Forslag til EUROPA-PARLAMENTETS OG RÅDETS DIREKTIV om ændring af direktiv 2009/43/EF og 2009/81/EF for så vidt angår forenklingen af overførsler af forsvarsrelaterede produkter inden for EU og forenklingen af sikkerheds- og forsvarsindkøb

EN EN
EUROPEAN
COMMISSION
Strasbourg, 17.6.2025
COM(2025) 823 final
2025/0177 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Directives 2009/43/EC and 2009/81/EC, as regards the simplification of intra-
EU transfers of defence-related products and the simplification of security and defence
procurement
Offentligt
KOM (2025) 0823 - Forslag til direktiv
Europaudvalget 2025
EN 1 EN
EXPLANATORY MEMORANDUM
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The Russian invasion of Ukraine has underscored the need for a strengthened Union-wide
market for defence products, capable of supporting the defence readiness of Member States in
the face of emerging security threats. The ongoing conflict has exposed vulnerabilities in the
European defence landscape, highlighting the importance of a cohesive and resilient defence
industrial base. A well-functioning European defence market is essential to ensure that
Member States have access to the necessary defence capabilities, technologies and products to
respond effectively to current and future security challenges.
The impact of the changing geopolitical landscape on the European defence market has been
significant, with disruptions to supply chains, increased demand for defence products, and a
growing need for interoperable and innovative solutions. However, existing legislation
impacting the European defence market is not fully adapted to the current challenges,
hindering the ability of Member States to respond rapidly and effectively to emerging threats.
In response to these challenges, the European Union must take steps to strengthen the EU-
wide market for defence products, promoting a more integrated and competitive defence
industrial base. By creating a more robust and resilient European defence market, the Union
can support the defence readiness of Member States, promote European strategic autonomy,
and contribute to a more stable and secure European security environment.
As indicated in the Joint White Paper for European Defence Readiness 20301
, “rebuilding
European defence requires, as a starting point, a massive investment over a sustained period.
Together we must accelerate work on all strands to urgently ramp up European defence
readiness to ensure that Europe has a strong and sufficient European defence posture by
2030 at the latest”. Furthermore “based on projections of gradual take-up of the instruments
proposed under the ReArm Europe Plan/Readiness 2030, defence investment could reach at
least EUR 800bn over the next four years”.
Rebuilding European defence will require massive investment over a sustained period, both
public and private. Considering the above, and further to the Council call on the European
Commission to accelerate the work on all strands to decisively ramp up Europe’s defence
readiness 2030, the present proposal aims to make the Union legislative framework conducive
for defence readiness activities and overall ramp up to a level that can credibly deter any risk
of armed aggression.
It aims to address the fact that there is an urgent need to cover the important defence
investment gaps that were accumulated over past decades by better aligning the regulatory
framework to the extraordinary efforts required in this field. More specifically, with the
current proposal the Commission puts forward simplification proposals to remove regulatory
barriers, facilitate and speed up defence procurement and intra-EU transfers of defence-
related products and facilitate European defence readiness and industrial buildup.
1
Joint White Paper for European Defence Readiness 2030: JOIN/2025/120 final, 19.03.2025.
EN 2 EN
• Consistency with existing policy provisions in the policy area
The proposal aims to adapt the provisions governing the EU-wide defence market to the
current security scenario, by introducing targeted adjustments that simplify administrative
procedures, cut red tape, and provide more flexible solutions. By streamlining procedures and
reducing bureaucratic obstacles, the proposal seeks to create a more agile and responsive
European defence market, better equipped to support the defence readiness efforts of Member
States and promote the development of a competitive and innovative European defence
industry. The proposal follows the vision and objectives defined in the Joint White Paper for
European Defence Readiness 2030 and aims at facilitating the implementation of the ReArm
Europe Plan - Readiness 2030. It also includes provisions that specifically aim at better
aligning EU defence procurement and transfers regulation to the needs of the implementation
of EU defence industrial programmes, such as the European Defence Fund (EDF).
• Consistency with other Union policies
The proposed measures to strengthen the EU defence market are designed to build upon and
complement existing policy provisions, with the aim of enhancing Europe's defence
capabilities and supporting the defence readiness of Member States. The adjustments
introduced by these measures are limited to what is necessary to ensure that Member States
can achieve the required level of defence readiness in the near future, in response to the
evolving security landscape and the need to deter emerging threats.
The proposal is part of a package of measures to extend to the defence sector and more
specifically for defence readiness purposes including defence production and supply chain,
the provisions that other areas currently benefit from. Its purpose is to deliver on the
commitment of the Commission to; 1) enhance Europe's defence capabilities in response to
concerns about Russian aggression and; 2) build up the EU's defence industry and call for
massive long-term investments in defence capabilities to deter threats through a simplification
process to tackle administrative burden and cut red tape.
Under the Regulatory Fitness and Performance Programme (REFIT), the Commission ensures
that its legislation is fit for purpose, targeted to the needs of stakeholders, and minimizes
burdens while achieving its objectives. This proposal is therefore part of the REFIT
programme, reducing unnecessary burdens for the defence sector, by aligning them with the
rules currently applicable to the different procedures and schemes.
The current proposal focuses on the defence readiness actual situation needs, making the
achievement of the objectives of legislations more efficient and less burdensome for
enterprises and public authorities.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The proposal amends existing directives. Therefore, the legal basis for the proposal is the
same as the legal basis of the amended directives, namely Article 53(2), Article 62, and
Article 114(1) of the Treaty on the Functioning of the European Union (TFEU). Article 114
of the TFEU is a general legal basis with the objective of establishing or ensuring the
functioning of the single market. To the extent that this Directive amends Directive
EN 3 EN
2009/43/EC2
, the appropriate legal basis, in so far as those amendments are concerned, is
Article 114 TFEU. To the extent that this Directive amends Directive 2009/81/EC3
the
appropriate legal basis, in so far as those amendments are concerned, is Article 53(2), Article
62 and Article 114 TFEU.
All the pieces of legislation affected by this proposal contain similar provisions that are
intended to reduce the burden for Member States and industry or provide them with assistance
to carry out the obligations imposed on them through the relevant acts, with the aim of
making such legislation easier to apply and less burdensome. In view of extending this
proportionality where administrative burden is concerned, it is considered necessary to extend
the provisions to the EU-wide defence market to support the defence readiness of Member
States and foster the development of a competitive and innovative European defence industry.
• Subsidiarity (for non-exclusive competence)
The proposal aims at amending EU legislation directly touching upon the EU-wide defence
market. The same could not be accomplished at Member State level, in particular taking into
account also the need for ensuring a harmonised approach across Member States, which is of
critical importantce for effective simplification.
• Proportionality
In the context of the amendments to Directives 2009/81/EC and 2009/43/EC the proposal
aims at simplifying the currently applicable regulatory framework and codifiying certain
elements of procurement law established in the case-law of the Court of Justice of the
European Union.
The measures do not go beyond what is necessary to achieve these goals.
• Choice of the instrument
All the Directives under this proposal are harmonised legislations under the EU rules. These
pieces of legislation contain provisions that take into account the situation and the growing
needs of the defence sector and ensure that requirements avoid imposing an unnecessary
burden on the defence readiness, production and supply chain processes. This proposal aims
at ultimately making such legislation easier to apply and less burdensome.
Therefore, in the interest of efficiency, a joint proposal for the various relevant provisions
applicable to the defence sector in the form of the Defence Readiness Omnibus proposal,
appears to be the most suitable solution. In particular, the choice of a Directive for this
proposal is justified by the need to use the same legal instrument as the legal acts that are to
be amended.
2
Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms
and conditions of transfers of defence-related products within the Community (OJ L 146, 10.6.2009, p.
1–36, ELI: http://data.europa.eu/eli/dir/2009/43/oj)
3
Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the
coordination of procedures for the award of certain works contracts, supply contracts and service
contracts by contracting authorities or entities in the fields of defence and security, and amending
Directives 2004/17/EC and 2004/18/EC (OJ L 216, 20.8.2009, p. 76–136,
ELI: http://data.europa.eu/eli/dir/2009/81/oj).
EN 4 EN
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
N/A
• Stakeholder consultations
The stakeholder consultation process was comprehensive, comprising a public survey that
was open until 22 April 2025, as well as a series of targeted meetings with Member States,
relevant business representatives from the Union, and other key stakeholders. Through this
consultation process, combined with the Commission's experience in implementing the
relevant legislation, key blockages and challenges within the EU regulatory environment were
identified. Based on valuable input received and the Commission’s expertise, the proposals
outlined in this directive aim to address these key issues and improve the overall effectiveness
of the EU regulatory framework.
