Belgium

Researcher4165: The DoD routinely engages in asset disposal. This equipment is extremely varied, ranging from socks to weapon systems.

Small equipment is sold by DGMR, Procurement Division, Sales Department, which is responsible for sale, destruction or scrapping of all equipment withdrawn from active service in the DoD, except real estate.

There are six types of sales:

1. Cash & Carry Sales (Public sales of military equipment by direct auction) They are open to all.
2. Public sales (with publication in the BDA), Opened to all (subject to selection according to the specificity of the equipment), with an offer under envelope.
3. Sales to Municipalities, Provinces and CPAS, which can acquire equipment at their request.
4. Sales to youth movements (Sales at fixed price and limited quantities per item for sale)
5. Public relations (Sales of small military equipments taking place during festivities organized by DoD (Sales at fixed price and limited quantities per item for sale)
6. Sales of weapon systems (traded from state to state, negotiated with the candidates kept by the Administration (the only firms holding the required licenses)

For public sales, the BDA constitutes the only official publication channel. Since January 1st, 2011, the BDA is fully integrated into applications to be consulted via the Website of the public procurement.
The financial results of the different sales are published. The control of both &quoute;downgrading&quoute; of assets as the later &quoute;disposal&quoute; is strictly determined by law in Belgium. The existing international and national regulations are also further interpreted in internal regulations, procedures, and detailed instructions. During the process maximum publicity, openness and transparency is fully assured. The procedures of public procurement are fully applied and are controlled by the appropriate institutions, such as the CC, CAAF, IF and IAD.

Planned disposals are known in advance and published publicly in the PIDS.

La Libre Belgique however reported in 2013 that there had been shortcomings in scrutiny mechanisms between 2009 and 2012, with 35 helicopters being sold to a company whose director was under investigation for corruption affairs which indicates issues in the controls.

Researcher4165: Within the DoD, the entire process of disposal strictly follows national and international laws and regulations. Regulatory controls are regularly performed by international authorities, as well as by national agencies. The disposal of assets are scrutinised by the CC, CAAF, IF, IAD, as well as the EU, NATO and OSCE. The new agency, Benelux Arms Control Agency, will also play a role once it will be entirely operational.

All reports are available to the public. Sales reports are published through the yearly DoD Financial Statements, upon approval of Parliament.

The recent audit performed by CC in its 169th Report on the management of ammunition including surplus ammunition is a good and specific example.

La Libre Belgique however reported in 2013 that there had been shortcomings regarding the scrutiny mechanisms between 2009 and 2012, with 35 helicopters being sold to a company whose director was under investigation for corruption affairs.

Researcher4165: Recurrent examination of the Defence budgetary documents shows that no more than 0.5% of the MoD budget expenditure is dedicated to secret items.

Researcher4165: Together with the president of Comité R, the MoD is responsible for providing yearly (or when asked by the defence Committee or Parliament) information on all spending on secret items, with the exception of some particular items. In these cases, additional detailed description is given upon request or on a need-to-know basis.

It should be noted that as of July 31, 2014, members of Parliament who are part of the Parliamentary Committee will finally have access to secret data of the Sûreté de l’État and of SGRS. They will now get a security clearance, which means that they have to submit a genuine screening by the competent service.

Researcher4165: Members of the Parliamentary commission were granted official access to secret data of the Sûreté de l’État and of SGRS only in July 2014.

During the preparatory phase, the defence budget, with all its subdivisions - including military R&D, training, construction, personnel expenditures, acquisitions, disposal of assets, and maintenance -, is proposed in extenso, defended and amended where appropriate at the parliament, before being voted on.

The media however have reported in January 2015 that there is a lack of transparency in terms of the secret services budgets and frameworks and denounced the budget cuts that limit efficiency.

Researcher4165: All defence expenditure is recorded in the official defence budget.

There is however one exception: when expenditures are made on behalf of partner countries or international organisations (UN, NATO or EU). In this case they are not recorded in the defence budget, but they are indicated in the reports on the expenditure and revenue figures corresponding to the missions in question.

Researcher4165: Expenditures made on behalf of partner countries or international organisations (UN, NATO or EU) are not recorded in the defence budget.

They are however mentioned in the reports on the expenditure and revenue figures corresponding to the missions in question, under the denomination &quoute;expenses for third parties&quoute;.

Researcher4165: Article 32 of the Belgian Constitution specifies that 'everyone has the right to consult any administrative document and to have a copy made'. However, there are exceptions at each level. In 2007, the Court of Brussels ruled that restricting access on information related to weapons deliveries, as had been done by the federal Ministers for Foreign Affairs, Agriculture and Economy, was wrongful. However, there were concerns about the weakening of access to information with the introduction of a new BIM law in 2010.

In terms of security clearances, these are regulated by law (Law of December 11, 1998, Chapter II) and therefore effectively subject to Parliamentary scrutiny. Following an investigation, the Security authority (SGRS or State Security) may revoke a security clearance based on information submitted to it by the intelligence and security services.

