Drone market at Dassault. A beautiful loop over Europe

(BRUSSELS2) Is the government's awarding of a first contract for new generation drones to Dassault (the "Frenchified" Israeli Héron drone *) completely in line with European public procurement law? Asking the question might have seemed outdated a few years ago; today it is fully current. And the question will have to be asked for all defense and security markets. One element is striking in any case: the lack of information publicly available on the nature of the contract signed, and the reasons that justify not respecting the public or restricted tendering procedure.

I asked the DGA the question: I only got a fairly hasty response, referring to the press release and the decision of the Ministerial Investment Committee of July 20. Perhaps the experts from the General Delegation for Armaments will be more talkative - during the summer university in Rennes, where they are the guests of honor. I'm really not sure. 🙂 Because there are many possible questions about the awarding of this market to one manufacturer (Dassault) rather than another (EADS). A few things to think about...

The principle and its exceptions

Not all contracts are subject to the European directive on public defense contracts. Far from it. The European directive of July 2009 (now transposed in France by the law of June 22, 2011) provided for several exceptions. Some are linked to the format of the contract which obeys other international rules: under an agreement with at least one third State, for the stationing of troops abroad, or within the framework of the missions of an international organization (section 12). Others are linked to the subject of the contract (Articles 13). Three of them - set out in articles 13a, 13b, 13c - could a priori apply to the "Dassault" market. The others (financial market, real estate, government-to-government purchases, etc.) do not seem immediately applicable.

• (a) disclosure contrary to its essential security interests;
• b) intelligence activities: a fair bit as justification;
• (c) cooperative program based on research and development activities, carried out jointly by at least two Member States with a view to developing a new product and, where appropriate, in the subsequent phases of all or part of the life cycle of this product.

Exception 13b seems a bit tight to justify overriding European rules. The market does not meet all the criteria of exception 13c either, which would rather be intended to cover the future Franco-British Male drone project. This leaves exception 13a.

The confidentiality exception General

This provision is, in fact, the concrete transcription of the general exception laid down in the Treaty in Article 346 which specifies that a Member State may not " be obliged to provide information the disclosure of which he considers contrary to the essential interests of his security ". As stated in one of the recitals of the directive, " some markets are so sensitive that it would be inappropriate to apply this directive, despite its specificity”.

A list of markets is given as follows: border protection or the fight against terrorism or organized crime, encryption or covert activities or other equally sensitive activities carried out by the police or security forces”. In its guidelines, the European Commission specified that this list was not exhaustive but only " indicative ". Building a drone can fulfill these criteria. But it all depends on its actual use. As the Commission continues, this list indicates that the exception of Article 13a was mainly introduced to cover "non-military security" contracts. A priori, the construction of the drone would therefore not automatically fall into this category.

Compliance with certain principles is mandatory... in all cases

In any case - and in general - any exception must be interpreted and applied in a restrictive manner. Article 11 (called: "use of exclusions) specifies this very clearly in case we have forgotten: " None of the rules, procedures, programmes, agreements, provisions or contracts referred to in this section may be used for the purpose of circumventing the provisions of this directive. » And it is up to the contractor to provide proof that he fulfills the conditions.

In the particular case, this exception must obey the principle of proportionality. In other words, the question must be asked whether, in order to preserve the principle of confidentiality, other equally effective measures, while respecting the principle of calls for tenders.

Finally, even if a public contracting authority fulfills all the criteria for not applying the public procurement directive, it must - according to the case law enshrined by the Court of Justice of the EU apply the principle of non-discrimination and transparency (* *).

It is clear today that the decision of the ministerial investment committee of July 20 "to enter(r) into negotiations with the company Dassault Aviation with a view to supplying a new MALE (medium altitude-long endurance) drone system to the French armies, in 2014” does not appear to meet all the criteria required by the directive on public defense contracts, if not in its letter at least in its spirit.

Read also: The applicable Defense Procurement Directive: what consequences (Update)

(*) “During the Ministerial Investment Committee (CMI) on July 20, 2011, Gérard Longuet Minister of Defense and Veterans Affairs announced the start of negotiations with Dassault Aviation to supply a new MALE drone system. This acquisition is intended to replace the drone system currently used by the Air Force (the Harfang system) pending the entry into service, by 2020, of a new generation of devices, developed in the framework of the Franco-British cooperation agreement of November 2010.

 

(**) “ The contracting entities concluding them are, however, required to respect the fundamental rules of the Treaty in general and the principle of non-discrimination on grounds of nationality in particular. "" The obligation of transparency incumbent on the contracting authority consists in guaranteeing, for the benefit of any potential tenderer, an adequate degree of publicity allowing the opening of the services market to competition as well as the control of the impartiality of the award procedures. (cf. in particular Telaustria judgment, 7 December 2000)