• Collection and use of expertise
The proposed measures have been identified following a process of internal scrutiny of
existing legislation and based on the experience from implementation of the related
legislation. Since this is a step in the process of continuous assessment of the needs of defence
readiness capabilities arising from Union legislation, the scrutiny of such burden and of its
impact on stakeholders will continue.
Impact assessment
The European Council, in its Conclusions of 20 March 2025, called on the Commission to
accelerate the “work on all strands to decisively ramp up Europe’s defence readiness within
the next five years” and called on the Commission to rapidly follow up with simplification on
security and defence. Due to the urgent nature of the proposal, which is designed to support
the rapid adaptation of the European defence industry to the new geopolitical environment
and provide assistance to a country at war as of beginning of 2023, it was not possible to
deliver an impact assessment in the timeframe available to table the Defence Readiness
Omnibus. Within 3 months after the adoption of this proposal the Commission will present a
Staff Working document to present the justification for this legislative action and explain its
appropriateness to achieve the identified policy objectives in accordance with the relevant
Better Regulations rules.
The proposal concerns limited and targeted changes of legislation. They are based on
experience from implementing legislation. The changes do not have significant impact on the
policy but only ensure a more efficient and effective implementation. Their targeted nature
and the lack of relevant policy options make an impact assessment not necessary. However,
the attached Communication looks at elements on the impact of such measures, including the
analysis of results of an EU public survey undertaken in this context.
• Regulatory fitness and simplifications
This is a REFIT proposal, aiming to simplify legislation and cut burdens for stakeholders.
Fundamental rights
N/A
EN 5 EN
4. BUDGETARY IMPLICATIONS
N/A
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
N/A
• Explanatory documents (for directives)
N/A
• Detailed explanation of the specific provisions of the proposal
For Directive 2009/43/EC
• The cases where Member States may provide for exemptions from prior
authorisation for transfers of defence-related products will be extended to include
transfers necessary for the implementation of projects funded by EU defence
industrial programmes, transfers in the framework of structured cross-border
industrial partnerships, transfers to EU institutions and bodies and the European
Defence Agency, and transfers in case of an emergency resulting from a crisis.
• The Commission will be given the power to define certain non-essential elements of
the transfer framework via the adoption of delegated acts.
• The general transfer licence will be extended to cover transfers by certified entities,
in addition to transfer to certified European defence undertakings.
• Member States will be required to enable the possibility to introduce General
Transfer Licences other than those listed in Article 5(2).
• General Transfer Licences will be introduced for EU defence industrial projects,
such as the European Defence Fund (EDF), to cover all defence-related products and
all transfers necessary for the implementation of the project.
• Modification of the provision on information to be provided by suppliers of defence-
related products to provide them with the required flexibility, while maintaining
transparency and control.
For Directive 2009/81/EC
• The thresholds of Directive 2009/81/EC will be raised to enable Member States to
focus on critical contracts and reduce the administrative burden on the industry for
smaller procurement procedures.
• The open procedure and dynamic purchasing system, based on Directive 2014/24 are
introduced to enhance the range of tools at the disposal of the Member States.
• The innovation partnership procedure: a modified and more flexible innovation
partnership procedure will be introduced, based on Directive 2014/24, to support the
procurement of innovative solutions.
EN 6 EN
• Simplified procedure for procurement of results of competitive parallel research and
development projects: a simplified procedure will be introduced for the direct
procurement of innovative products or services that result from competitive parallel
research and development projects.
• A temporary derogation will be introduced to allow Member States to use the
negotiated procedure without prior publication for common procurements, including
off-the-shelf procurement. This will be available for procurement of identical
defence products or products subject only to minor modifications conducted by at
least three Member States.
• The provisions related to Member States joining cooperative programmes based on
R&D after the end of the R&D phase will be codified in Directive 2009/81/EC.
• The rules governing framework procurement agreements will be clarified, and the
maximum duration of a framework agreement will be extended from 7 to 10 years.
• The statistical reporting obligations related to defence procurement will be reduced
to ease the administrative burden for Member States.
EN 7 EN
2025/0177 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Directives 2009/43/EC and 2009/81/EC, as regards the simplification of intra-
EU transfers of defence-related products and the simplification of security and defence
procurement
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 53(2), Article 62, and Article 114 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1) The Union is facing an acute and growing threat, as underscored in the White Paper on
European Defence Readiness 20304
, linked in particular to the return of full-scale
conflict in Europe. In response to the escalating security challenges, it is imperative
that the Union takes decisive action to bolster its defence capabilities. A crucial aspect
of this effort is the need to ramp up the Union’s defence production capacity in the
Union, enabling it to respond effectively to emerging security demands. There is
urgency to ramp up European defence readiness to ensure that the Union has a strong
and sufficient European defence posture by 2030 at the latest.
(2) To achieve the goal of increasing the defence readiness of the Member States and the
Union, regulatory simplification and harmonisation are essential. By streamlining and
aligning regulatory frameworks, the Union can create a more conducive environment
for defence industries to operate, innovate, and produce the necessary capabilities to
ensure European security and defence readiness. The Joint White Paper on European
Defence Readiness 20305
outlined the objectives for this simplification of legislation
impacting the defence readiness.
(3) Transfers of defence-related products within the Union are subject to prior
authorisation through general, global or individual transfer licences granted or
published by the Member State from whose territory the supplier wishes to transfer
defence-related products. Member States may exempt transfers of defence-related
products from the obligation of prior authorisation in specific cases listed in Directive
2009/43/EC of the European Parliament and of the Council6
. Taking into account the
developments in the security situation and the introduction of Union defence industrial
4
JOIN(2025) 120 final, 19 March 2025.
5
Joint White Paper for European Defence Readiness 2030: JOIN/2025/120 final, 19.03.2025.
6
Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms
and conditions of transfers of defence-related products within the Community (OJ L 146, 10.6.2009, p.
1, ELI: http://data.europa.eu/eli/dir/2009/43/oj).
EN 8 EN
programmes, aimed in particular at reinforcing cross-border cooperation within the
Union, it is appropriate to extend the list of cases in which Member States may exempt
transfers from prior authorisation. In particular, such possibility should be provided in
relation to transfers necessary for the implementation of projects funded by Union
defence industrial programmes, transfers in the framework of structured cross-border
industrial partnerships, transfers to Union institutions and bodies and to the European
Defence Agency, transfers in case of an emergency resulting from a crisis and
transfers linked to military and defence assistance resulting from Union actions under
Article 28 of the Treaty on the European Union. .
(4) A well-functioning transfer system across Member States is a prerequisite of a Union-
wide market for defence. The quickly evolving security landscape requires additional
flexibility allowing the Commission and Member States to react in a targeted and agile
way. Therefore, the Commission should be empowered to adopt delegated acts in
accordance with Article 290 of the Treaty on the Functioning of the European Union
to define certain non-essential elements of the transfer framework. Such delegated acts
could define a harmonized approach for the implementation of Article 4(8), such as by
defining ‘sensitive’ components or by introducing a de minimis rule. Furthermore, it is
appropriate to empower the Commission, either upon request of a Member State or on
its own initiative, to add new cases where Member States would be enabled to
introduce exemptions from the obligation of prior authorisation, thereby allowing for
increased flexibility and potential for simplified and accelerated intra-Union transfers
of defence-related products.
(5) Furthermore, for the same reasons as those set out in recital 4, the power to adopt acts
in accordance with Article 290 of the Treaty on the Functioning of the European
Union should be delegated to the Commission to define harmonised conditions for the
Member States to determine which type of transfer licence should be applied to
specific defence-related products or categories of defence-related products.
(6) To ensure the effective and efficient functioning of the intra-Union transfer regime,
Member States should ensure that all suppliers wishing to transfer defence-related
products from their territory may use general transfer licences or apply for global or
individual transfer licences. Any pre-conditions that may be imposed by Member
States should be based only on criteria of direct relevance for the suppliers’ ability to
respect the legislation in the field of transfer and export control. Criteria, such as the
suppliers’ legal form or status, cannot deny the possibility for some categories of
suppliers to use general transfer licences or to apply for global or individual transfer
licences.
(7) To foster the uptake of certification by recipients and to facilitate cross-border
collaboration and openness of supply chains within the Union, it is appropriate to
extend the general transfer licence for transfers to certified recipients so that it also
covers transfers by certified entities. Such undertakings have demonstrated strong
capacity to comply with transfer and export control rules and have also supported
important costs to achieve certification. They should be allowed to benefit from
simplified and less burdensome possibilities to perform intra-Union transfers.
(8) As stipulated in Article 1(2) of Directive 2009/43/EC, that Directive does not affect
the discretion of Member States as regards policy on the export of defence-related
products.