The notification of a refusal to withdraw a security clearance includes the reasons for the decision, with the exception of any information the disclosure of which would be likely to prejudice the defence of the integrity the country, the military defence plans to implement the tasks of the armed forces, the internal security of the State, including in the field of nuclear energy, the sustainability of the democratic and constitutional order, the external security of the State and international relations, scientific or economic potential of the country or any other fundamental interests of the State, security of Belgian nationals abroad, operation decision-making bodies of the State, the protection of sources or the protection of the privacy of third parties.

The confidentiality of the investigation reports must be ensured.

As with all administrative decisions, the prejudiced may introduce recourse to the ConsEtat.

Researcher4165: The DoD does not own any commercial business. All the interviewees confirmed this, and there is no public evidence to the contrary available.

The assessor could not establish whether defence and security institutions are removed from such ownership by law.

As regards to government inspection of corporate trade practices and financial accounting in Belgium, this falls under the Federal Tax Inspection Services and the General Board for Economic Inspection of the Federal Public Service of Economy.

Researcher4165: The DoD does not own any commercial business, according to army officials and a senior civil servant.

There is no public evidence to the contrary either.

Researcher4165: The law referenced prohibits the military and civilians employed by the army to have other professional activities, except with the express authorization of the Minister. It is therefore not possible to have unauthorised private commercial or other activities.

There is no evidence of unauthorised private enterprise, nor through media reports for example.

Researcher4165: Following corruption cases within the army, the corresponding prosecutions and sentences, the DoD, CHOD, all Component Commandants and senior army officers appeared to commit strongly to fighting corruption and other illegal behaviour.

There is however no public evidence available that this is reflected throughout the defence ministry and armed forces by similar commitments from senior ministry staff and senior armed forces officers.

In 2013, the Ministry of Defence also publicly committed to tackle corruption within the army and to promote better transparency.

Researcher4165: In 2012, a large-scale trial opened before the Criminal Court of Brussels. It involved a large case of false invoices and bribes paid by contractors amounting to more than 15 million Euros to military officials. 31 people, mostly servicemen, had charged these expenses as DoD purchases between 1996 and 2005. Complicit civilian providers distributed bribes in money or equipment in order to obtain contracts and/or to cause unnecessary expenses. The fraud related to minor equipment.
On appeal, the two officers considered to be the instigators of fraud and embezzlement were sentenced to 5 years of prison and a 55,000 euro fine. They were stripped of their military ranks. The main implicated private businessmen were also sentenced to 5 years suspended prison, had to pay heavy penalties and important sums were confiscated. The confiscations amounted to 7.618.425,67 Euros.

It is important to note that in public procurement regulations, corruption of public officials is a ground for cancellation of public contracts. Article 314 of the Penal Code provides for sanctions when awarding a contract is vitiated by violence, threat, gifts, promises or other fraudulent behaviour.

Bribery of a person holding public office by an individual is punishable with a prison sentence of up
to 10 years and/or a fine of up to €1.1 million. For companies and other leg al entities, the maximum fine is €2.2 million. For companies and other legal entities, the maximum fine is €550,000.

For both public and private bribery, other sanctions include being debarred from certain offices and confiscation of the object and proceeds of the offence.

Following the fraud cases, the DoD mandated a high-ranking officer to reinforce budgeting and financial control within Defence so as to avoid cases of fraud as much as possible and to enable prompt detection of fraud attempts.

Researcher4165: Parliament has considered several whistle-blowing initiatives, seven of which have failed. On September 15, 2013, Parliament adopted the “notification of suspected breaches of integrity in the federal administrative authorities by their employees.” It introduces a two-tiered approach, relating to internal and external whistle-blowing. With regards to the internal whistle-blowing, the employee must first alert his line manager of alleged corruption (article 6 §1). The line manager is supposed to ensure confidentiality and safeguard the employee against retaliation. If the employee wishes to not inform his head of department concerning the suspected breach of integrity, he can also notify the Confidential Advisor Integrity of his department (article 8 §1, 2nd para). With regards to external whistle-blowing, whistle-blowers can access the second tier if “there is no confidential advisor within the federal department where they work; if they do not wish to raise their concern internally; if the head of the department where they work is involved in the suspected wrongdoing; or 4) if the suspected wrongdoing takes place in a different federal department than the one they work in. In this external route, the whistle-blower reports to parliament as opposed to the executive government. For both internal and external tiers, the federal ombudsperson is responsible for providing broad protection for the whistle-blowers against “dismissal, demotion, missing promotion, disciplinary measures, denial of pay raise, unfavourable performance evaluation, withholding of access to facilities and training, and denial of annual leave.“

Despite the presence of formal legislation, whistle-blowing is not actively encouraged. Evidence suggests that the process takes a very long time and that would-be whistle-blowers are often sceptical about the effectiveness of their intervention. Alternatively, anyone can file a complaint in court.

Following a judgement of the ECHR, an expert military lawyer confirmed that the military enjoy freedom of expression, and that whistle-blowers are entitled to exert such freedom. However, he adds that the abuse of this freedom can be subject to disciplinary action. Based on the assessment criteria used by the ECHR, he also believes that the higher the military ranks, the more one has to be careful when issuing an opinion.

Researcher4165: Special attention is paid to personnel in sensitive positions, where the DoD conducts background and personality checks. When recruiting new personnel, candidates are asked to provide a 'certificate of good living and morals'. The focus is rarely on integrity aspects explicitly.

