Specific objective and activities of a Structure for European Armament Programme
1. A Structure for European Armament Programme (SEAP) shall foster the competitiveness of the EDTIB and, where relevant, of the Ukrainian DTIB. That shall be achieved by aggregating the demand for, and ensuring the timely availability and supply of, defence products throughout their life cycle, as well as by stimulating cross-border industrial cooperation.
2. To reach the objective referred to in paragraph 1, the principal tasks of a SEAP shall be at least one of the following:
(a)
the common development of defence products and technologies, including defence research and development, testing and certification; industrial capacity-building, including through industrialisation and commercialisation; and support to non-recurrent investments related to initial production or in-service support, in particular where the defence products are being or have been developed in the framework of actions funded by the Union under the corresponding Union programme;
(b)
the common procurement of defence products and technologies, including for the purpose of establishing, managing or maintaining defence industrial readiness pools;
(c)
the common life cycle management of defence products, including the procurement of spare parts, logistic or maintenance services and, where appropriate, the establishment of public-private partnerships to ensure efficiency and high availability of defence products; or
(d)
the dynamic availability management of additional quantities, ensuring an immediate and preferential purchase, use or lease option for Member States, associated countries or Ukraine in the context of defence industrial readiness pools.
3. A SEAP may entrust, by way of a delegation agreement, one or more of the eligible entities referred to in Article 11(2) with carrying out one or more of the tasks referred to in paragraph 2 of this Article. The SEAP shall be responsible for ensuring that its obligations under Union law, and in particular under this Regulation, are met.
Requirements relating to the establishment of a SEAP
1. With a view to strengthening the competitiveness of the EDTIB or the Ukrainian DTIB, a SEAP shall meet all of the following requirements:
(a)
support cooperation until the end of the life cycle of a defence product or until the winding-up of the SEAP;
(b)
support the common development, procurement or in-service support of defence products, consistent with the defence capability priorities commonly agreed by Member States within the framework of the CFSP, in particular in the context of the CDP;
(c)
take into account the relevant activities carried out by NATO, such as the NATO Defence Planning Process, where such activities serve the security and defence interests of the Union; and
(d)
have at least three members, of which at least two are Member States.
2. A SEAP shall use standardised procedures for initiating and managing cooperative armament programmes. The Commission, taking into account the views expressed by Member States, may establish guidance or templates for those procedures, including guidelines on project management, procurement, financial management and reporting.
Applications for the establishment of a SEAP
1. Applications for the establishment of a SEAP shall be submitted to the Commission. The application shall contain the following:
(a)
a request to the Commission to establish the SEAP;
(b)
the proposed statutes of the SEAP referred to in Article 45, signed and adopted in due form by all the members of the proposed SEAP;
(c)
an outline description of the defence products to be developed, procured or managed by the SEAP, addressing in particular the requirements set out in Article 41(1), points (a) and (b);
(d)
a declaration by the Member State on the territory of which the SEAP is foreseen to have its statutory seat, recognising the SEAP as an international body within the meaning of Article 143(1), point (g), and Article 151(1), point (b), of Directive 2006/112/EC and as an international organisation within the meaning of Article 11(1) of Directive (EU) 2020/262, as of its establishment;
(e)
where an associated country or Ukraine is to be a member of the SEAP, a declaration of the recognition of the most extensive legal capacity of the SEAP in accordance with Article 44(2).
For the purposes of point (d) of the first subparagraph of this paragraph, the limits and conditions of the exemptions provided for in Article 143(1), point (g), and Article 151(1), point (b), of Directive 2006/112/EC and in Article 11(2) of Directive (EU) 2020/262 shall be laid down in an agreement between the members of the SEAP.
2. The Commission shall, without undue delay after receipt of the complete application as referred to in paragraph 1, assess that application in accordance with the requirements laid down in this Regulation and may, for that purpose, invite the EDA to provide its expertise. The result of that assessment shall be communicated to the applicants who shall, if necessary, be invited to complete or amend the application.