(9) Directive 2009/43/EC provides that Member States may introduce general transfer
licences other than those listed in Article 5(2) of that Directive. However, that
EN 9 EN
possibility may be hampered by national rules limiting flexibility and the capacity of
national controlling authorities to take full advantage of the instruments introduced by
Directive 2009/43/EC. For instance, additional types of general transfer licences could
concern transfers necessary for the implementation of projects funded by Union
defence industrial programmes, intra-group transfers or transfers in case of urgency
resulting from a crisis. It is thus appropriate to require Member States to enable, in
their national legislation, the introduction of general transfer licences other than those
listed in Article 5(2) of Directive 2009/43/EC.
(10) The implementation of Union defence industrial programmes, such as the EDF, is
often hindered by significant delays in the transfer of defence-related products, due to
the lengthy and complex processes of obtaining transfer licences by Member States.
Those delays can have a detrimental impact on the overall efficiency and effectiveness
of these programmes and can undermine the ability of the Union and its Member
States to develop and acquire the defence capabilities they need in a timely and cost-
effective manner. To address this issue, it is necessary to introduce general transfer
licences for these programmes. The scope of these general transfer licences should
cover all defence-related products set out in the Annex to Directive 2009/43/EC and
should also cover all the transfers, whether tangible or intangible, that the supplier has
to perform for the implementation of the project. Member States could also provide
that such licences could apply to the entire life cycle of the product developed in a
given project, including production, maintenance and upgrade phases. The
introduction of such general transfer licences would reduce delays, increase efficiency
and facilitate collaboration between undertakings participating in these projects,
thereby supporting the development of a strong and competitive Union defence
industry. The terminology used in that context should be understood to be identical
with that of a Model Grant Agreement7
for Union defence programmes.
(11) Additionally, taking account of the technological evolution, it is necessary to adapt the
rules on the information to be provided by suppliers of defence-related products, as the
current provisions may prove burdensome in case of non-tangible technology
transfers. It is appropriate to provide suppliers with the required flexibility while
maintaining transparency and control, in order to facilitate the efficient and effective
transfer of defence products within the Union. The need for the modification of the
information requirement for non-tangible technology transfers requires a case-by-case
assessment. Therefore, Member States should be given the possibility to apply such
information requirements only as far as their application does not result in overly
burdensome reporting obligations for the suppliers.
(12) It is of particular importance that the Commission carries out appropriate consultations
during its preparatory work, including at expert level, and that those consultations be
conducted in accordance with the principles laid down in the Interinstitutional
Agreement of 13 April 2016 on Better Law-Making8
. In particular, to ensure equal
participation in the preparation of delegated acts, the European Parliament and the
Council receive all documents at the same time as Member States' experts, and their
experts systematically have access to meetings of Commission expert groups dealing
with the preparation of delegated acts.
7
The EDF Model Grant Agreement is available on the Commission website:
https://ec.europa.eu/info/funding-tenders/opportunities/docs/2021-2027/edf/agr-contr/mga_edf_v1.0-
01052023_en.pdf
8
OJ L 123, 12.5.2016, p. 1, ELI: http://data.europa.eu/eli/agree_interinstit/2016/512/oj.
EN 10 EN
(13) To the extent that this Directive amends Directive 2009/43/EC, the appropriate legal
basis, in so far as those amendments are concerned, is Article 114 of the Treaty.
(14) To develop the necessary capabilities and military readiness to credibly deter armed
aggression and secure the Union’s future, a massive increase in European defence
investment is needed. Based on projections of gradual take-up, defence investment
could reach at least EUR 800bn over the next four years, including the expenditure
financed by the EUR 150bn from the Security and Action for Europe (SAFE)
instrument established by Council Regulation (EU) 2025/11069
. Those significant
investments in defence by Member States involve substantial public procurement. It is
therefore appropriate to simplify certain provisions of Directive 2009/81/EC of the
European Parliament and of the Council10
, which governs the procurement of defence
and sensitive security works, goods and services, while maintaining a well-functioning
Union-wide market for defence. Member States should be provided with both the
flexibility to rapidly replenish their stocks and the ability to do so in a sustainable
manner, which can best be achieved by fully exploiting the potential of the internal
market. By streamlining the defence procurement rules in the Union, Member States
should have the necessary agility to respond to emerging security needs, while also
promoting a competitive and integrated European defence market to support their
long-term defence capabilities.
(15) To achieve that goal, it is necessary to raise the threshold amounts for contracts
covered by Directive 2009/81/EC. This adjustment would enable Member States to
focus their resources on the most critical contracts, allowing for more effective
allocation of their procurement budgets. At the same time, it would ease the
administrative burden on the industry for smaller procurement procedures, which will
help to reduce the regulatory complexity and costs associated with those contracts.
(16) Furthermore, Member States should be given the flexibility to profit from all available
tools related to public procurement. In order to increase the number of ways
contracting authorities/entities can carry out public procurement, the possibility to use
the open procedure and the dynamic purchasing system should be added. Those two
procedures are based on the ones provided for in Directive 2014/24/EU of the
European Parliament and of the Council11
.
(17) There is urgency for the Union to mobilise its overall innovation capacity and direct
significant investments to regaining edge and prevent being technologically
dependent. Directive 2009/81/EC should also be adapted to better support the
procurement of innovation, to ensure that the significant investments made by Member
States to increase their defence readiness is future-proof and yields long-term benefits.
By facilitating the procurement of innovative defence solutions, the Union could
encourage the development of cutting-edge technologies and capabilities, ultimately
9
Council Regulation (EU) 2025/1106 of 27 May 2025 establishing the Security Action for Europe
(SAFE) through the Reinforcement of the European Defence Industry Instrument (OJ L, 2025/1106,
28.5.2025, ELI: http://data.europa.eu/eli/reg/2025/1106/oj).
10
Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the
coordination of procedures for the award of certain works contracts, supply contracts and service
contracts by contracting authorities or entities in the fields of defence and security, and amending
Directives 2004/17/EC and 2004/18/EC (OJ L 216, 20.8.2009, p. 76, ELI:
http://data.europa.eu/eli/dir/2009/81/oj).
11
Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public
procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65–242, ELI:
http://data.europa.eu/eli/dir/2014/24/oj).
EN 11 EN
transforming defence through disruptive innovation and enhancing the effectiveness
and resilience of its defence systems. To better support the procurement of research
and development and innovative solutions a modified and more flexible innovation
partnership procedure based on Directive 2014/24/EU, should be introduced in
Directive 2009/81/EC. A simplified procedure for direct procurement of innovative
products and services resulting from competitive parallel research and development
projects should also be added. That would allow Member States to stay at the forefront
of defence technology, while also promoting collaboration and competition among
indFustry partners. The benefits of this approach include faster access to innovative
solutions, reduced development risks and increased cost-effectiveness, ultimately
leading to enhanced defence capabilities and a more competitive European Defence
Technological and Industrial Base (EDTIB).
(18) To provide Member States with the necessary flexibility in responding to emerging
security challenges, it is essential to introduce a limited in time possibility to use the
negotiated procedure without prior publication for common procurements, including
off-the-shelf procurement. That temporary derogation would enable Member States to
quickly acquire the defence capabilities they need, while also allowing for a degree of
flexibility in procurement procedures, thereby supporting the rapid replenishment of
their stocks and the enhancement of their defence readiness. Furthermore, allowing
Member States to procure identical defence products or products subject only to minor
modifications, including common maintenance, contributes to deepening the
interoperability and interchangeability of Member States’ armed forces’ equipment,
further strengthening the Union’s defence readiness and enhancing the security of
supply.
(19) There is a need for more and better collaborative investment, from research to
development of complex systems, through commercialisation to procurement, with a
view to increasing the Union’s technological sovereignty. Common procurement by
Member States is key to improve efficiency, effectiveness and interoperability of
defence capabilities, thereby contributing to a stronger and more cohesive European
defence. Building on the 2019 Commission notice on guidance on cooperative
procurement in the fields of defence and security12
, it is necessary to lay down
provisions related to Member States joining cooperative programmes based on
research and development after the end of the research and development phase for the
later phases of the life cycle. In addition, and in order to support the later phases of the
life cycle of Union-funded defence research and development programmes, it is
necessary to clarify that Member States can benefit from the exclusion for cooperative
programmes based on research and development under the same conditions also for
projects funded under defence research and development programmes, such as the
EDF. This would provide the necessary legal certainty and ensure that the flexibility
enabled through the exclusion will support the continuation of EDF projects under a
cooperative framework even after the completion of the research and development
phase. It would also clarify that Member States joining after the research and
development phase as genuine participants in the cooperative programme will also
benefit from the exclusion.
12
Commission notice on guidance on cooperative procurement in the fields of defence and security (OJ C
157, 8.5.2019, p. 1–9).
EN 12 EN
(20) To further support the common procurement and ensure legal certainty, it is necessary
to lay down rules in Directive 2009/81/EC on procurement involving contracting
authorities/entities from different Member States.