Training programs do not always pay attention systematically to integrity, although topics such as ethics and code of conduct are addressed.

Researcher4165: The Constitution requires that the contingent of the army must be fixed each year.
The latest statistics, issued by DGHR, show at January 1, 2015 a total of 32.342 persons employed by Defence, 30.512 Military and 1.830 Civilians. All these figures were confirmed by the interviewee and are communicated to the press.

Researcher4165: As the military are civil servants, their basic salaries are aligned with those of their civilian counterparts.

For each category, there are several wage levels depending on the grade (levels B, C and D: primary school and high school degrees) or class (level A: university degrees). Some public services have specific salary ranges for their specific grades.

Allowances for the Defence personnel are aligned with those of their colleagues in the other ministries and civil administrations.

This information is available in the reports of all public administrations, and communicated to the press.
The characteristics of the military profession are taken into account by a specific AR covering at the same time, remuneration, bonuses and all their financial rights.

Researcher4165: DG BudFin carries out payments on the basis of information transmitted by DGHR that manages the administrative careers of the personnel. This implementation work is followed by a procedure of internal control.

The use of software shared by central and local services ensure the coherence of the division of labour within the management of remunerations.

ESA (Elements of Administrative Support) indicate the accounting services of bases and camps. ESA works as a helpdesk for units and is the first line of contact for DG BudFin when the internal controls in the computer system of management of payments detect material errors. ESA then participates as an accountant service, in the management of salaries and allowances. It checks the regularity, calculates and pays the amount due.

An audit conducted by CC in five military bases and camps showed uniformity of division of labour human resources management at the local level, despite the specificities of the Marine, Land and Air components. No errors were found in the recognized payments rights in camps and bases visited. This was confirmed by the interviewees.

The assessor could find no evidence that the system is published. There is no information as to whether basic pay is non-discretionary or not.

RESPONSE TO GOVERNMENT REVIEWER: Score of 3 maintained, as there seem to be limits to the information regarding the payment system that is published.

Researcher4165: The promotion system of the military is described and provided for in various legal and regulatory texts:
For subalterns officer ranks (from second lieutenant to captain-commandant, which is an intermediate rank between captain and major), promotion is by seniority at fixed intervals.

There are objective job descriptions in place; they are controlled by the existing auditing bodies.
The promotion of senior officers and generals, on the contrary, is not automatic and is determined by a file review of each candidate for promotion.

The detailed examination of these files is accomplished by promotion committees, which are internal to DoD. They formulate recommendations to the King for the nomination or promotion of candidates to a higher rank.

A note is released to each promotion committee,and brought to the attention of each candidate qualified for promotion. The whole procedure is disclosed including the list of candidates.

Furthermore, the law on the publicity of administrative acts applies to all administrative decisions, promotions of the military included. In accordance with this law, the motivations of the committees' decisions are disclosed to the candidates.

Despite the DoD procedures and the legislation in force, as well as the strict application of the law on the publicity of administrative acts, evidence indicates the promotion of generals and even some colonels is often based on a distribution of positions based on their political affiliation.

Some candidates do certainly not have any political agenda (i.e. are members or supporters of a political party) but appear to become politically affiliated to access a high ranked position. Political parties, members of the majority are distributing vacancies in proportion to their power following the elections. Some politicians criticize a system that allows nominations based on linguistic affiliation. Frequently when a new government comes to power, it promises to abolish - or at least greatly reduce - the system of political appointments.

RESPONSE TO GOVERNMENT REVIEWER: Agree, score increased to 3.

Researcher4165: As described in question 41, nominations and promotions in the DoD are decided via internal promotion committees, under an open procedure, since the motivations of the committees' decisions are disclosed to the candidates.

As described in the previous question. Despite the DoD procedures and the legislation in force, as well as the strict application of the law on the publicity of administrative acts, evidence indicates the promotion of generals and even some colonels is often based on a distribution of positions based on their political affiliation.

Candidates who consider themselves unfairly treated can initiate a procedure at an independent Administrative Court, the ConsEtat, which can suspend or cancel nominations or promotions.

Senior officers of all three branches are subject to tough, professional exams to get the licence ('brevet') for GS, and beyond to get promotions (for instance naval Commanders, Lieutenant-Kolonels, Colonels). Promotions are dependent upon passing these examinations.

RESPONSE TO GOVERNMENT REVIEWER:Agree with comments, score increased to 3 in light of additional evidence.

Researcher4165: The compulsory military service, which had been established by a law signed December 14, 1909 by King Leopold II, was suspended by a decision of the Council of Ministers in 1992.

The last conscripts left the service on February 5, 1995.

Researcher4165: There is no longer military conscription in Belgium. Over the last decade, some proposals were made in favor of a voluntary civil conscription of some kind, but they were not endorsed.

Researcher4165: There are no ghost soldiers or non-existent soldiers. The overall control, the accuracy and the strength of payment systems and oversight suggests that the phenomenon is very unlikely to occur. DG BudFin carries out payments on the basis of information transmitted by DGHR that manages the administrative careers of the personnel. This implementation work is followed by an internal control. The use of softwares shared by central and local services ensures the coherence of the division of labour within the management of remunerations.

The press never reported or published articles on the possibility of the existence of soldiers ghosts in Belgium. There is no such practice in other government departments.

