Is the US missile shield compatible with CE rules?

The installation of the anti-missile shield in Poland and the Czech Republic will give rise to multiple additional agreements. In addition to the purely political or military aspect, it is necessary, in fact, to fix the status of the personnel and the materials which come mainly from the USA (thus outside the EU), from a point of view of responsibilities but also social or fiscal. , it is the "SOFA" agreement that normally governs these types of questions. It is also necessary to provide for the methods of setting up the bases, in particular the ownership, their financing - and the contracts that this will generate... One can wonder whether this set of contracts, purely economic, is subject to a part to Community law, and on the other hand if he respects it.

Two points, in my opinion, can pose a problem, at least give rise to a questioning, with regard to Community law.

At the fiscal level. It is compliance with VAT rules (the only truly harmonized tax) that can pose a problem. We know that this question was one of the most difficult to resolve between Czechs and Americans (1). The 2006 directive (latest version in force) provides in article 151 for a global exemption (2) for all equipment of NATO member states "when these forces are assigned to the common defense effort". Maybe that's the problem. What is a "joint defense effort"? And to what extent does the anti-missile shield - an American project and not a NATO one - fulfill this condition? We can have a broad approach to exemption: "common effort", it is the effort of the two or three countries concerned. Or a strict approach: "joint effort" = effort that benefits everyone (within the framework of the Atlantic Alliance). In this case, the section 151 exemption does not apply. Note... that the usual rule, in terms of VAT exemption, is that any exemption is assessed "strictly" (3).

At the level of public procurement. As far as strictly military installations are concerned, there can be no doubt. Both with regard to current legislation on public procurement and even to that to come (reform of directives in progress), there is no application of Community rules. On the other hand, concerning all the installations around: construction of the base, supply of various equipment - which is not strictly military in itself - for example for the necessary arrangements (public works, roads, clearing...), the question remains posed. Should we respect the European rules of non-discrimination and transparency in public procurement, or even pass a European call for tenders in good form? Three additional facts attest to the relevance of this question, today more than yesterday: 1° the European Commission has begun a movement to liberalize military public procurement - not strictly strategic; 2° in a very recent example - for Eufor Tchad -, a European public contract was awarded for the supply of cement and concrete; we would not understand that a public contract should be concluded outside the EU and not inside; 3° the Czechs have set up a consortium of companies, Czech of course, which should benefit from the markets thus generated - which is already a form of discrimination for other companies.

I put the question to the European Commission. And the answers should be soon! So to be continued...

Two other questions can be raised:

- the use of European structural funds. Even if these will not directly finance military equipment, they will be able to be used for all other installations, access roads for example, the development of villages and towns around the base. The Czechs thus set up a plan of 37 million euros a year ago for Brdy - where the radar will be established - and the surrounding municipalities, with the establishment of a commission for the development of Brdy and the ministerial commitment (as evidenced by the minutes of the Czech Council of Ministers of September 5, 2007). As for the Poles, the city of Slupsk is fourteen special economic zones in the country - benefiting from special attention in terms of structural funds. This question only poses - in my view - a problem if the rules relating to the structural funds are not respected.

- the agreement of scientific and industrial cooperation signed by the Americans and which gives priority to Czech companies may also raise questions with regard to non-discrimination with other Europeans.

(1) The US Troop Protection Agreement Sofa is due August 28th.

(2) Article 151 Directive 2006/112 of November 28, 2006 : "1. The Member States shall exempt the following transactions: (...) (c) the supply of goods and the provision of services carried out in the Member States parties to the North Atlantic Treaty and intended for the armed forces of the other States parties to this treaty for the use of these forces or of the civilian element which accompanies them, or for the provisioning of their messes or canteens when these forces are assigned to the common defense effort;" (nb: point d) repeats the same provision when it comes to delivery in another Member State for the needs of a non-Member State). (...) 2. In cases where the goods are not dispatched or transported outside the Member State where the delivery of these goods is made, as well as for the supply of services, the benefit of the exemption may be granted under a VAT refund procedure."

(3) The case law of the Court is consistent on this point: see in particular judgments of 26 June 1990, Velker International Oil Company (C-185/89) or of 12 September 2000, Commission v United Kingdom (C-359/97 ) etc...