(21) To provide Member States with greater predictability and stability in their defence
procurement planning, it is necessary to modify the rules governing framework
agreements. Notably, to reflect the specificities of the defence sector, it is necessary to
extend the maximum possible duration of framework agreements to ten years,
allowing Member States to establish longer-term partnerships with industry and plan
their defence procurement needs with greater certainty, while also ensuring that the
Union's defence procurement rules remain flexible and adapted to the specific needs of
the defence sector.
(22) Directive 2009/81/EC should also reflect relevant case law of the Court of Justice of
the European Union and align with the provisions of Directive 2014/24/EU regarding
the modification of contracts. In particular, the rules on the modification of the
framework agreement should be applied in the same way in Directive 2009/81/EC as
in Directive 2014/24/EU.
(23) To reduce the administrative burden on Member States, the statistical reporting
obligations related to defence procurement should be decreased, allowing national
authorities to focus on the implementation of their defence policies and the efficient
use of their resources. To the extent that this Directive amends Directive 2009/81/EC
the appropriate legal basis, in so far as those amendments are concerned, is Article
53(2), Article 62 and Article 114 of the Treaty.
(24) Directives 2009/43/EC and 2009/81/EC should therefore be amended accordingly,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Amendments to Directive 2009/43/EC
Directive 2009/43/EC is amended as follows:
(1) in Article 3, the following point 8 is added:
‘8. ‘crisis’ means crisis as defined in Article 1, point (10) of Directive 2009/81/EC of
the European Parliament and of the Council*’;
___________________________
*Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the
coordination of procedures for the award of certain works contracts, supply contracts and service
contracts by contracting authorities or entities in the fields of defence and security, and amending
Directives 2004/17/EC and 2004/18/EC (OJ L 216, 20.8.2009, p. 76, ELI:
http://data.europa.eu/eli/dir/2009/81/oj).’;
(2) Article 4 is amended as follows
(a) paragraph 2 is replaced by the following:
‘2. Notwithstanding paragraph 1, Member States may exempt transfers of defence-
related products from the obligation of prior authorisation set out in that paragraph in
one of the following cases:
(a) the supplier or the recipient is a governmental body or part of the armed forces;
(aa) the recipient is a Union institution, Union body, or the European Defence
Agency;
EN 13 EN
(b) supplies are made by the Union, NATO, IAEA or other intergovernmental
organisations for the performance of their tasks;
(c) the transfer is necessary for the implementation of a collaborative armament
programme between Member States;
(ca) the transfer is necessary for the implementation of a project funded under a
Union defence industrial programme;
(cb) the transfer takes place in the framework of a structured cross-border industrial
partnership;
(cc) the transfer takes place in an urgency resulting from a crisis;
(d) the transfer is linked to humanitarian aid in the case of disaster or as a donation in
an emergency;
(da) the transfer is linked to military and defence assistance resulting from Union
actions under Article 28 of the Treaty on the European Union where the Council
decides unanimously, pursuant to Article 41(2) of the Treaty on the European Union;
(e) the transfer is necessary for or after repair, maintenance, exhibition or
demonstration.’;
(b) paragraph 3 is replaced by the following:
‘3. The Commission is empowered to adopt delegated acts to supplement this
Directive in accordance with Article 13a, at the request of a Member State or on its
own initiative, amending paragraph 2, in order to include additional cases where :
(a) the transfer takes place under conditions which do not affect public policy or
public security;
(b) the obligation of prior authorisation has become incompatible with international
commitments of the Member States subsequent to the adoption of this Directive;
(c) it is necessary for intergovernmental cooperation, as referred to in Article 1(4);
(d) the transfer is necessary for cross-border cooperation;’
(c) paragraph 4 is replaced by the following:
‘4. Member States shall ensure that suppliers wishing to transfer defence-related
products from their territory may use general transfer licences or apply for global or
individual transfer licences in accordance with Articles 5, 6 and 7. No pre-conditions
shall be imposed, that would have the effect of preventing suppliers from using
general transfer licences or applying for global or individual transfer licences, on the
basis of criteria that are not connected to their capacity to perform their obligations in
the fields of transfer and export control.’
(d) the following paragraph 8a is inserted:
‘8a. The Commission is empowered to adopt delegated acts in accordance with
Article 13a, at the request of a Member State or on its own initiative, in order to
determine harmonised conditions for the application of paragraphs 5 and 8 of this
Article’.
(3) Article 5 is amended as follows:
(a) paragraph 2 is amended as follows:
(i) point (b) is replaced by the following:
EN 14 EN
‘(b) the recipient or the supplier is an undertaking certified in accordance with
Article 9;’;
(ii) the following point (e) is inserted:
‘(e) the publication is required by Article 5a.’;
(b) the following paragraphs 2a and 2b are inserted:
‘2a. Member States shall provide in their legislation the possibility to introduce
general transfer licences other than those referred to in Article 5(2).
2b. The Commission is empowered to adopt delegated acts to supplement this
Directive in accordance with the procedure laid down at Article 13a, in order to
harmonise the minimum scope of the general transfer licences referred to in Article
5(2).’;
(4) the following Article 5a is inserted:
‘Article 5a
Licences for transfers necessary for the implementation of projects funded under Union
defence industrial programmes
1. Member States shall publish general transfer licences for transfers necessary for the
implementation of projects funded under a Union defence industrial programme. Those
licences shall apply to all defence-related products and shall cover all transfers necessary
for the implementation of the project.
2. Member States may provide that the licencing system referred to in paragraph 1 applies
also to the later phases of the life cycle of the projects occurring after the stages funded
under a Union defence industrial programme.
3. Member States shall not require any additional commitment, such as certificates related
to end-use or limitations to the export of the defence-related products, if a funding
agreement or contract concluded under a Union defence industrial programme contains a
commitment that the defence-related products linked to the implementation of a given
project will not be shared without authorisation, beyond the participants to the funding
agreement or parties to the contract in question, the funding or contracting authority, or
where relevant, the Commission when it is not the funding or contracting authority and
the Court of Auditors as referred to in paragraph 4.
4. The funding agreement or contract may define the modalities under which the defence-
related products linked to the implementation of a given project can be transferred to the
Court of Auditors when the participants, the funding or contracting authorities, or where
relevant, the Commission when it is not the funding or contracting authority are legally
required to do so.’;
(5) in Article 8, the following paragraph 3a is inserted:
‘3a. The provisions of this Article, in particular Article 8(3), points (b) and (c),
accordingly, shall apply to non-tangible technology transfers only as far as their
application does not result in disproportionate reporting obligations for the
suppliers.’;
(6) Article 13a is amended as follows:
(a) the following paragraph 2a is inserted:
‘2a. The power to adopt delegated acts referred to in Article 4(8a) shall be
conferred on the Commission for a period of five years from [date of the
EN 15 EN
adoption of the amending directive]. The Commission shall draw up a report in
respect of the delegation of power not later than nine months before the end of
the five-year period. The delegation of power shall be tacitly extended for
periods of an identical duration, unless the European Parliament or the Council
opposes such extension not later than three months before the end of each
period.’;
(b) paragraph 3 is replaced by the following:
‘3. The delegation of power referred to in Article 4(3), Article 4(8a) or Article
13 may be revoked at any time by the European Parliament or by the Council.
A decision to revoke shall put an end to the delegation of the power specified
in that decision. It shall take effect the day following the publication of the
decision in the Official Journal of the European Union or at a later date
specified therein. It shall not affect the validity of any delegated acts already in
force.’;
(c) paragraph 6 is replaced by the following:
‘6. A delegated act adopted pursuant to Article 4(3), Article 4(8a) or Article 13
shall enter into force only if no objection has been expressed either by the
European Parliament or the Council within a period of three months of
notification of that act to the European Parliament and the Council or if, before
the expiry of that period, the European Parliament and the Council have both
informed the Commission that they will not object. That period shall be
extended by two months at the initiative of the European Parliament or of the
Council.’.