Researcher4165: Chains of command appear to not actually separated from chains of payment throughout DoD and the Armed Forces.

Payments to military and civilian members of Defence are carried out by a Directorate-General &quoute;Budget and Finance&quoute;, on the basis of information transmitted by DGHR that manages the administrative careers of the personnel. This implementation work is followed by internal controls by the CAAF, CC, IAD.
The interviewee confirmed this information.

Researcher4165: In Belgium, all Federal Civil Servants are bound by a Federal Code of Conduct. In addition, DoD established a Code of Conduct for civilian and military personnel engaged in public procurement (see above). This Code of Conduct is revised regularly.

Both Codes address specifically items like bribes, fraud, conflicts of interest, are discussed within the appropriate commissions in parliament, are made available to the personnel and are partially the subject of publications in the press.

In the military units, everyone working in the procurement area must sign this Code of Conduct.
DoD also has a responsible department and appointed some people in a support function for integrity. DoD has developed its own deontological code, established after extensive consultation with personnel and trade unions. DoD is also using internal control and/or internal audit to examine obstacles to integrity.

The most representative organisms are CM, BFC, IAG Def and IAD. There is evidence of the effectiveness of their work. Trials are open to the public. The results of prosecutions are communicated to and by the press.

The Defence Code of Conduct, however, is not publicly available (but only on an internal website).

Response to Government Reviewer: Score 4 cannot be awarded as the Code is not public.

Researcher4165: Breaches of the Code of Conduct are indeed effectively addressed and brought to justice.

The 2012 trial, mentioned above, reported important infractions resulting in significant convictions, which have been widely commented on by the press.

Such trials are open to the public. The results of prosecutions are communicated to and by the press.

Researcher4165: A number of dilemma training sessions were organised some years ago, more specifically on conflict of interest, problem solving, and aimed at preventing corruption. However, these sessions do not appear to be covering exhaustively all subjects or situations with which the servicemen can be confronted.

As covered in Questions 53 and 55, there is training on corruption in operations.

Researcher4165: A well-known case, called the &quoute;Agusta-Dassault&quoute; case, was handled by the Court in the nineties, as politicians, officials and the French industrialist Serge Dassault, ministers were accused of corruption. A criminal trial was handled by the Court of Cassation. The CEO of the Dassault Group, implicated personally in this case, received a two year probationary sentence for bribery.

The 2012-2013 trial also revealed important infractions resulting in significant convictions, which have been widely commented on by the press.

Another case was reported in the DoD, significant frauds committed between 1996 and 2005. Thirty-one people, military and private contractors, have been accused of forgery, use of forgery, misappropriations of funds and embezzlement at the detriment of the Belgian army and DoD. The fraud was estimated at more than 15 million euros. The Court of appeal sentenced fifteen military and contractors.

Since 2003, the military tribunals (Court-martials and Military Court) no longer exist in peacetime in Belgium. The above mentioned cases were judged by the civil and criminal courts. As a consequence, all court proceedings were public from the beginning to the end and subject to lengthy analysis in the press.
There is no evidence whatsoever of cases being suppressed or inappropriately sanctioned.

RESPONSE TO PEER REVIEWER 3: Score 3 has been awarded as lack of evidence of recent prosecutions makes it is unclear whether there is a policy to make public all prosecutions or if all prosecutions taking place in recent years have been effective.

Researcher4165: Facilitation payments are not permitted in Belgium.

It is important to note that in public procurement regulations, corruption by public officials is a ground for cancellation of public contracts. Article 314 of the Penal Code provides for sanctions when awarding a contract is vitiated by violence, threat, gifts, promises or other fraudulent behaviour.

Bribery of a person holding public office by an individual is punishable with a prison sentence of up
to 10 years and/or a fine of up to €1.1 million. For companies and other leg al entities, the maximum fine is €2.2 million. For companies and other legal entities, the maximum fine is €550,000.

For both public and private bribery, other sanctions include being debarred from certain offices and confiscation of the object and proceeds of the offence.

Following the fraud cases, the DoD entrusted a high-ranking officer with a mission to reinforce budgeting and financial control within Defence so as to avoid cases of fraud as much as possible and to enable prompt detection of fraud attempts.

Following the aforementioned corruption cases, DoD entrusted a high-ranking officer with a to reinforce budgeting and financial control within Defence so as to avoid cases of facilitation payments or other fraud as much as possible and to enable prompt detection of fraud attempts.

General laws and existing regulations in the Military Penal Code and in disciplinary regulations of armed forces are applied in the context of existing control bodies, primarily CM, BFC, IAG Def and IAD.

Effective measures are thus in place against corruption and facilitation payments. Legal prosecutions that were conducted have been widely disseminated by the press and the general public is therefore well aware that they are severely prosecuted.

RESPONSE TO PEER REVIEWER 1: Score maintained at 4. Facilitation payments are strictly illegal and mechanisms to punish offenders are in place and are effectively applied.

Researcher4165: Internal regulation does effectively exist, although all risks in operations may not be distinctly addressed as a strategic issue. Corruption is addressed, but the regulation is internal and not publicly available.

RESPONSE TO REVIEWERS: Score changed to 2, the armed forces are aware of corruption as a strategic issue for operations; however, there is no explicit doctrine on this subject.

