“State of national security alert”: the door open to attacks on the probity of public decision-makers – L’Humanité

On May 19, the National Assembly adopted at first reading the bill updating the military programming law. The adopted project contains in its article 21 the creation of a new state of economic emergency: the “state of national security alert”.

Our organizations have already denounced the threat that this system poses to labor rights, the freedom to come and go, environmental protection and archaeological protection.

This system also poses a risk of favoritism, or even profiteering, by removing the contracts of the Ministry of the Armed Forces from the common law of public procurement.

Indeed, the future article L. 2143-3. – I. of the Defense Code provides that “during the state of national security alertâ€: 1° Defense or security contracts whose purpose is the provisioning and employment of armed forces, attached formations and Allied forces transiting the national territory are subject to Title II of Book V of the second part of the Public Procurement Code.

This provision thus makes it possible to deviate from the common European law of public procurement. From then on, and without any commitment ceiling, all contracts concluded for the operational preparation of forces (training and equipment) or for their employment (travel, logistics) could be concluded by mutual agreement and without competitive bidding.

This dangerous system for public funds would concern all contracts as soon as this state of alert is proclaimed, even locally.

The very duration of this state of exception was designed to be able to enter into such contracts. Thus the rapporteur of the Committee on Defense and Armed Forces declared during the debates on this duration of two months before referral to Parliament, that “we can clearly see that two months is the right gauge, as those who have experience can attest […] of drafting public contracts in an emergency. In addition, this state of exception produces effects for 4 months beyond the end of the state of emergency to finish negotiating contracts because “for defense and security markets, the phases of instruction, negotiation and verification of capacities are often very complex.

It is therefore a question of creating a 6-month window to conclude emergency contracts by ignoring all the rules of public procurement, in the name of “efficiency”.

However, if European Union law which, through the principle of primacy, prevails over national rules, has imposed a directive on public procurement, from which this state of exception intends to exempt itself, it is because the rules of transparency of procedures and competitive bidding are the best weapons against favoritism, clientelism and ultimately corruption.

Providing that contracts involving hundreds of millions of euros, or even billions, can be concluded without any rules of transparency and competition creates a fragility for our democracy and opens up opportunities that the profiteers and war profiteers will not let pass.

Our organizations therefore ask the government to withdraw this article 21 from the bill, which poses so many risks to our democracy, they call on parliamentarians to reject it and all members of civil society committed to the fight against corruption to mobilize.