Article 2
Amendments to Directive 2009/81/EC
Directive 2009/81/EC is amended as follows:
(1) Article 1 is amended as follows:
(a) points 15 and 16 are replaced by the following:
’15. ‘Candidate’ means an economic operator which has sought an invitation to
take part in a restricted or negotiated procedure, competitive dialogue, or an
innovation partnership;
16. ‘Tenderer’ means an economic operator which has submitted a tender
under an open procedure, a restricted or negotiated procedure, competitive
dialogue, or an innovation partnership;’;
(b) the following points 17a and 17b are inserted:
‘17a. ’Centralised purchasing activities’ means activities conducted on a
permanent basis, in one of the following forms:
(a) the acquisition of supplies and/or services intended for contracting
authorities/entities,
(b) the award of public contracts or the conclusion of framework agreements
for works, supplies or services intended for contracting authorities/entities;’
EN 16 EN
17b. ‘Ancillary purchasing activities’ means activities consisting in the
provision of support to purchasing activities, in particular in the following
forms:
(a) technical infrastructure enabling contracting authorities/entities to award
public contracts or to conclude framework agreements for works, supplies or
services;
(b) advice on the conduct or design of public procurement procedures;
(c) preparation and management of procurement procedures on behalf and for
the account of the contracting authority/entity concerned;’;
(c) point 18 is replaced by the following:
’18. ‘Central purchasing body’ means a contracting authority/entity providing
centralised purchasing activities and, possibly, ancillary purchasing activities;’;
(d) the following point 18 a is inserted:
’18a. ‘Open procedure’ means a procedure in which any interested economic
operator may submit a tender;’;
(e) the following point 21a is inserted:
‘21a. ‘Dynamic purchasing system’ means a completely electronic process for
making commonly used purchases, the characteristics of which, as generally
available on the market, meet the requirements of the contracting authority,
which is limited in duration and open throughout its validity to any economic
operator which satisfies the selection criteria and has submitted an indicative
tender that complies with the specification.’;
(f) the following point 29 is added:
’29. ‘maintenance’ means all actions taken to ensure the readiness and
operational capability of a defence product, in particular to retain equipment in
or to restore it to specified conditions until the end of its use, including mission
readiness, longevity and upgrades, customisation and specialisation, inspection,
overhaul, testing, servicing, modifications, classification as to serviceability,
repair, recovery, rebuilding, reclamation, salvage and cannibalisation.’;
(2) Article 8 is amended as follows:
(a) in point (a), ‘EUR 443 000’ is replaced by ‘EUR 900 000’;
(b) in point (b), ‘EUR 5 538 000’ is replaced by ‘EUR 7 000 000’;
(3) Article 9 is amended as follows:
(a) paragraph 9 is replaced by the following:
‘9. With regard to framework agreements and dynamic purchasing systems, the
estimated value to be taken into consideration shall be the maximum estimated
value, net of VAT, of all the contracts envisaged for the total term of the
framework agreement or the dynamic purchasing system.’;
(b) the following paragraph 10 is added:
’10. In the case of innovation partnerships, the value to be taken into
consideration shall be the maximum estimated value net of VAT of the
research and development activities to take place during all stages of the
EN 17 EN
envisaged partnership as well as of the supplies, services or works to be
developed and procured at the end of the envisaged partnership.’;
(4) Article 10 is replaced by the following:
‘Article 10
Contracts and framework agreements awarded by central purchasing bodies
1. Member States may provide that contracting authorities/entities may acquire works,
supplies and/or services from or through a central purchasing body.
Member States may also provide that contracting authorities/entities may acquire works,
supplies and services by using contracts awarded by a central purchasing body, by using
dynamic purchasing systems operated by a central purchasing body or, to the extent set
out in Article 29(2), second subparagraph, by using a framework agreement concluded
by a central purchasing body offering the centralised purchasing activity. Where a
dynamic purchasing system which is operated by a central purchasing body may be used
by other contracting authorities/entities, this shall be mentioned in the call for
competition setting up that dynamic purchasing system.
In relation to the first and second subparagraphs, Member States may provide that certain
procurements are to be made by having recourse to central purchasing bodies or to one or
more specific central purchasing bodies.
2. Contracting authorities/entities which purchase works, supplies and/or services from or
through a central purchasing body shall be deemed to have complied with this Directive
insofar as:
(a) the central purchasing body has complied with it, or,
(b) when the central purchasing body is not a contracting authority/entity, the
contract award rules applied by it comply with this Directive and the
contracts awarded can be subject to efficient remedies comparable to
those provided for in Title IV.
Furthermore, a contracting authority/entity shall be deemed to have also fulfilled its
obligations pursuant to this Directive where it acquires works, supplies or services by
using contracts awarded by the central purchasing body, by using dynamic purchasing
systems operated by the central purchasing body or, to the extent set out in Article 29(2),
second subparagraph, by using a framework agreement concluded by the central
purchasing body.
However, the contracting authority/entity concerned shall be responsible for fulfilling the
obligations pursuant to this Directive in respect of the parts it conducts itself, in
particular:
(a) awarding a contract under a dynamic purchasing system, which is
operated by a central purchasing body;
(b) conducting a reopening of competition under a framework agreement that
has been concluded by a central purchasing body;
(c) pursuant to Article 29(4), determining which of the economic operators,
party to the framework agreement, shall perform a given task under a
framework agreement that has been concluded by a central purchasing
body.
EN 18 EN
3. Contracting authorities/entities may, without applying the procedures provided for in this
Directive, award a public service contract for the provision of centralised purchasing
activities to a central purchasing body.
Such public service contracts may also include the provision of ancillary purchasing
activities.’;
(5) the following Article 10a is inserted:
‘Article 10a
Procurement involving contracting authorities/entities from different Member States
1. Contracting authorities/entities from different Member States may act jointly in the
award of public contracts in accordance with this Article.
Contracting authorities/entities shall not use the provisions of this Article for the purpose
of avoiding the application of mandatory public law provisions in conformity with Union
law to which they are subject in their Member State.
2. A Member State shall not prohibit its contracting authorities/entities from using
centralised purchasing activities offered by central purchasing bodies located in another
Member State or from offering centralised purchasing activities to contracting
authorities/entities located in another Member State.
In respect of centralised purchasing activities offered by a central purchasing body
located in another Member State than the contracting authority/entity, Member States
may specify that their contracting authorities/entities may only use the centralised
purchasing activities as defined in Article 1(17b)(a) or (b).
3. The provision of centralised purchasing activities by a central purchasing body located in
another Member State shall be conducted in accordance with the national provisions of
the Member State where the central purchasing body is located.
The national provisions of the Member State where the central purchasing body is
located shall also apply to the award of a contract under a dynamic purchasing system
and the conduct of a reopening of competition under a framework agreement.
4. Several contracting authorities/entities from different Member States may jointly award a
public contract, conclude a framework agreement or operate a dynamic purchasing
system. They may also, to the extent set out in Article 29(2), second subparagraph,
award contracts based on the framework agreement or on the dynamic purchasing
system.
Unless the necessary elements have been regulated by an international agreement
concluded between the Member States concerned, the participating contracting
authorities/entities shall conclude an agreement that determines:
(a) the responsibilities of the parties and the relevant applicable national provisions;
(b) the internal organisation of the procurement procedure, including the management of
the procedure, the distribution of the works, supplies or services to be procured, and the
conclusion of contracts.
A participating contracting authority/entity shall be deemed to have fulfilled its
obligations pursuant to this Directive when it purchases works, supplies or services from
a contracting authority/entity which is responsible for the procurement procedure. When
determining responsibilities and the applicable national law as referred to in the second
subparagraph, point (a), the participating contracting authorities/entities may allocate
EN 19 EN
specific responsibilities among them and determine the applicable national provisions of
any of their respective Member States. The allocation of responsibilities and the
applicable national law shall be referred to in the procurement documents for jointly
awarded public contracts.
5. Where several contracting authorities/entities from different Member States have set up a
joint entity established under Union law, the participating contracting authorities/entities
shall, by a decision of the competent body of the joint entity, agree on the applicable
national procurement rules of one of the following Member States:
(a) the national provisions of the Member State where the joint entity has its registered
office;
(b) the national provisions of the Member State where the joint entity is carrying out its
activities.
The agreement referred to in the first subparagraph may either apply for an undetermined
period, when fixed in the constitutive act of the joint entity, or may be limited to a certain
period of time, certain types of contracts or to one or more individual contract awards.’;
(6) in Article 13, points (c) and (d) are replaced by the following:
‘(c) contracts awarded in the framework of a cooperative programme based on
research and development, conducted jointly by at least two Member States for the
development of a new product or an upgrade leading to substantial changes or
substantial improvements of an existing product and, where applicable, the later
phases of all or part of the life-cycle of this product. Where a Member State becomes
a full member of a cooperative programme after the completion of the research and
development phase of that programme, for the later phases of the life-cycle of the
product, this Article shall apply to the joining Member State. A research and
development project managed by Union institutions or bodies and, implemented in
accordance with Union rules and funded from the Union budget, constitutes a
cooperative programme conducted jointly by at least two Member States and can be
continued for the phases after research and development phase, in which case
contracts awarded in the framework of the follow-up programme may also be
excluded under this Article;
(d) contracts awarded in a third country, including for civil purchases, carried out
when forces are deployed or are in training outside the territory of the Union where
operational needs require them to be concluded with economic operators located in
the area of operations;’;
(7) in Article 25, the second and third paragraphs are replaced by the following:
‘Contracting authorities/entities may choose to award contracts by applying the open
procedure, the restricted procedure or the negotiated procedure with publication of a
contract notice.