3. The Commission, by means of an implementing act taking into account the results of the assessment referred to in paragraph 2, shall:
(a)
establish the SEAP after it has concluded that the requirements laid down in this Regulation are met; or
(b)
reject the application if it concludes that the requirements laid down in this Regulation are not met, including in the absence of the declaration referred to in paragraph 1, point (d), after providing an opportunity to the applicants to complete or amend the application.
4. The decision on the application shall be notified to the applicants. In the case of a rejection, the decision shall be explained in clear and precise terms to the applicants.
5. The implementing act establishing the SEAP referred to in paragraph 3, point (a), of this Article shall be adopted in accordance with the examination procedure referred to in Article 77(4) and shall be published in the Official Journal of the European Union .
Status and seat of a SEAP
1. A SEAP shall have legal personality as from the date on which the implementing act establishing it takes effect.
2. A SEAP shall have in each Member State the most extensive legal capacity accorded to legal entities under the law of that Member State, in particular the capacity to acquire, own and dispose of movable property, immovable property and intellectual property, conclude contracts and be a party to legal proceedings. All Member State national funding agencies shall consider a SEAP an eligible recipient of national financial contributions.
3. A SEAP shall have a statutory seat, which shall be located on the territory of a Member State.
Requirements for membership of a SEAP
1. The following countries may be members of a SEAP:
(a)
Member States;
(b)
associated countries;
(c)
Ukraine.
2. Associated countries or Ukraine may be members of a SEAP subject to their recognition, for the benefit of the SEAP, of the most extensive legal capacity accorded to legal entities under the law of that country, including for the purposes of concluding contracts and being a party to legal proceedings.
3. Member States, associated countries or Ukraine may join as members of a SEAP at any time after that SEAP’s establishment, on fair and reasonable terms specified in the statutes referred to in Article 45, or as observers without voting rights on conditions specified in those statutes.
4. A SEAP may also cooperate with a non-associated third country other than Ukraine or another third-country entity, including by using the assets, infrastructure, facilities and resources of such legal entities, provided that such cooperation does not contravene the security and defence interests of the Union and its Member States, including the respect of the principle of good neighbourly relations.
Statutes of a SEAP
1. The statutes of a SEAP shall contain at least the following:
(a)
a list of members of the SEAP, observers and, where applicable, legal entities representing members, and the conditions of, and the procedure for changes in, membership and representation in compliance with Article 44;
(b)
the specific objectives, tasks and activities of the SEAP, in compliance with Articles 40 and 41, including an outline description of the defence products to be developed, procured or managed by the SEAP;
(c)
a list of the defence products which are to be owned by the SEAP, if any, and which are eligible for an exemption from VAT or excise duties;
(d)
the statutory seat of the SEAP in compliance with Article 43(3);
(e)
the identification of the national law of the Member State that determines the competent jurisdiction for the resolution of disputes among SEAP members in relation to the SEAP, between SEAP members and the SEAP, and between a SEAP and third parties, in compliance with Article 49(2);
(f)
the name of the SEAP;
(g)
the duration and the procedure for the winding-up of the SEAP in compliance with Article 50;
(h)
a description of the main criteria that the SEAP is to apply when procuring defence products to ensure compliance with the objective set out in Article 40(1);
(i)
the liability regime, including the possibility to issue securities, if so decided, in compliance with Article 48;
(j)
the rights and obligations of the members of the SEAP, including the obligation to make contributions to a balanced budget and voting rights;
(k)
the governing bodies of the SEAP, their roles and responsibilities and the manner in which they are constituted, and the decision-making process within the SEAP, including the applicable voting rules, in particular on the amendment of the statutes in compliance with Article 46;
(l)
the identification of the working language or languages of the SEAP;
(m)
references to the rules implementing the statutes of the SEAP;
(n)
rules on the protection of classified information;
(o)
the identification of the Union and national rules applicable to the handling of the defence products to be developed, procured or managed by the SEAP, and the administrative capacities foreseen to ensure compliance with those rules.
