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France

Legal basis

  • Crisis or armed conflict time

There are no specific regulations for defence orders in crisis situations.

  • Urgent reasons (i.e. operational reasons)

FR has regulations for urgent procurement necessary for operational reasons. Contracts may be negotiated without prior publicity and competition in case of great urgency resulting from circumstances which the contracting authority could not have foreseen. The FR principles are similar to those in 2004/18/CE directive or 2009/81/CE directive and are stated in Decree 2009-573 of May 20th, 2009.

  • Mergers-Acquisitions

There are no such laws or regulations specific to Defence. The only “decree” that exists refer to the control of foreign investments.

  • Foreign investments

Yes, the regulation (“decree”), that is applicable to foreign investment in France covers foreign investment that can jeopardize essential national security interests (in particular, for Security of Supply reasons). See the document “Main features of the French regulation related to foreign investment in sensitive industry” for details.

  • Export licenses

Regarding export licenses, France has a control in two phases for export of defense goods.

The first phase: granting of a preliminary approval which allows the exporters to negotiate and sign the contract.

The second phase: granting of a license which allows the equipment to be physically exported to the final customer.

The exporter requests systematically a non-transfer certificate to the final customer.

  • Codes/Regulations involving Defence Industry

Decree 2009-573 of May 20th, 2009 concerning some procurement signed for defense needs. (« concernant certains marchés publics passés pour les besoins de la défense »).
Decree 2005-1739 of December 30th, 2005 regulating the financial relations with the foreign countries (correction) (“réglementant les relations financières avec l’étranger”). Order of October 2nd, 1992 (modified) concerning procedure of import, export and transfer of defense goods, weapons and ammunitions and assimilated equipments (“relatif à la procédure d’importation, d’exportation et de transfert des matériels de guerre, armes et munitions et des matériels assimilés”).

  • Other?

Objectives of the national SoS policy

Our most important objective in the SoS field, is the long term SoS. Long term SoS is based on strong guaranties that any state would not oppose to a transfer of defence product or access to technologies, capabilities. Our will is also to assure the long term sustainability of this industrial capacity or technology (through life management), even though it is not located in France. The above objectives are not limited to the Prime contractors but we seek to extend these considerations through the entire supply chain.

The ICT directive, that facilitates export of some defence goods, is a first step in the good direction. To reach the goal of transnational long term SoS, a harmonised quality of control of the Foreign investment in the Defence Industry appears as a prerequisite. No member state will ever accept mutual dependencies if defence companies located in another Member States it relies upon are not adequately protected from foreign take over that could jeopardise its security of supply.

National bodies involved and areas of responsibilities

Prior to the award of a contract, any Contracting Authority has to check that bidders can deliver the goods and/or services in due time. Criteria for qualitative selection and award criteria are used. Article 23(c), 39(2)d, 42(1)h and 47(1)a in directive 2009/81/CE can be useful.

The role of SoS in Procurement procedures (requirements, evaluation etc.)

Contracts likely to be awarded under article 346, can be negotiated without prior publicity and competition if they only can be entrusted to a determined provider for motives bound to protection of intellectual property rights, to technical reasons, to important preliminary investments, to special installations, to security of supplies, to particular know-how or to the necessity of developing an innovative technology (Art. 2 II.f of Decree 2009-573 of May 20th, 2009).

Contractual terms on SoS

Our contract model for defence procurement does not include specific SoS terms. To take into account additional needs, for example those arising from crisis, an amendment may be negotiated. The amendment will cover the main contractor and its supply chain. If needed, additional contracts can be awarded. The need to secure delivery in due time is not limited to crisis/armed conflict time. SoS on mid/long term has to be considered. IPR clauses or clauses related to technical assistance can be useful in such a context. If a contractor fails to meet the delivery dates, for example in an urgent contract, contractual provisions related to liquidated damages are used. Articles 20 and 23(d) (f) (h) in directive 2009/81/CE can be useful.

National policy on sharing information on stocks/inventories

We practice it on a case by case basis. It is not a frequent practice, except for the cooperative programs.

Existing Bi/Multi-lateral SoS agreements

At present, FR does not have bi or multilateral Security of Supply agreements. FR and UK have been working on “Generic principles for British-French industrial and technological cooperation”. It addresses the following issues: how to reduce unnecessary duplication although ensuring the security of supply of each partner (i.e. how to preserve the operational sovereignty of Governments at the appropriate level)”.

SoS Experts contact info

Michel Reichardt
DGA/DS/SDCDE/BAE
Chargé d’Affaires
Telephone: + 33 1 46 19 88 55
Fax: +33 1 46 19 66 69
E-Mail: michel.reichardt@dga.defense.gouv.fr

SoS PoCs/National representatives contact info

Michel Reichardt
DGA/DS/SDCDE/BAE
chargé d’Affaires
Telephone: + 33 1 46 19 88 55
Fax: +33 1 46 19 66 69
E-Mail: michel.reichardt@dga.defense.gouv.fr

Link to related national websites

http://www.ixarm.com
http://www.legifrance.gouv.fr

Library

“Generic principles for European industrial and technological cooperation”.

“Main features of the French regulation related to foreign investment in sensitive industry”.

Generic principles for European industrial technological cooperation

The French regulation related to foreign investment in sensitive industry (main features)

 

Page Last Updated: Prior to September 2013

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