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Public procurement in the fields of defence and security

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Public procurement in the fields of defence and security

 

SUMMARY

Specific procurement rules for the defence and security sectors are necessary in order to open up EU defence markets without putting at risk legitimate security interests of EU countries. This Directive increases competition and transparency in these sectors, thus enabling European companies to tender for more of defence and security contracts throughout the EU.

WHAT DOES THIS DIRECTIVE DO?

It sets out EU procurement rules, adapted to the specificities of the defence and security sectors.

KEY POINTS

Scope: the Directive applies, in principle, to all contracts for the procurement of military equipment, works and services and to all sensitive purchases having a security purpose and involving classified information.

EU countries retain the right under Article 346 of the Treaty on the Functioning of the European Union to exempt contracts from this Directive. This is necessary to protect their essential security interests.

Certain specific types of contracts are excluded from the Directive. These include:

contracts awarded for intelligence activities or connected with the stationing of troops, awarded in accordance to the rules of international organisations purchasing for these purposes

contracts awarded by one government to another relating to the supply of military or sensitive equipment.

The Directive allows for review procedures (i.e. the possibility for a tenderer* to challenge the award of a contract to another tenderer) aimed at providing legal protection of tenderers involved. The procedures also encourage transparency and non-discrimination in the awarding of contracts without compromising EU countries' need for confidentiality.

The Directive is related to Directive 2009/43/EC on intra-EU transfers of defence-related products. The simplified transfers of defence-related products between EU countries assured by Directive 2009/43/EC are necessary for the proper functioning of cross-border tendering.

In June 2014, the European Commission presented a roadmap for measures to strengthen the EU’s Single Market and promote competition in the defence sector. The roadmap aims to implement the Commission Communication on defence and security of July 2013. Planned measures include amending the Directive to better tackle remaining market distortions and to improve the security of supply of military and sensitive equipment between EU countries.

WHEN DOES THE DIRECTIVE APPLY?

It entered into force on 21 August 2009 and had to be incorporated in EU countries' national law by 21 August 2011.

BACKGROUND

European Defence Industrial Policy

KEY TERMS

* Tenderer: an organisation or consortium that submits an offer in response to a call for tenders.

ACT

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

REFERENCE

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Directive 2009/81/EC

21.8.2009

21.8.2011

OJ L 216, 20.8.2009, pp. 76–136

Successive amendments and corrections to Directive 2009/81/EC have been incorporated into the original text. This consolidated version is for reference only.

RELATED ACTS

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, pp. 1–36). See consolidated version.

last update 19.10.2015

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