For the purposes of point (k) of the first subparagraph of this paragraph, the voting rules applicable to amendments relating to the approach to the export of defence products, if included in the statutes, and to the financial liability regime shall comply with paragraph 4 of this Article and Article 48(5) respectively.
2. Where the members of a SEAP decide to establish a defence industrial readiness pool, the statutes shall include the rules governing the management of that defence industrial readiness pool.
3. The statutes, signed and adopted unanimously by all the members of a SEAP in accordance with Article 42(1), point (b), may contain an approach to the export of defence products.
4. Any change to the approach to the export of defence products referred to in paragraph 3 shall be decided unanimously by the members of a SEAP.
Amendment of the statutes of a SEAP
1. Any amendment of the statutes of a SEAP concerning the matters referred to in Article 45(1), points (a) to (k), shall be adopted in accordance with the voting rules specified in the statutes in compliance with Article 45(1), point (k), and be submitted to the Commission by the SEAP for approval.
2. Any amendment of the statutes concerning the matters referred to in Article 45(3) shall be adopted in accordance with the voting rules specified in the statutes in compliance with Article 45(1), point (k), and be notified to the Commission by the SEAP within 10 days of the date of its adoption.
3. Any amendment of the statutes other than that referred to in paragraphs 1 and 2 of this Article shall be adopted in accordance with the voting rules specified in the statutes in compliance with Article 45(1), point (k), and shall be submitted to the Commission by the SEAP within 10 days of the date of its adoption.
4. The Commission may raise an objection to an amendment of the statutes as referred to in paragraph 3 within 30 days of the date of its submission, giving reasons why the amendment does not meet the requirements of this Regulation.
5. An amendment of the statutes as referred to in paragraph 3 shall not take effect before the period for raising an objection referred to in paragraph 4 has expired or been waived by the Commission or before an objection raised has been withdrawn.
6. An application for the amendment of the statutes as referred to in paragraphs 1, 2 and 3 shall contain the following:
(a)
the text of the amendment proposed or, where applicable, the text of the amendment as adopted; and
(b)
the amended consolidated version of the statutes.
Specific conditions on procurement
1. In accordance with Article 40(3), a SEAP may entrust an eligible entity referred to in Article 11(2) with carrying out procurement actions. Such an entity shall act in the name of, or on behalf of, that SEAP.
2. For the purposes of procurement of defence products, SEAPs shall be considered as international organisations within the meaning of Article 12, point (c), of Directive 2009/81/EC. SEAPs shall define their own procurement rules in compliance with the principles governing public procurement, in particular those of non-discrimination, equal treatment, proportionality and transparency.
3. When procuring defence products, a SEAP shall apply to its procurement procedures and contracts criteria ensuring that its procurement policy complies with the objectives referred to in Article 40(1). A SEAP shall actively seek to include multiple legal entities from various Member States in the supply chains of defence products.
4. Where a delegation agreement as referred to in Article 40(3) is concluded, the parties to that agreement may decide that the procurement rules of the entity carrying out the procurement apply, provided that those rules comply with the principles referred to in paragraph 2 of this Article, in particular those of non-discrimination, equal treatment, proportionality and transparency.
5. Where Member States or, where applicable, associated countries purchase defence products from a SEAP, including from a defence industrial readiness pool, that procurement shall be considered as a contract awarded by a government to another government as referred to in Article 13, point (f), of Directive 2009/81/EC.
Liability and insurance
1. A SEAP shall be liable for its debts.
2. The financial liability of the members of a SEAP for the debts of the SEAP shall be limited to their respective contributions to the SEAP. The members may specify in the statutes of a SEAP that they will assume a fixed liability above their respective contributions or will assume unlimited liability.
3. If the financial liability of its members is limited, the SEAP shall take appropriate insurance to cover the risks specific to the establishment and management of the capability of the SEAP.