Researcher4165: There is training on corruption issues for commanders at all levels down to platoon level. There is evidence that they apply this knowledge in the field; even if there may be isolated incidences of corruption issues being mishandled by officers.

Researcher4165: Professionals trained to monitoring corruption in the field are regularly deployed and report internally on fixed intervals on the state of corruption in the course of missions abroad.

This information was provided by the interviewee who also mentioned the existence of confidential reports on the topic. As this could not be publicly verified, score 2 has been selected.

Researcher4165: Following the guidelines, staff members are specifically trained in relation to corruption risk in contracting whilst in operations or deployed in peacekeeping missions. Mission commanders are tasked with giving instructions during briefings on “Contracting in Operations”, imposed by the CHOD's Operation Orders. During these personnel is informed about the Code of Conduct and the necessity of follow-up and control. They are requested to consult and sign the Code and are thus made aware of corruption risks.

The same staff members are tasked with the follow-up and control of the application of these rules.

Researcher4165: The Belgian army did not have recourse to private military contractors, and their employment was forbidden.

This changed in 2013: private security companies can now supply services to the army. For now maritime security companies can be used with the very limited scope of protecting merchant ships in regions with high risk of piracy, but given that the extent of the use of such companies is not clear and there is no experience of sanctions available suggest limited accountability.

RESPONSE TO PEER REVIEWER 2: Score changed to 2 based on the developments since 2013.

Researcher4165: The DoD pays particular attention to the risks existing in the field of public procurement and financial management and has taken various management measures in this regard.

First of all, all European directives regarding defence procurement have been transposed into Belgian law. Second, the statutory audit applies in its entirety via the aforementioned control and audit institutions.

There are exemptions from the Law of August 13, 2011, but they are in line with the European directives.
There is therefore a well-organized procurement control within DoD, which has implemented a systematic internal control of the acquisition process. Procedures are documented; delegations, flowcharts and control measures of the different stages of the procurement process are provided.
The corruption affairs mentioned elsewhere in this questionnaire attest to the effectiveness of these controls.

Few exceptions are allowed (depending on European budgetary thresholds). There is one exception, when it comes to orders for SGRS and this is for confidentiality reasons. MPs are provided with the audits. Most of them are also made public as abstracts or conclusions.

Regarding the Belgian Defence, the scope of procurement is generally limited. In DoD, a recent regulation, preventing any “revolving doors” setup, has been implemented in the “Request for tender” template which is to be used for proposed contracts.

Researcher4165: The entire procurement cycle is set up in conformity with procurement directives based on the European directives.

Defence procurement is not disclosed during negotiations, not even within other departments of the Ministry of Economic Affairs. Publication occurs only after signing the contract.

The government always provides the Parliament and the press with the outline of its PIDS (investment plan for defence and security). It gives them the type and number of materials provided, as well as an overall budget estimate for some of them. Outside Parliament, the various aspects of the defence equipment acquisition cycle, from assessment of needs to asset disposal are therefore always announced ex post.

The PIDS is reviewed and commented at all levels. The government considers nevertheless that details of this plan are politically sensitive, and it is difficult to acquire them, even within DoD departments, except for directly involved services (DGMR).

In practice, the public gets basic information from the media (equipment purchased, supplier, number, price, Belgian companies involved). Citizens may nevertheless find more detailed information in the annals of parliament (record of public meetings general or ad hoc commissions).

RESPONSE TO GOVERNMENT REVIEWER: Score of 1 maintained, as public information seems to only be available in a very abbreviated or general way.

Researcher4165: Following the appropriate legal framework based on EU legislation, the entire procurement cycle is monitored by the control authorities, such as the IF, the Minister of Budget, the CC, the Parliamentary Commission on Defence Procurement and the Council of Ministers.

Established by Article 180 of the Constitution, CC (Court of Audit) is a collateral body of Parliament. It exercises external scrutiny of the budgetary, accounting and financial operations of the Federal State, the Communities, the Regions, the public service institutions depending upon them, and the provinces. It includes the scrutiny of defence expenditures.

CC’s powers are defined in the law of 29 October 1846, which has been amended several times, and in the law of 16 May 2003. The law grants a large independence to the CC and a real autonomy to perform its missions.

Besides advising on the budget, CC performs financial audits, legality and regularity audits and examines the sound use of public funds. It checks the income and expenses of the Federal State, the Communities, the Regions, public service institutions depending on them and the provinces. The outcome of those audit activities are regularly reported to the legislative assemblies and the provincial councils.

Finally, CC carries out specific tasks of good governance (lists of mandates and declarations of assets filed by political representatives and senior officials, advice on financial reporting by the political parties and the campaign expenditure), as well as tasks regarding the distribution of resources between the Communities and Regions (school students counting, personal income tax honesty) and expertise (budgetary impact of bills, accounts of institutions which receive an appropriation).

The IF performs a quadruple role:

1.tProvides financial and budgeting support to accredited ministers and governments. The IF can issue recommendations to increase the efficiency and effectiveness of existing measures and to improve the functioning of public services. It may be responsible for inquiries in public or private subsidized institutions.

2. Exercises a supervisory jurisdiction on behalf of the Budget Minister or the Minister for the Civil Service.

3. Exercises an ex ante control on all major proposals for decisions with a budgetary impact, both on revenues and on spending.

