered harm has access to effective and rapid rights to review. They may require that operators who wish to seek review either inform the contracting authority or first seek review from it.

During a review procedure, interim or final measures may be taken. In both cases, damages shall be granted to the persons concerned.

Context

The 2005 Green Paper on defence procurement highlighted the fact that it was essential to create a European market for defence equipment. This Directive should prove to be an appropriate legislative framework since it meets the specific requirements relating to goods and services in the fields of defence and security.

Reference

Act Entry into force Deadline for transposition in the Member States Official Journal

Directive 2009/81/EC

21.8.2009

21.8.2011

OJ L216, 20.8.2009

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 1177/2009

1.1.2010

OJ L 314, 1.12.2009

Regulation (EU) No 1251/2011

2.12.2011

OJ L 319, 2.12.2011

Successive amendments and corrections to Directive 2009/81/EC have been incorporated into the original text. This consolidated version is for reference only.

Strengthening cooperation with Switzerland, Norway and Iceland: the Lugano Convention

Strengthening cooperation with Switzerland, Norway and Iceland: the Lugano Convention

Outline of the Community (European Union) legislation about Strengthening cooperation with Switzerland, Norway and Iceland: the Lugano Convention

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

Strengthening cooperation with Switzerland, Norway and Iceland: the Lugano Convention (2007)

Document or Iniciative

Council Decision 2007/712/EC of 15 October 2007 on the signing, on behalf of the Community, of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Summary

The “new Lugano Convention” will apply to jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It will not apply to tax, customs and administrative matters or to the status and legal capacity of natural persons, rights in property arising from matrimonial relationships, wills and succession, bankruptcy or composition, social security or arbitration.

With this decision, the Council of the European Union (EU) authorises the President of the Council to designate the persons empowered to sign the convention on behalf of the Community. The text of the convention is attached to the decision.

Achieving a high level of circulation of judgments

The convention, signed on 30 October 2007 by the European Community, along with Denmark, Iceland, Norway and Switzerland, will come into force as soon as it is ratified by the signatories. It will replace the Lugano Convention of 16 September 1988. The contracting parties must deposit their instruments of ratification with the Swiss Federal Council, which will serve as depositary of the convention. Once it has come into force, the convention will be open to:

  • future members of the European Free Trade Association (EFTA);
  • Member States of the European Community acting on behalf of certain non-European territories that are part of their territory or for whose external relations they are responsible;
  • any other state, subject to the unanimous agreement of all the contracting parties.

Based on the rules applicable between EU Member States

The convention follows the present legal framework of the Community, namely the “Brussels I” regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters between Member States. The rules will therefore be similar in the EU and in Switzerland, Norway and Iceland. The convention will also facilitate the mutual recognition and enforcement of judgments handed down by the national courts of these countries.

The convention provides that, in general, persons domiciled in a state bound by the convention are sued in that state, whatever their nationality. However, it also provides for special rules of jurisdiction in certain matters, such as with regard to:

  • contracts: jurisdiction resides with the courts of the place of performance of the obligation;
  • maintenance: jurisdiction resides with the courts of the place where the maintenance creditor is domiciled or habitually resident;
  • tort, delict or quasi-delict: jurisdiction resides with the courts of the place where the harmful event occurred or may occur.

The convention also provides for specific jurisdictions in matters relating to insurance, consumer contracts and individual contracts of employment. Jurisdiction in matters relating to tenancies and real property rights resides exclusively with the courts of the contracting state in which the property is situated.

A number of protocols are annexed to the convention, among other things to ensure that it is interpreted as uniformly as possible.

Signing of the convention marks a major institutional development

The European Court of Justice confirms in its Opinion 1/03 that the European Community is exclusively competent to conclude the new Lugano Convention.

Signed on behalf of the Community on 30 October 2007, the convention is a key part of Community law. It runs for an unlimited period.

Council Decision 2009/430/EC of 27 November 2008 approved the conclusion of the convention on behalf of the Community. It also established the declarations to be made at the time of depositing the Community instrument of ratification (annexed to the decision).

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2007/712/EC

15.10.2007

OJ L 339 of 21.12.2007