4. If decided unanimously by its members, a SEAP may issue securities in accordance with the law of the Member State on the territory of which it has its statutory seat. The SEAP shall be liable for such securities.
5. Any change to the liability regime or any measure affecting the financial liability of the members of a SEAP shall be decided unanimously by those members.
6. The Union shall not be liable for any debt of a SEAP.
Applicable law and jurisdiction
1. The establishment and internal functioning of a SEAP shall be governed:
(a)
by Union law, in particular this Regulation and the implementing act referred to in Article 42(3), point (a);
(b)
by its statutes and their implementing rules;
(c)
by the law of the Member State on the territory of which the SEAP has its statutory seat in relation to matters not, or only partly, regulated by the acts referred to in points (a) and (b).
2. Without prejudice to cases in which the Court of Justice of the European Union has jurisdiction under the Treaties, the national law of the Member State on the territory of which the SEAP has its statutory seat shall determine the competent jurisdiction for the resolution of disputes among SEAP members in relation to the SEAP, between SEAP members and the SEAP, and between a SEAP and third parties.
3. Delegation agreements as referred to in Article 40(3) shall determine which Member State jurisdiction is competent for the resolution of disputes related to the delegation agreement concerned. Delegation agreements may also provide for amicable dispute settlement mechanisms. This shall be without prejudice to cases in which the Court of Justice of the European Union has jurisdiction under the Treaties.
Winding up and insolvency
1. The statutes of a SEAP shall determine the procedure to be applied in the event of winding-up of the SEAP following a decision of the assembly of its members or, in the event that the Commission repeals the implementing act establishing the SEAP, as referred to in Article 51(7). Winding-up may include the transfer of activities and of the ownership of defence products to another legal entity.
2. Without undue delay after the adoption of a decision by the assembly of its members to wind up the SEAP, and in any event within 10 days of such adoption, the SEAP shall notify the Commission thereof and designate a representative for the winding-up. The Commission shall publish an appropriate notice of the decision to wind up in the Official Journal of the European Union .
3. The winding-up procedure shall not be closed before the completion of the transfer of ownership of defence products owned by the SEAP.
4. Without undue delay after the closure of the winding-up procedure, and in any event within 10 days of such closure, the SEAP representative shall notify the Commission thereof. The Commission shall publish an appropriate notice of the closure in the Official Journal of the European Union . The SEAP shall cease to exist on the date of publication of that notice.
5. In the event that the SEAP is unable to pay its debts, it shall immediately notify the Commission thereof. The Commission shall publish an appropriate notice in the Official Journal of the European Union .
Reporting and control
1. A SEAP shall produce an annual activity report, containing a technical description and a financial report of its activities referred to in Article 40. It shall be transmitted to the Commission within six months of the end of the financial year. The Commission shall distribute the report to all Member States.
2. The Commission shall provide the European Parliament and the Council with an aggregated annual report on the activities of all active SEAPs.
3. The Commission may provide recommendations to a SEAP regarding the matters covered in the annual activity report referred to in paragraph 1.
4. A SEAP and the Member States concerned shall inform the Commission of any circumstances which threaten to seriously jeopardise the achievement of the task of the SEAP or to hinder the SEAP from fulfilling the requirements laid down in this Regulation.
5. Where the Commission obtains indications that a SEAP is acting in serious breach of this Regulation, the implementing act establishing it, its statutes or other applicable law, it shall request explanations from the SEAP or its members.
6. Where the Commission concludes, after having given the SEAP or its members at least two months to provide their observations, that the SEAP is acting in serious breach of this Regulation, the implementing act establishing it, its statutes or other applicable law, it may propose remedial action to the SEAP and its members.
7. Where no remedial action as referred to in paragraph 6 of this Article is taken, the Commission may repeal the implementing act establishing the SEAP. The repealing act shall be published in the Official Journal of the European Union . The publication of the repealing act shall trigger the winding-up of the SEAP as referred to in Article 50.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
