The Russian invasion of Ukraine and the United Kingdom’s exit from the European Union have focused minds on the EU’s role as a defense actor. In the context of defense procurement, this includes whether the EU should itself co-fund cooperative programmes with Member States (through the European Defense Fund, for example, and Permanent Structured Cooperation (PESCO) initiatives among Member States), what can be commonly procured (and what cannot, e.g., due to prohibitions against offsets), and how (for example, under the competing constraints of Article 346 of the Treaty on Functioning of the European Union (TFEU) and the 2009 European Defense Directive). The United States faces the obvious dilemma of needing to be seen to encourage EU initiatives which, if successful, would reduce reliance on the United States within the North Atlantic Treaty Organization (NATO) while also securing U.S. industry’s continued access to the European defence market(s), for example through Foreign Military Sales (FMS) and under the reciprocal defense procurement agreements which open transatlantic defense markets. In the hope of advancing transatlantic cooperation in the broader procurement law community, this piece explores the latest EU initiatives in defense and security, with a particular emphasis on implications for the United States.
GW Paper Series
64 Government Contractor ¶ 332 (Thomson Reuters, Nov. 16, 2022)