Under the circumstances referred to in Article 27 or Article 27a, they may award
contracts by means of a competitive dialogue or an innovation partnership.’;
(8) in Article 27, paragraph 1 is replaced by the following:
‘1. In the case of particularly complex contracts, Member States may provide that
where contracting authorities/entities consider that use of the open procedure, the
restricted procedure or the negotiated procedure with publication of a contract notice
EN 20 EN
will not allow the award of the contract, those contracting authorities/entities may
make use of the competitive dialogue in accordance with this Article.
A contract shall be awarded on the sole basis of the award criterion for the most
economically advantageous tender.’;
(9) the following Article 27a is inserted:
‘Article 27a
Innovation partnership
1. Any economic operator may submit a request to participate in innovation partnership
following a contract notice by providing the information for qualitative selection that is
requested by the contracting authority/entity.
In the procurement documents, the contracting authority/entity shall identify the need for
an innovative product, service or works that cannot be met by purchasing products,
services or works already available on the market. It shall indicate which elements of this
description represent indicative minimum requirements that all tenders should meet. The
information provided shall be sufficiently precise to enable economic operators to
identify the nature and scope of the required solution and decide whether to request to
participate in the procedure.
The contracting authority/entity may decide to set up the innovation partnership with one
partner or with several partners conducting separate research and development activities.
The minimum time limit for receipt of requests to participate shall be 30 days from the
date on which the contract notice is sent. The contracting authority/entity shall assess the
information provided by the economic operators and shall invite the suitable candidates
to participate in the procedure. Contracting authorities/entities may limit the number of
suitable candidates to be invited to participate in the procedure. The contracts shall be
awarded on the sole basis of the award criterion of the best price-quality ratio in
accordance with Article 47.
2. The innovation partnership shall aim at the development of an innovative product,
service or works and the subsequent purchase of the resulting supplies, services or
works, provided that they correspond to the performance levels and maximum costs
agreed between the contracting authorities/entities and the participants.
The innovation partnership shall be structured in successive phases following the
sequence of steps in the research and innovation process, which may include the
manufacturing of the products, the provision of the services or the completion of the
works. The innovation partnership shall set intermediate targets which should be attained
by the partners and provide for payment of the remuneration in appropriate instalments.
Based on those targets, the contracting authority/entity may decide after each phase to
terminate the innovation partnership or, in the case of an innovation partnership with
several partners, to reduce the number of partners by terminating individual contracts,
provided that the contracting authority/entity has indicated in the procurement
documents those possibilities and the conditions for their use.
3. Unless otherwise provided for in this Article, contracting authorities/entities shall
negotiate with tenderers the initial and all subsequent tenders submitted by them, except
for the final tender, to improve the content thereof.
The minimum requirements and award criteria shall not be subject to negotiations.
EN 21 EN
4. During the negotiations, contracting authorities/entities shall ensure the equal treatment
of all tenderers. To that end, they shall not provide information in a discriminatory
manner which may give some tenderers an advantage over others. They shall inform all
tenderers whose tenders have not been eliminated, pursuant to paragraph 5, in writing of
any changes to the technical specifications or other procurement documents. Following
those changes, contracting authorities/entities shall provide sufficient time for tenderers
to modify and re-submit amended tenders, as appropriate.
In accordance with Article 6, contracting authorities/entities shall not reveal to the other
participants confidential information communicated by a candidate or tenderer
participating in the negotiations without its agreement. Such agreement shall not take the
form of a general waiver but shall be given with reference to the intended
communication of specific information.
5. Negotiations during innovation partnership procedures may take place in successive
stages in order to reduce the number of tenders to be negotiated by applying the award
criteria specified in the contract notice, in the invitation to confirm interest or in the
procurement documents. In the contract notice, the invitation to confirm interest or in the
procurement documents, the contracting authority/entity shall indicate whether it will use
that option. Before the end of an ongoing phase the contracting authority/entity may
specify the award criteria and the maximum costs to be used to select the tenders
participating in the following phase. Those award criteria and the maximum costs shall
be proportionate to the expected results of the ongoing phase and to the objectives of the
innovation partnership. In case a tenderer eliminated in a previous phase becomes
eligible for the following phase as a result of those award criteria and the maximum costs
such tenderer shall be invited to participate in the following phase.
6. In selecting candidates, contracting authorities/entities shall in particular apply criteria
concerning the candidates’ capacity in the field of research and development and of
developing and implementing innovative solutions.
Only those economic operators invited by the contracting authority/entity following its
assessment of the requested information may submit research and innovation projects
aimed at meeting the needs identified by the contracting authority/entity that cannot be
met by existing solutions.
In the procurement documents, the contracting authority/entity shall define the
arrangements applicable to intellectual property rights. In the case of an innovation
partnership with several partners, the contracting authority/entity shall not, in accordance
with Article 6, reveal to the other partners solutions proposed or other confidential
information communicated by a partner in the framework of the partnership without that
partner’s agreement. Such agreement shall not take the form of a general waiver but shall
be given with reference to the intended communication of specific information.
7. The contracting authority/entity shall ensure that the structure of the partnership and, in
particular, the duration and value of the different phases reflect the degree of innovation
of the proposed solution and the sequence of the research and innovation activities
required for the development of an innovative solution not yet available on the market.
The estimated value of supplies, services or works shall not be disproportionate in
relation to the investment required for their development.’;
(10) Article 28 is amended as follows:
(a) point (1) is replaced by the following:
‘(1) for works contracts, supply contracts and service contracts:
EN 22 EN
(a) when no tenders or no suitable tenders or no applications have been
submitted in response to an open procedure, a restricted procedure, a
negotiated procedure with prior publication of a contract notice, a competitive
dialogue or an innovation partnership, provided that the initial conditions of the
contract are not substantially altered and on condition that a report is sent to the
Commission, if it so requests;
(b) in the event of irregular tenders or the submission of tenders which are
unacceptable under national provisions compatible with Articles 5, 19, 21 to 24
and Chapter VII of Title II, in response to an open procedure, a restricted
procedure, a negotiated procedure with publication, a competitive dialogue or
an innovation partnership, insofar as:
(i) the original terms of the contract are not substantially altered, and
(ii) they include in the negotiated procedure all of, and only, the tenderers
which satisfy the criteria of Articles 39 to 46 and which, during the prior open
procedure restricted procedure, competitive dialogue or innovation partnership,
had submitted tenders in accordance with the formal requirements of the
tendering procedure;
(c) when the time-limits laid down for the open procedure, restricted procedure
and negotiated procedure with publication of a contract notice, including the
shortened time-limits referred to in Article 33(7), are incompatible with the
urgency resulting from a crisis. This may apply for instance in the cases
referred to in Article 23, second paragraph, point (d);
(d) insofar as is strictly necessary when, for reasons of extreme urgency
brought about by events unforeseeable by the contracting authorities/entities in
question, the time-limits for the open procedure, the restricted procedure or the
negotiated procedure with publication of a contract notice, including the
shortened time-limits as referred to in Article 33(7), cannot be complied with.
The circumstances invoked to justify extreme urgency must not in any event be
attributable to the contracting authority/entity;
(e) when, for technical reasons or reasons connected with the protection of
exclusive rights, the contract may be awarded only to a particular economic
operator;’;
(b) in point (2), the following point (c) is added:
‘(c) concluded after parallel competing research and development projects with
several economic operators procured by a contracting authority/entity
provided that all of the following conditions are fulfilled:
(i) the parallel competing research and development contracts have been awarded
by the contracting authority/entity procuring the products or services after a
negotiated procedure with prior publication of a contract notice, a restricted
procedure or an open procedure;
(ii) the products or services procured are the result of one of the research and
development contracts;
(iii) the value of the products or services does not exceed 10 times the value of the
research and development contract from which it results;
EN 23 EN
(iv) the contractors and their subcontractors are established, have their principal
place of business, and perform the research and development contract and the
supply contract using resources located in a Member State or in a an EEA
EFTA state;
(v) the executive management structures of the contractors and their
subcontractors are established in the Union, in an EEA EFTA State, or in
Ukraine;
(vi) the contractors and the subcontractors are not subject to control by a third
country which is not an EEA EFTA State or Ukraine or by a third-country
entity which is not established in an EEA EFTA State;
(vii) the products have been designed in the Union, an EEA EFTA State, or Ukraine
and are not subject to control or restriction by a third country which is not an
EEA EFTA State or Ukraine or by a third-country entity which is not
established in an EEA EFTA State or in Ukraine;’;
(c) in point (3) the following point (d) is added.