4. Exercises direct supervisory authority over all the transactions planned by the authorising officers, with the exception of operations of low importance or of such a nature that their commitment gives no discretionary margin to the authorising officer.

The IF can exert a strong influence on decision making in financial and budgetary defence matters. It is not uncommon for the IF to give negative advice for certain expenses.

Note also that DoD has devoted internal control modules in all statutory training.

Members of Parliament and especially members of the Defence Committee regularly ask and obtain these reports under the legislation on the advertising of public acts and documents. There is nevertheless reason to believe that there is some influence exerted by the government.

La Libre Belgique reported in 2013 that there were shortcomings of the scrutiny mechanisms as between 2009 and 2012, 35 helicopters were sold to a company whose director was under investigation for corruption.

RESPONSE TO GOVERNMENT REVIEWER: Score of 3 maintained as there appears to be some influence exerted by the government.

Researcher4165: Actual and potential defence purchases are listed online on the DoD's website.

In general, intentions of DOD to acquire equipment are reflected in the press at the time when they are discussed in Parliament (Defence Committee and Committee on Defence Procurement).

The request for tender is published at a national and/or a European level. Few exceptions are allowed (depending on European budgetary thresholds). There is one exception, when it comes to orders for SGRS (General Intelligence and Security Service of the Army), and this is for confidentiality reasons. MPs are provided with the audits. Most of them are also made public as abstracts or conclusions.

Researcher4165: The Belgian legislation is compatible with existing EU legislation. Indeed, it transposed Directive 2009/81/EC of the European Parliament and of the Council of July 13th, 2009. Any candidate or tenderer having been the object of a condemnation pronounced by a court order for participation in a criminal organization, corruption, fraud or money laundering, terrorist offenses or offenses linked to terrorist activities or instigation, help, participation or attempting to commit such offences, are disqualified from bidding.

During the bidding process, the government refers to the Belgian legislation, which includes the obligation to respect the very foundation of a healthy and fair competition, and thus for the bidders to avoid corruption.

Apart from these restrictions, no other prerequisites are provided as far as compliance programs or business conduct programs are concerned.

There is recent evidence though that this is not always applied in practice. La Libre Belgique reported in 2013 that there were shortcomings of the scrutiny mechanisms as between 2009 and 2012, 35 helicopters were sold to a company whose director was under investigation for corruption.

Researcher4165: In Belgium, the defence and security strategy is determined by the government, discussed and voted in Parliament. The most important non-technical aspects of this strategy are published in the press.
Procurement programs are the result of an internal debate in the DoD Staff and are based upon the PIDS, which is part of a five-year plan approved by government.

All major procurement programs are presented to Parliament (Defence Committee and Committee on Defence Procurement). These commissions can ask for an insight into the requirements and the procurement procedure(s). All programs have to respect the strategic view of Defence.

Researcher4165: The defence and security strategy is determined by the government, discussed and voted on in Parliament and communicated to the press.

Procurement programs are the result of an internal debate in the DoD and are based on all requirements gathered in a document called PIDS (Plan d'investissements pour la Défense et la Sécurité - Investment Plan for Defence and Security). The PIDS is approved by government. The formulation of a specific need for military equipment is issued by a “material manager” who is responsible for the accuracy of the requirement regarding the specific “goods, services or works” to be procured. The DoD Staff submits it to the government.

For major equipment, a three-phase process is generally implemented.

The Preparation Phase involves a first exploration of the market; it is initiated by the MoD and corresponds to a RFI (Request for Information).After the government has collected the responses to the RFI, the Programming Phase starts by a Request for Proposal and/or a Request for Tender. Finally, the Acquisition Phase concerns the formal approval process for the choice of a supplier, as well as the size of the program, including the budgetary frame. Negotiations can begin after an initial approval by the Council of Ministers. At the conclusion of these negotiations, the definitive agreement is submitted for approval to the Council of Ministers.

Researcher4165: Nowadays, when DoD purchases standard non-military items, the procurement is conducted as open competition based on national law and European directives (the 2004/18/EC directive and the Law of June 15, 2006).

A restricted procedure (mandatory above EU thresholds) or a negotiated procedure with publication could be used in order to implement selection criteria prior to sending out the request for tender.
In application of both 2004/18 and 2009/81 European directives, the negotiated procedure without prior publication (e.g. single sourcing) is still subject to legal justification, which means that a legal basis is mandatory prior to using this procedure.

There is a longstanding exception to the open competition in the case of FMS (Foreign Military Sales). The FMS program of the US DoD facilitates sales of U.S. defence equipment military training to foreign governments and international organizations when the US President formally finds that to do so will strengthen the security of the U.S. and promote world peace. This program appears however not to be used when it comes to sales to Allies with developed economies.

