“Summary results of the comparative survey on the transposition of Directive 2009/81”

1. “Summary results of the comparative survey on the transposition of Directive 2009/81” Col. Paolo LIZZA IT MoD SGD-DNA Rome, 12 july 2011”

2. Topics • The Defence Market in Europe: the Defence Package • EU Directive 2009/81 • Comparative Survey on the transposition of Directive 2009/81

3. The Defence Market in Europe: the Defence Package Commission Green Paper of on defence procurement (23-9-2004) Fragmentation along national lines Interpretative Communication of the Commission on art. 296 (7-12-2006) Directive 2009/81 Directive 2009/43 on intracommunity transfer of defence products

4. Directive 2009/81 • Related to the List of 1958 • Ad-hoc procedures for defence procurement (negotiated procedure) • Specific exclusions • Specific cases of negotiated procedure without publication • Security of supply as award criteria • Subcontracting obligation on Prime Contractors

5. Comparative Survey on the transposition of Directive 2009/81 • 1. National legislation adopted to transpose the directive • 2. Definitions Art. 1, par. 18 European public bodies • 3. Field of application • 3.1 Personal scope • 3.2 Material scope definition of each “field” • 4. Excluded contracts (section 3) • 4.1 transposition of all exclusions • 4.2 Art. 14 of Directive 2004/18 “Secret contracts and contracts requiring special security measures”art. 14 of Directive 2004/18/EC • 5. Security of information (art. 22)examples of the requirements • 6. Security of supply (art. 23) examples of the requirements • 7. Criteria for qualitative selection - Personal situation of the candidate or tenderer (art. 39, par. 2) transposition of all cases of exclusion provided by art. 39.2 • 8. Official lists of approved economic operators and certification by bodies established under public or private law (Article 46) • 9. Research and development use of the option of recital 55 • 10. Subcontracting (art. 21, title III, guidance note) • 11. Remedies Article 56

6. Comparative Survey on the transposition of Directive 2009/81 1. National legislation adopted to transpose the directive Subsumed into existing legislation (i.e. Code of Public Contracts) or stand-alone separate legislative act The majority of Member States (22 versus 4) will transpose Directive 2009/81 by means of a stand-alone separate legislative act 6

7. Comparative Survey on the transposition of Directive 2009/81 2. Definitions Art. 1, par. 18 While transposing Article 1, par. 18, do you intend to take into consideration the details provided in Recital 23 relating to European public Bodies ? 13 Member States will consider the details provided in recital 23 related to european public bodies in the transposition of the definition of “central purchasing body” 7

8. Comparative Survey on the transposition of Directive 2009/81 3. Field of application 3.1 Personal scope list of contracting authorities and contracting entities in the field of defence and security Contracting Authorities are Defence and Security governmental branches (Ministry of Defence, Interior, Justice, Finance, Security Agencies etc) Contracting Entities are Agencies in the field of transportation (ports and airports) water and electricity 3.2 Material scope is there a definition of each “field” (defence and/or security) of the scope of the directive Defence field (i.e. Did you choose to define “military equipment” using a list, as proposed by Recital 10 or only by transposing art.2, a)? Did you choose to define art. 2, d "works and services for specifically military purposes or sensitive works and sensitive services”?) Security field The majority of Member States (19 versus 7) will not reference any list No further definition has been included for works and security field (except ITA) 8

9. Comparative Survey on the transposition of Directive 2009/81 • 4. Excluded contracts (section 3) • 4.1 Do you intend to transpose all exclusions provided by the directive? • Positive answer by all Member States • 4.2 Art. 14 of Directive 2004/18 “Secret contracts and contracts requiring special security measures” • In the course of transposing Directive 2009/81/EC, do you intend to maintain the national rule which transposed art. 14 of Directive 2004/18/EC, or, in the light of the new discipline introduced by Directive 2009/81/EC (especially in compliance with art. 71), do you think to modify it or abrogate it? • The majority of Member States will keep the national rule transposing art. 14 of 2004/18 as-is • 5 Member States will harmonize with 2009/81 9

10. Comparative Survey on the transposition of Directive 2009/81 5. Security of information (art. 22) examples of the requirements that the contract documentation should contain The general approach is that the Contracting Authorities/Entities will have the authority to put forth requirements as stated in art. 22 Some Member States have referenced their national legislation on security clearances 10

11. Comparative Survey on the transposition of Directive 2009/81 6. Security of supply (art. 23) examples of the requirements that the contract documentation should contain. The general approach is that the Contracting Authorities/Entities will have the authority to put forth requirements as stated in art. 23. Some Member States have indicated export restrictions as a relevant requirement 11

12. Comparative Survey on the transposition of Directive 2009/81 7. Criteria for qualitative selection Personal situation of the candidate or tenderer (art. 39, par. 2)Indicate if you intend to transpose all cases of exclusion provided by art. 39.2 Most member States will transpose all cases of exclusion provided by art. 39.2 12

13. Comparative Survey on the transposition of Directive 2009/81 8. Official lists of approved economic operators and certification by bodies established under public or private law (Article 46) Indicate if you intend to transpose the provisions of art. 46 and how 7 member States will foresee official lists in the transposition of art. 46 13

14. Comparative Survey on the transposition of Directive 2009/81 9. Research and development use of the option of recital 55 (unique tender for the later phases if the contract which covers the research activities already includes an option for those phases and was awarded through a restricted procedure or a negotiated procedure with the publication of a contract notice, or, where applicable, a competitive dialogue.) 9 Member States have stated that the provision of Recital 55 will be implemented For many Member States the matter is under evaluation 14

15. Comparative Survey on the transposition of Directive 2009/81 10. Subcontracting (art. 21, title III, guidance note) Most Member States have transposed art. 21 including the 4 options, in order to allow the contracting authorities/entities to choose which to apply. 15

16. Comparative Survey on the transposition of Directive 2009/81 11. Remedies Article 56 Do you intend to adopt the rules provided by Directive 2007/66/EC regarding procuring authorities or those regarding procuring entities? Affirmative reply by all Member States Do you intend to transpose par. 10 (specific body with sole jurisdiction for the review of contracts in the fields of defence and security) No Member State will implement par. 10 Do you require in your national system that all persons in the judicial system who (potentially) might be involved in a remedy procedure in connection with a procurement procedure under Directive 2009/81/EC do actually need a security clearance? If not, which solution do you envisage in the course of transposing Directive 2009/81/EC? The general approach is that access to classified information will require a security clearance. 16

17. Q&A