‘(d) for the common procurement of military equipment concluded prior to 1
January 2031 by contracting authorities/entities from at least three Member
States, provided that all of the following conditions are fulfilled:
(i) the contracting authorities/entities from the Member States concerned procure
identical defence products or products subject only to minor modifications;
(ii) the contract covers at least joint maintenance for the procured defence products
in addition to the procurement of the defence products. The requirement for the
contract covering joint maintenance may be waived in case the procured
defence product typically does not require maintenance;
(iii) the contractors involved in the common procurement shall be established and
have their executive management structures in the Union, in an EEA EFTA
State or in Ukraine. They shall not be subject to control by a third country
which is not an EEA EFTA State or Ukraine or by another third-country entity
which is not established in the Union, in an EEA EFTA State or in Ukraine;
(iv) Article 16(5), (6) and (9) of Regulation (EU) 2025/1106 of the Council* apply
insofar as they refer to contractors;
(v) the contractors involved in the common procurement may be considered to
fulfil the eligibility conditions referred to in point (ii) and (iii) where they have
fulfilled equivalent conditions under Regulations (EU) 2018/1092**, (EU)
2021/697***, (EU) 2023/1525**** or (EU) 2023/2418***** of the European
Parliament and of the Council and provided that no subsequent changes call
into question the fulfilment of those conditions;
(vi) the infrastructure, facilities, assets and resources of the contractors and
subcontractors involved in the common procurement which are used for the
purposes of the common procurement shall be located in the territory of a
Member State or an EEA EFTA State. Where contractors or subcontractors
involved in the common procurement have no readily available alternatives or
relevant infrastructure, facilities, assets and resources on the territory of a
Member State or an EEA EFTA State, they may use their infrastructure,
facilities, assets and resources which are located or held outside those
EN 24 EN
territories, provided that such use does not contravene the security and defence
interests of the Union and its Member States;
(vii) the cost of components originating outside the Union or an EEA EFTA States
shall not be higher than 35 % of the estimated cost of the components of the
end product;’;
__________
* Council Regulation (EU) 2025/1106 of 27 May 2025 establishing the Security Action for
Europe (SAFE) through the Reinforcement of the European Defence Industry Instrument (OJ
L, 2025/1106, 28.5.2025, ELI: http://data.europa.eu/eli/reg/2025/1106/oj).
** Regulation (EU) 2018/1092 of the European Parliament and of the Council of 18 July 2018
establishing the European Defence Industrial Development Programme aiming at supporting
the competitiveness and innovation capacity of the Union's defence industry (OJ L 200,
7.8.2018, p. 30–43, ELI: http://data.europa.eu/eli/reg/2018/1092/oj).
*** Regulation (EU) 2021/697 of the European Parliament and of the Council of 29 April
2021 establishing the European Defence Fund and repealing Regulation (EU) 2018/1092 (OJ L
170, 12.5.2021, p. 149, ELI: http://data.europa.eu/eli/reg/2021/697/oj).
**** Regulation (EU) 2023/1525 of the European Parliament and of the Council of 20 July
2023 on supporting ammunition production (ASAP) (OJ L 185, 24.7.2023, p. 7, ELI:
http://data.europa.eu/eli/reg/2023/1525/oj).
(d) point (4)(b) is replaced by the following:
‘(b) for new works or services consisting in the repetition of similar works or
services entrusted to the economic operator to which the same contracting
authorities/entities awarded an original contract, provided that such works or
services are in conformity with a basic project for which the original contract
was awarded according to the open procedure, the restricted procedure, the
negotiated procedure with publication of a contract notice, a competitive
dialogue, or an innovation partnership.
As soon as the first project is put up for tender, the possible use of this
procedure shall be disclosed, and the total estimated cost of subsequent works
or services shall be taken into consideration by the contracting
authorities/entities when they apply Article 8.
This procedure may be used only during the five years following the
conclusion of the original contract, except in exceptional circumstances
determined by taking into account the expected service life of any delivered
items, installations or systems, and the technical difficulties which a change of
supplier may cause;’;
(e) point (5) is replaced by the following:
‘(5) for contracts related to the provision of air and maritime transport services
for the armed forces or security forces of a Member State deployed or to be
deployed abroad, when the contracting authority/entity has to procure such
services from economic operators that guarantee the validity of their tenders
only for such short periods that the time-limits for the open procedure, the
restricted procedure or the negotiated procedure with publication of a contract
notice, including the shortened time-limits as referred to in Article 33(7),
cannot be complied with.’;
EN 25 EN
(11) in Article 29(2), the fourth subparagraph is replaced by the following:
‘The term of a framework agreement may not exceed 10 years, except in exceptional
circumstances determined by taking into account the expected service life of any
delivered items, installations or systems, and the technical difficulties which a
change of supplier may cause.’;
(12) the following Article 29a is inserted in Title II, Chapter V:
‘Article 29a
Dynamic purchasing system
1. For commonly used purchases the characteristics of which, as generally available on the
market, meet the requirements of the contracting authorities/entities, contracting
authorities/entities may use a dynamic purchasing system. The dynamic purchasing
system shall be operated as a completely electronic process and shall be open throughout
the period of validity of the purchasing system to any economic operator that satisfies the
selection criteria. It may be divided into categories of products, works or services that are
objectively defined on the basis of characteristics of the procurement to be undertaken
under the category concerned. Such characteristics may include reference to the
maximum allowable size of the subsequent specific contracts or to a specific geographic
area in which subsequent specific contracts will be performed.
2. In order to procure under a dynamic purchasing system, contracting authorities/entities
shall follow the rules of the restricted procedure. All candidates satisfying the selection
criteria shall be admitted to the system. Where contracting authorities/entities have
divided the system into categories of products, works or services in accordance with
paragraph 1 of this Article, they shall specify the applicable selection criteria for each
category.
Notwithstanding Article 33, the following time limits shall apply:
(a) the minimum time limit for receipt of requests to participate shall be 30 days from
the date on which the contract notice or, where a prior information notice is used as a
means of calling for competition, the invitation to confirm interest is sent. No further
time limits for receipt of requests to participate shall apply once the invitation to
tender for the first specific procurement under the dynamic purchasing system has
been sent;
(b) the minimum time limit for receipt of tenders shall be at least 10 days from the date
on which the invitation to tender is sent.
3. All communications in the context of a dynamic purchasing system shall only be made
by electronic means.
4. For the purposes of awarding contracts under a dynamic purchasing system, contracting
authorities/entities shall:
(a) publish a call for competition making it clear that a dynamic purchasing system is
involved;
(b) indicate in the procurement documents at least the nature and estimated quantity of
the purchases envisaged, as well as all the necessary information concerning the
dynamic purchasing system, including how the dynamic purchasing system operates,
the electronic equipment used and the technical connection arrangements and
specifications;
EN 26 EN
(c) indicate any division into categories of products, works or services and the
characteristics defining them;
(d) offer unrestricted and full direct access, as long as the system is valid, to the
procurement documents.
5. Contracting authorities/entities shall give any economic operator, throughout the entire
period of validity of the dynamic purchasing system, the possibility of requesting to
participate in the system under the conditions provided for in paragraph 2. Contracting
authorities/entities shall finalise their assessment of such requests in accordance with the
selection criteria within 10 working days following their receipt. That deadline may be
prolonged to 15 working days in individual cases where justified, in particular because of
the need to examine additional documentation or to otherwise verify whether the
selection criteria are met.
Notwithstanding the first subparagraph, as long as the invitation to tender for the first
specific procurement under the dynamic purchasing system has not been sent,
contracting authorities/entities may extend the evaluation period provided that no
invitation to tender is issued during the extended evaluation period. Contracting
authorities/entities shall indicate in the procurement documents the length of the
extended period that they intend to apply.
Contracting authorities/entities shall inform the economic operator concerned at the
earliest possible opportunity of whether or not it has been admitted to the dynamic
purchasing system.
6. Contracting authorities/entities shall invite all admitted participants to submit a tender for
each specific procurement under the dynamic purchasing system, in accordance with
Article 34. Where the dynamic purchasing system has been divided into categories of
works, products or services, contracting authorities/entities shall invite all participants
having been admitted to the category corresponding to the specific procurement
concerned to submit a tender.
They shall award the contract to the tenderer that submitted the best tender on the basis
of the award criteria set out in the contract notice for the dynamic purchasing system or,
where a prior information notice is used as a means of calling for competition, in the
invitation to confirm interest. Those criteria may, where appropriate, be formulated more
precisely in the invitation to tender.
7. Contracting authorities/entities shall indicate the period of validity of the dynamic
purchasing system in the call for competition. They shall notify the Commission of any
change in the period of validity, using the following standard forms:
(a) where the period of validity is changed without terminating the system, the form
used initially for the call for competition for the dynamic purchasing system;
(b) where the system is terminated, a contract award notice referred to in Article 30(3).