Article 346, paragraph 1 of the TFEU is the exception to the general rule of open competition in the EU. Initially, the application of this Article was required for security reasons in the still hostile environment of the Cold War. But over time, the narrow national sovereignty concerns, and even more the protection of the national defence equipment became the leitmotifs. The EU member countries still try to take advantage of this article 346, paragraph 1 of the TFEU:

“1. The provisions of the Treaties shall not preclude the application of the following rules:
(a) No Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;
(b) Any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the internal market regarding products which are not intended for specifically military purposes.”Consequently, a State cannot invoke any longer article 346 of the TFUE to demand obligations of industrial participation by only invocation of the necessity of protecting its essential security interests, with the intention of economic or industrial protectionism.&quoute;

The extent of the use of single sourcing is unclear. A 2006 study stated the Belgian government had said that &quoute;non-competitive defence procurement data did not exist&quoute;. According to the information supplied for the study, single sourcing accounted for 10.3% of the value of all contracts. The score has been selected on the basis that it is unclear whether this proportion has stayed consistent.

Researcher4165: In Belgium, all Federal Civil Servants are bound by a federal Code of Conduct. In addition, DoD established his own Code of Conduct for civilian and military personnel engaged in public procurement. This Code of Conduct is revised regularly.

Members of tender boards or technical evaluation teams have also to sign the Code of Conduct prior to taking up their duties. Personnel involved in the public procurement process are obliged to inform their hierarchy in case a possible conflict of interest could arise from their participation in the process.

DoD also and appointed some people in a support function for integrity. DoD has developed its own deontological code, established after extensive consultation with personnel and trade unions. DoD is also using internal control and/or internal audit to examine attacks to the integrity.

The most representative organisms are IAG Def and IAD. Evidence of their activity can be found online, as shown by regular reports on their functioning, for instance by CAAF (Audit committee of the federal administration).

The results of the audits are communicated to the Parliament.

The tender boards, together with the programmes and contracts are under the scrutiny of the Parliamentary Defence Committee and the Committee on Defence Procurement.

Researcher4165: In accordance with international law, Belgium took measures to prevent corruption involving the private sector and, in particular, to avoid a &quoute;revolving doors&quoute; situation leading to conflict of interests in the context of a procurement procedure or the execution of a public contract of the contracting authority. The recent regulation preventing “revolving doors” setups also strictly prohibits collusion or any agreement between different bidders for the same contract.

Belgian law prevents any conflicts of interests by imposing a two-year period in the course of which a former civil servant may not, after his resignation or his/her retirement, exercise new activities in the private sector where such activities are directly related to the functions exercised by the civil servant officials when s/he was in office.

A standard clause is inserted in the contracting documents in order to sensitise firms about the revolving doors mechanism and its possible consequences regarding public procurement contracts in which they wish to participate. It is brought to the attention of firms via the websites of the competent federal government services in public procurement and integrity checking. Dissuasive sanctions for non-compliance with those measures are planned.

Researcher4165: In the DoD, having already acquired a basic university degree, leading officers responsible for projects and procurement contracts can follow postgraduate university studies leading to a Master of Arts in Public and Military Administration. Legally, leading officers are not required to have the latter university degrees, but the general policy in DoD is to put officers with these degrees in charge of projects and contracts. Their training focuses on Budget and finances, public accounting, Public contracts, Public management, Material resources and decision making techniques.

Other responsible officers and non-commissioned officers take a Contract Manager Course in order to prepare them for the entire procurement process.

In addition, the entire procurement staff regularly follows seminars on the evolution of all legal aspects of their function.

As mentioned by the Government Reviewer, an MPMA took place in 2015-2016.

Response to Government Reviewer: There is no clear evidence that staffing and resources are not an issue to award score 4.

Researcher4165: Legal provisions ensure that in all circumstances, firms are protected from any form of discrimination. In this domain, Belgian legislation is much stricter than in most other countries, according to the interviewee.

Complaints can be filed within DoD either to the Procurement Division itself, to the Legal Department or the Complaints Manage or to the Minister himself.

In addition, in all occasions, a firm that feels disadvantaged can initiate a procedure and challenge any administrative decision before the Council of State, which can suspend or annul all decisions.

Researcher4165: Corruption is one of the exclusion criteria for public procurement contracts.

Belgian law prevents any conflicts of interests by imposing a two-year period in the course of which a former civil servant may not, after his resignation or his retirement, exercise new activities in the private sector where such activities are directly related to the functions exercised by the civil servant officials when he was in office. A standard clause is inserted in the contracting documents in order to sensitize firms about the revolving doors mechanism and its possible consequences regarding the public procurement contracts in which they wish to participate. Dissuasive sanctions for non-compliance with those measures are planned.

The recent regulation preventing “revolving doors” setups does also strictly prohibit collusion or any Agreement between different bidders for the same contract.

In the past, the so-called &quoute;Agusta-Dassault&quoute; case of the contract signed on June 7, 1989, by Belgium with the firm ESD (Electronics Serge Dassault) to equip the F-16 Air Force with 135 electronic countermeasures systems and their support (Carapace) revealed that Dassault reportedly paid 30 million BEF (744.000 EUR) in bribes to ministers, high dignitaries and senior officials and two political parties in Luxembourg secret accounts.

A criminal trial was handled by the Court of Cassation. The French industrialist Serge Dassault, CEO of the Dassault Group, implicated personally in this case, received a two year probationary sentence for bribery.

In the army, however, there are more recent cases. Significant frauds were committed within the Belgian Army between 1996 and 2005. After a hundred searches conducted in March 2004 by federal and regional prosecutors of Brussels, suspicions of fraud were formulated against the Ministry of Defence and the army.

