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KW Kancelaria Prawnicza Kruk i Wspólnicy Sp. k. 


Jarosław Kruk 



On February 25, 2013 the Armament Inspectorate announced a tender for the Advanced Jet Trainer (further Jet), in which he did not mention the offset obligation at all. Representatives of the Ministry of National Defense strongly argue that if procurement has been chosen, then offset is not valid at all. They add more informally that it would be difficult to defend a position that a trainer plane is related to the basic interest of the national security.

I believe that the Ministry of Defense is wrong. In a nutshell, the Act of 10 September 1999 stipulates that as of today the Offset Act has not been repealed. The Regulation of the Minister of National Defense dated December 13, 2007 “on the indication of weapons and military equipment” is effective, and the purchase of weapons and military equipment” imposes an obligation of an offset agreement conclusion, which, in turn, in the schedule, item 10.2 “expressly” states as others: aircraft and trainer aircraft. Additionally, item 14 of the schedule refers to “specialized equipment for military training or for simulation of military scenarios,” and simulators especially designed for training in the use of weapons.

Also Decision No. 6/MON of January 19, 2012 on drafting the indication of tasks of fundamental significance to the security and defense potential of the State is binding, where, in turn, in the schedule, item 7 “trainer aircraft AJT” (Advanced Jet Trainer) is entered. The above legislative acts were in force on the date of tender announcement. Additionally, since February 20, 2013 the Regulation of the Council of Ministers on the mode of procedure of the fundamental interest of State security assessment has been binding, issued on the basis of Article 4c of the Public Procurement Law. I bet that the Ministry of National Defense has carried out no analyses in that regard.

“Knowing the Ministry of National Defense,” the Ministry would explain this by the fact that the European Commission considers offset contrary to the rules of the Defense Directive, which does not mention offset at all, the Commission’s guidelines, etc. Another argument is also that Jet could not be considered as essential interest of the State. They’d better “do their homework” and amend regulations and decisions appropriately, and maybe repeal them too?

Legal consequences.

A contract of delivery may be declared null and void under Article. 58 § 1 of the Civil Code in connection with Art. 8 Section 12 of the Offset Act. The losers will be entitled to appear before a Polish court, and maybe even before arbitration tribunals, in accordance with agreements on the promotion and protection of investments binding Poland and the countries where individual manufacturers are based. By the way, this is a “dream” case for lawyers.

Criminal liability may also be the case. Our prosecution services frequently apply Article 231 of the Criminal Code, and their creativeness in this field goes to the extreme, especially when it comes to prosecuting people who are “on the bottom of the officials’ ladder”, or who are after the change of the ruling parties.

There is one more issue that relates to trust people have to those in power and the heads of the Ministry of National Defense – in particular. Maybe I’m old-fashioned, but I believe that trust is essential, especially when it comes to such great plans of modernization of the Armed Forces. Because how can you trust people who completely ignore their own words? The decision No. 6 was signed by the present Minister. A little more diligence in action would be necessary. If we don’t want offset, we need to say it directly and simultaneously prepare ourselves properly. The actions of the Ministry of National Defense irresistibly seem to prove that there will be few benefits from the modernization program of the Armed Forces for the Polish industry and economy, whereas, in fact, this is all about buying new cool “toys”.



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