French Decree 2022/901: the consequences for the defence industry and civil aviation

On 19 June 2022, Decree 2022/901 on war material, arms and ammunition and sensitive operations relating to national defence or national security came into force.

It is mainly aimed at the arms industry but also at civil aviation stakeholders.

It brings, in particular, the following new features:

1. Modify classification A2, relating to war materials (drones, electromagnetic or laser beam weapons…).
2. Controlling the manufacture and trade of new war materials, weapons and ammunition, as well as their import and export.
3. Incorporate exemptions from aeronautical easements affecting civil aviation.

1/ Firstly, Decree 2022/901 modifies the A2 Classification (R311-2 of the Internal Security Code).

*NB: Category A is divided into two sub-categories:

• • • A1: firearms (handguns or long guns, their ammunition and components) prohibited from possession and;
    • A2 (“War Material”): in particular, automatic repeating weapons as well as materials intended to carry or use these weapons in combat (combat equipment, laser beam weapons, etc.).

Regarding the “war material”, classified as A2, the following are required:

• • • A specific authorisation from the French Minister of Defense (Bureau of Regulation, Classification, Dual Use and Industrial Security or “BRSI”) for manufacturing, trading, intermediation activities, called “AFCI” (L2332-1 of the Defence Code).
    • An import (AIMG) and export or intra-EU transfer authorisation (respectively Articles L2335-1 and L2335-2 or L2335-9 of the Defence Code), in order to be able to negotiate, accept orders and ship these materials outside France

First of all, the Decree modifies the third paragraph of item A2, previously limited to directed energy weapons (DEW) using a laser beam, to include high-powered electromagnetic wave weapons.

However, there is no indication of the value of the power in question.

*NB: Electromagnetic weapons use high-powered microwave beams of various frequencies, from a few kHz to several hundred GHz.

Then, the Decree adds a new sub-category A2§19° (bold added): “Weapons, designed to destroy or render inoperative aircraft travelling without a person on board, designed for military use or national security“.

*NB: This new category specifically targets weapons designed for the neutralisation of drones. According to Article R311-1 of the Code of Homeland Security, a weapon is defined as “any object or device designed or intended by nature to kill, injure, strike, neutralise or cause incapacitation“.

These new laser or electromagnetic devices aimed at neutralising drones therefore meet this definition of a “weapon”.

It therefore appears that any anti-drone device designed for military or national security use is now classified as A2 war material.

Thus, companies that design, manufacture or trade such systems must verify whether their products now fall under the new category A2§19°. If so, an AFCI must be requested from the DGA/BRSI, since it is necessary to continue any manufacturing or commercial activity related to the A2 category.

At last but not least, to allow for this transition, the Decree provides that operators holding equipment newly classified as A2§3° or A2§19° must:

• • either divest itself of the equipment in question in accordance with the terms of Article R312-19 of the Internal Security Code,
  • or request the authorisations required to retain this equipment, in accordance with the terms of Article R2332-5 of the Defence Code or R312-27 of the Internal Security Code, within 12 months of 18 June 2022 (date of publication of this text).

2/ Secondly, Decree 2022/901 modifies Article R2332-5 of the Defence Code, relating to the authorisation of manufacture, trade and intermediation.

In the second paragraph, the word “national territory” is deleted: “The use or exploitation, on national territory, of war material and similar material for the benefit of either public persons or private persons who can prove an interest linked to the exercise of their professional activities or their corporate purpose.

In practice this was already the case, but the legislator wanted to remove all ambiguity and recall here, that even for the use or exploitation of war material or similar material outside the national territory, an AFCI is required.

Please note that this change will only come into force from 1^er October 2022.

3/ Finally, the Decree 2022/901, has integrated derogations concerning the areas subject to aeronautical easements, in Articles D242-8 and D242-9 of the Civil Aviation Code.

*NB: An aeronautical clearance zone is an area in which the height of buildings and obstacles of any kind is regulated. The purpose of this zone is to protect aircraft so that they can operate safely in the air and in particular during the approach phase (runway turn).

The modification of these two articles has the following effect: the Minister of the Armed Forces may request, after a technical study, the installation of equipment contributing to aeronautical safety or to the safety of public air transport as well as the construction of buildings or installations necessary for the conduct of works, on the aerodromes of which he is the main or sole assignee (within the meaning of Article R211-6 of the Civil Aviation Code).

The Minister of Defence can therefore replace the territorially competent State representative, who was previously the only one who could authorise these installations.