8. No charges may be billed prior to or during the period of validity of the dynamic
purchasing system to the economic operators interested in or party to the dynamic
purchasing system.’;
(13) Article 30 is amended as follows:
(a) paragraph 2 is replaced by the following:
‘2. Contracting authorities/entities which intend to award a contract or a
framework agreement by open procedure, restricted procedure, negotiated
EN 27 EN
procedure with the publication of a contract notice, competitive dialogue or
innovation partnership shall make known their intention by means of a contract
notice.’;
(b) the following paragraph 2a is inserted:
‘2a. Contracting authorities/entities shall send a contract award notice within
30 days after the award of each contract based on a dynamic purchasing
system. They may, however, group such notices on a quarterly basis. In that
case, they shall send the grouped notices within 30 days of the end of each
quarter.’;
(14) in Article 33, paragraph 2 is replaced by the following:
‘2. In restricted procedures, negotiated procedures with the publication of a contract
notice, use of a competitive dialogue and use of innovation partnership the minimum
time-limit for receipt of requests to participate shall be 37 days from the date on
which the contract notice is sent.
In the case of restricted procedures, the minimum time-limit for the receipt of tenders
shall be 40 days from the date on which the invitation is sent.’;
(15) in Article 34, paragraph 1 is replaced by the following:
‘1. In restricted procedures, negotiated procedures with the publication of a contract
notice, competitive dialogues, and innovation partnerships, the contracting
authorities/entities shall simultaneously and in writing invite the selected candidates
to submit their tenders or to negotiate, in the case of a competitive dialogue, to take
part in the dialogue, or, in case of an innovation partnership, to submit a request to
participate.’;
(16) Article 35 is amended as follows:
(a) paragraph 1 is replaced by the following:
‘1. The contracting authorities/entities shall, at the earliest opportunity, inform
candidates and tenderers of decisions reached concerning the award of a
contract, the conclusion of a framework agreement or admittance to a dynamic
purchasing system, including the grounds for any decision not to award a
contract, not to conclude a framework agreement for which there has been
competitive tendering or to recommence the procedure or not to implement a
dynamic purchasing system; that information shall be given in writing upon
request to the contracting authorities/entities.’;
(b) paragraph 3 is replaced by the following:
‘3. Contracting authorities/entities may decide to withhold certain information
on the contract award, the conclusion of the framework agreements or
admittance to a dynamic purchasing system referred to in paragraph 1 where
release of such information would impede law enforcement or otherwise be
contrary to the public interest, in particular defence and/or security interests,
would prejudice the legitimate commercial interests of economic operators,
whether public or private, or might prejudice fair competition between them.
(17) the following articles 46a and 46b are inserted in Title II, Chapter VII, Section 2:
EN 28 EN
‘Article 46a
Reduction of the number of otherwise qualified candidates to be invited to participate
1. In restricted procedures, negotiated procedures with publication of a contract notice,
competitive dialogue procedures and innovation partnerships, contracting
authorities/entities may limit the number of candidates meeting the selection criteria that
they will invite to tender or to conduct a dialogue, provided the minimum number, in
accordance with paragraph 2, of qualified candidates is available.
2. The contracting authorities/entities shall indicate, in the contract notice or in the
invitation to confirm interest, the objective and non-discriminatory criteria or rules they
intend to apply, the minimum number of candidates they intend to invite and, where
appropriate, the maximum number.
In the restricted procedure the minimum number of candidates shall be five. In the
negotiated procedure with publication of a contract notice, in the competitive dialogue
procedure and in the innovation partnership the minimum number of candidates shall be
three. In any event the number of candidates invited shall be sufficient to ensure genuine
competition.
The contracting authorities/entities shall invite a number of candidates at least equal to
the minimum number. However, where the number of candidates meeting the selection
criteria and the minimum levels of ability as referred to in Article 38(3) is below the
minimum number, the contracting authority/entity may continue the procedure by
inviting the candidates with the required capabilities. In the context of the same
procedure, the contracting authority/entity shall not include economic operators that did
not request to participate, or candidates that do not have the required capabilities.
Article 46b
Reduction of the number of tenders and solutions
Where contracting authorities/entities exercise the option of reducing the number of
tenders to be negotiated as provided for in Article 26(3) or of solutions to be discussed as
provided for in Article 27(4), they shall do so by applying the award criteria stated in the
procurement documents. In the final stage, the number arrived at shall make for genuine
competition in so far as there are enough tenders, solutions or qualified candidates.’;
(18) the following Article 49a is inserted in Title II, Chapter VII, Section 3:
‘Article 49a
Modification of contracts during their term
1. Contracts and framework agreements may be modified without a new procurement
procedure in accordance with this Directive in any of the following cases:
(a) where the modifications, irrespective of their monetary value, have been
provided for in the initial procurement documents in clear, precise and
unequivocal review clauses, which may include price revision clauses, or
options. Such clauses shall state the scope and nature of possible modifications
or options as well as the conditions under which they may be used. They shall
not provide for modifications or options that would alter the overall nature of
the contract or the framework agreement;
EN 29 EN
(b) for additional works, services or supplies by the original contractor that have
become necessary and that were not included in the initial procurement where a
change of contractor:
(i) cannot be made for economic or technical reasons such as requirements of
interchangeability or interoperability with existing equipment, services or
installations procured under the initial procurement; and
(ii) would cause significant inconvenience or substantial duplication of costs for
the contracting authority/entity;
However, any increase in price shall not exceed 50 % of the value of the original
contract. Where several successive modifications are made, that limitation shall
apply to the value of each modification. Such consecutive modifications shall not be
aimed at circumventing this Directive;
(c) where all of the following conditions are fulfilled:
(i) the need for modification has been brought about by circumstances which a
diligent contracting authority/entity could not foresee;
(ii) the modification does not alter the overall nature of the contract;
(iii) any increase in price is not higher than 50 % of the value of the original
contract or framework agreement. Where several successive modifications are
made, that limitation shall apply to the value of each modification. Such
consecutive modifications shall not be aimed at circumventing this Directive;
(d) where a new contractor replaces the one to which the contracting
authority/entity had initially awarded the contract as a consequence of either:
(iv) an unequivocal review clause or option in conformity with point (a);
(v) universal or partial succession into the position of the initial contractor,
following corporate restructuring, including takeover, merger, acquisition or
insolvency, of another economic operator that fulfils the criteria for
qualitative selection initially established provided that this does not entail
other substantial modifications to the contract and is not aimed at
circumventing the application of this Directive; or
(vi) in the event that the contracting authority/entity itself assumes the main
contractor’s obligations towards its subcontractors where this possibility is
provided for under national legislation pursuant to Article 21;
(e) where the modifications, irrespective of their value, are not substantial within
the meaning of paragraph 2.
Contracting authorities/entities having modified a contract in the cases referred to in
point (b) and (c) shall publish a notice to that effect in the Official Journal of the
European Union. Such notice shall contain mutatis mutandis the information required in
a contract award notice.
2. For the purpose of the calculation of the price mentioned in paragraph 1, points (b) and
(c), the updated price shall be the reference value when the contract includes an
indexation clause
3. A modification of a contract or a framework agreement during its term shall be
considered to be substantial within the meaning of paragraph 1, point (e), where it
renders the contract or the framework agreement materially different in character from
EN 30 EN
the one initially concluded. In any event, without prejudice to paragraphs 1 and 2, a
modification shall be considered to be substantial where one or more of the following
conditions is met:
(a) the modification introduces conditions which, had they been part of the initial
procurement procedure, would have allowed for the admission of other
candidates than those initially selected or for the acceptance of a tender other
than that originally accepted or would have attracted additional participants in
the procurement procedure;
(b) the modification changes the economic balance of the contract or the
framework agreement in favour of the contractor in a manner which was not
provided for in the initial contract or framework agreement;
(c) the modification extends the scope of the contract or framework agreement
considerably;
(d) where a new contractor replaces the one to which the contracting
authority/entity had initially awarded the contract in other cases than those
referred to in paragraph 1, point (d).
4. A new procurement procedure in accordance with this Directive shall be required for
other modifications of the provisions of a public contract or a framework agreement
during its term than those provided for under paragraph 1.’;
(19) Articles 65, 66 and 68 are deleted.
Article 3
1. Member States shall adopt and publish, by […]at the latest, the laws, regulations and
administrative provisions necessary to comply with this Directive. They shall
forthwith communicate to the Commission the text of those provisions.
They shall apply those provisions from […].
When Member States adopt those provisions, they shall contain a reference to this
Directive or be accompanied by such a reference on the occasion of their official
publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions
of national law which they adopt in the field covered by this Directive.
Article 4
This Directive shall enter into force on the […] day following that of its publication in the
Official Journal of the European Union.
Article 5
This Directive is addressed to the Member States.
Done at Strasbourg,
For the European Parliament For the Council
The President The President