Thirty-one persons, military and private contractors, were accused of forgery, use of forgery, misappropriations of funds and embezzlement to the detriment of the Belgian army. The fraud was estimated at more than 15 million euros. The Court of appeal finally sentenced fifteen people, military and contractors. Two officers considered being the instigators of fraud and embezzlement underwent a 5 years suspended sentence and a 55,000 euro fine. They were also displaced of their military ranks.
Six private contractors also underwent a 5 years suspended sentence, heavy fines and have also been confiscated large amounts. The confiscations totalled 7,618,425.67 Euros.

Researcher4165: In Belgium it is not DoD but the Ministry for Foreign Affairs (MAE) which is responsible for all aspects of the application of the offsets system, including negotiation, control and follow-up, including and especially for defence procurement.

Officially, offsets play only a secondary role in the awarding of contracts. Indeed, in principle, Belgium does not require offsets in an offer. It is only when the MAE is offered conditions with a comparable economic interest (when the price difference is less than 10%), and that at the same time DoD does not express a strong preference, that offsets can or will intervene in the decision process.

The Government then evaluates the offer by granting to the offsets criterion a weighted value of maximum 15% of the total market criteria.

There are contractual penalties for any breach by the contractor of the commitments in terms of offsets; they come at least to 10 % of the unrealized amount of offsets.

The CC is responsible for the control and performs each year a general audit. It conducts longer-term in depth audits, assessing the relevance, the regularity and the appropriateness of the offsets system.

Response to Government Reviewer: Offsets contracts do exist in Belgium. This is verified by media reports and a 2014 study by Martin Trybus which clearly states that Belgium has a policy for asking for offsets. Score maintained.

Researcher4165: Evidence indicates that for many years, offsets have been conducted with little transparency.

The EU member countries are indeed still able to take advantage of article 346 of the TFEU.

As a consequence, the European Commission reprimanded Belgium considering that it repeatedly justified its requests for offsets with arguments primarily based on the expected general economic benefits. Deviations from EU law, on the basis of article 346, are unacceptable on this basis.

The most important problem lies in the lack of communication and transparency even on the nature, choice, distribution and control of the offsets, as well as on imposed sanctions for non-compliance.
The public only gets some information on the overall amounts corresponding to the offsets and never on their distribution. Even in other MAE departments, this information does not circulate. The government does not make public copies of the contracts themselves and of planned offsets contracts to enable public and civil society comment before contract award.

Response to Government Reviewer: Offsets contracts do exist in Belgium. This is verified by media reports and a 2014 study by Martin Trybus which clearly states that Belgium has a policy for asking for offsets.

Researcher4165: Officially and theoretically, the answer is positive, since offsets are based on the same AR. But the practice may differ.

When offsets are required, they are part of the global package managed by the Government through the Ministry of Economic Affairs. They are awarded to companies in competitive tenders that have made an offer in the context of a Request for Tender and having been appointed by the government.

The choice whether to impose offsets or not, clearly has far reaching implications on macroeconomics, labour markets, Defence procurement, technological and Defence industrial policies.

As a tool offered by Government to Business, offsets can be used to shape a domestic defence market; therefore, offsets are not a neutral tool, which explains why they are considered with mixed reactions.

Response to Government Reviewer: Offsets contracts do exist in Belgium. This is verified by media reports and a 2014 study by Martin Trybus which clearly states that Belgium has a policy for asking for offsets.

Researcher4165: The DoD pays particular attention to the risks existing in the field of public procurement and of financial management and has taken various management measures in this regard. The European directives in defence have been transposed into Belgian law, making companies responsible in case of any use of intermediaries.

DoD considers, however, that in some cases, for example when firms are not used to DoD or public procurement procedures, agents or intermediaries can be helpful. In this case, the latter must obtain an authorisation in order to assist the contractor.

Intermediaries or agents used in the procurement cycle have responsibilities with regard to their customers, the companies. In the cases where problems arise, it is the latter who would be would be the subject of an investigation.

Researcher4165: Any firm interested in participating in a public procurement contract has the possibility to consult European directives and the Belgian legislation.

In May 2014, an AR was issued: in order to better reflect the terms of payment set out in the directive 2011/7/EU and establishing the general terms of contract execution. This information is publicly available and allows companies to position themselves in relation to the needs and requirements of the contract in order to compete in knowledge of the facts.

Each firm is thus in a position to be completely aware of all terms and conditions set out in Belgian procurement legislation relating to all commercial and management issues.

Researcher4165: Only prime contractors are controlled by the CA, who expects obligations to flow down to its subsidiaries and subcontractors. Confidential sources explained that efforts are being made to open up the supply chain and to impose on main contractors to put their subcontracts into competition. This would enable the main contractor to include the same exclusion criteria among others based on corruption and fraud. There are no public sources available to confirm this.

Researcher4165: The basis for Belgian Defence Procurement is set out in the legal articles described above.
Since the acquisition process is subject to external checks (IF, Parliamentary Commission of Defence and Commission on Defence Procurement), political influence in the process is theoretically of no avail.

In practice, in the case of contracts for major weapon systems, there is evidence from the past of political influence. SIPRI most recent 2012 report mentions military equipment imports from European countries.