The Constraints of Power Structures on EU Integration and Regulation of Military Procurement

Abstract

Ever since the Maastricht Treaty, the EU has been increasingly engaged in the military domain. More recently, many initiatives on intergovernmental EU cooperation have emerged in the area of Common Security and Defence Policy, such as those initiatives in the context of permanent structured cooperation (PESCO). At the same time, the Commission initiated policies and legislation on military industries based on the supranational regime of the internal market, such as the Defence Procurement Directive (DPD) which was adopted by the European Parliament and the Council in 2009. The EU Treaties, however, include a clear exception for military equipment and recognise national security as the sole responsibility of the Member States. The DPD aims to liberalise European armaments industries by imposing public procurement obligations on Member States for their military procurement. Such obligations, however, may conflict with the national security strategies of the Member States aimed at the survival of domestic industry. Consequently, Member States often still rely on the Treaty-based exception. This Article aims to provide a new legal approach to this conflict by, first, looking at the historic and legal context in which policies and legislation came about, secondly, determining the function of military procurement based on international relations theories and, thirdly, evaluating the internal market policies and legislation within this context. Finally, the author sets out a theoretical basis for legal interpretation of EU military procurement law. To overcome the conflict, the author argues for reconsideration of the internal market legal base of the military procurement regime and regulation of the legally controversial offset agreements.