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Security of supply + security of information in Directive 2009/81/EC

Security of supply + security of information in Directive 2009/81/EC. Martin TRYBUS Birmingham Law School. Overview. Definitions Security of supply Security of information Adaptations Specifications Contract conditions Qualification Award criteria. Security of supply.

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Security of supply + security of information in Directive 2009/81/EC

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  1. Security of supply + security of information in Directive 2009/81/EC Martin TRYBUS Birmingham Law School

  2. Overview • Definitions • Security of supply • Security of information • Adaptations • Specifications • Contract conditions • Qualification • Award criteria

  3. Security of supply • Guidance Note on Security of Supply, at 1: • “[…] a guarantee of supply of goods and services sufficient for a Member State to discharge its defence and security commitments in accordance with its foreign and security policy requirements. This includes the ability of Member states to use their armed forceswith appropriate national control and, if necessary, without third party constraints.” • Origin: Letter of Intent Framework Agreement and Implementing Arrangement

  4. Security of information • Guidance Note on Security of Information, at 1 “The ability and reliability of economic operators to protect classified information … requirements are on-going during the life time of a contract and will be practically tested during contract execution.”

  5. Specifications • Security of information • Article 22: commitments to safeguard confidentiality • Whole life cycle of contract • Security clearance system: national • No mutual recognition (odd?) • Article 20: contract conditions • Security of supply • Article 23: commitment regarding export, transfer, transit of goods and services, location of supply chain, capacity for additional needs (problematic)

  6. Qualification: reliability: […]excluded[...] • Article 39 (d): … where that operator: • "[…] has been guilty of grave professional misconduct proven by any means which the contracting authority/entity can supply, such as a breach of obligations regarding security of information or security of supply during a previous contract […]“ • Article 39 (e): … where that operator: • "[…] has been found, on the basis of any means of evidence, including protected data sources, not to possess the reliability necessary to exclude risks to the security of the Member State.” • No unlimited discretion, Article 346 (1) (a) TFEU

  7. Qualification: technical capacity • Article 42 (1) (j): “contracts involving […] classified information, […] ability to process, store and transmit such information […]” • Article 42 (1) (h): “sources of supply, […] cope with any additionalneeds required by the contracting entity as a result of a crisis or carry out the maintenance, modernisation or adaptation of the supplies covered by the contract.”

  8. Award criteria • Probably security of information in EMAT context • Article 47 (1) (a): contracting authority may use the fulfillment of security of supply requirements as a criterion for the award of the contract • EVN Wienstrom: • “[…] the reliability of supplies can, in principle, number amongst the award criteria used to determine the most economically advantageous tender, […]” • Evans Medical: • “[…] reliability of supplies is one of the criteria which may be taken into account ... in order to determine the most economically advantageous tender.”

  9. Conclusions: security of supply • Potential threat to EDEM • Implementation is crucial: principles • Objectivity • Non-discrimination • Proportionality • National security of supply achievable? • Shrinking defence budgets • Increasing equipment costs

  10. Conclusions: security of supply+information • Stay clear?! • Best in contract conditions? • Include as early as possible, best in specifications, qualification better than award criteria? • Supply: European rather than national concept? Transatlantic …? • Information: towards mutual recognition? • Litigation?

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