Local view for "http://purl.org/linkedpolitics/eu/plenary/2006-01-17-Speech-2-257"
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"en.20060117.21.2-257"2
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".
The honourable Member’s question can be split into two parts. The first issue is whether the Commission intends to clarify further the criteria governing the use of Article 296 of the Treaty. The second, more specific issue is the Commission assessment on the rules to be applied to research, study and experiment contracts in the field of defence.
On the first issue, we recently outlined our proposals for future initiatives to improve cross-border competition in defence procurement. Our communication of 6 December announced the adoption in 2006 of an interpretative communication on Article 296 in the field of defence procurement and the start of preparatory work on a possible defence procurement directive. Those initiatives are based on the results of the consultation launched with the green paper of 2004. The contribution of Parliament to this debate, voted on 17 November, explicitly supports the Commission in its initiative.
The interpretative communication will give guidance on how to use Article 296 of the Treaty, which allows Member States a derogation from internal market rules and from Directive 2004/18 when their essential security interests are at stake. This provision has to be applied on a case-by-case basis and cannot be interpreted widely. It is for the Member State that seeks to rely on this provision to provide evidence that the derogation is justified and proportionate to the objective pursued.
A possible directive would coordinate procedures for defence procurement in cases where the derogation under Article 296 is not applicable or where a Member State chooses not to take advantage of it. It would provide new, more flexible procurement rules, better suited to the specific nature of the defence sector. The adoption by the Commission of a possible proposal for such a directive is subject to the results of the impact assessment which will be carried out in 2006.
The Commission is not in a position to give an assessment of the facts described by the honourable Member in the second part of the question. Article 296 of the Treaty has to be applied on a case-by-case basis and according to the specific circumstances of each case. However, the principles that should be taken into account when establishing the rules to apply can be briefly outlined.
On the one hand, it is worth noting that public procurement in the field of research, study and experiment benefits, under certain conditions, from specific derogations within the existing directive and within the Government Procurement Agreement of the World Trade Organization. Defence contracts of this kind can also benefit from derogations within the Code of Conduct set up by the European Defence Agency for the Article 296 area.
On the other hand, the question of government ownership of the share capital of potential contractors, and the consequences in terms of the rules to be applied, is not an issue to be addressed on the basis of Article 296: this is linked to the ‘in-house’ derogation, as established by the Court of Justice. However, according to this case law, the derogation only applies in cases of 100% ownership."@en1
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