EU Defence Procurement and the European Court of Justice

The defence and security of EU Member States is a national matter for each state. The guarantee of the state’s external security through its national defines capabilities that belongs to that state’s absolute core responsibility. The defence of each Member State is thus a national matter, which means that the EU Member States have no common defense and that European defence issues are not supranational in nature. However, there are a number of intergovernmental defence cooperations between the Member States, e.g. through the EDA, the European Defence Agency.1 In addition, there are a number of provisions of Union law on how different types of defence and security services and goods shall be procured.

Contracting authorities and entities must for all procurements decide which procurement legislation is applicable to a specific procurement.2 The provisions of the various regulations differ and opportunities that may exist in some procurements may not be applicable to others. Regardless of the type of contracting authority or entity concerned, decisions must therefore be made for each individual procurement on which legislation is applicable to that particular procurement.

In the case of defence and security procurement, both contracting authorities and entities shall apply the provisions in Article 346 of the Treaty on the Functioning of the European Union (Article 346 TFEU),3 or the provisions of Directive 2009/81/EC of 13 July 2009 on the coordination of procedures for the award of certain contracts for works, goods and services by contracting authorities and entities in the field of defence and security (Directive 2009/81). Article 346 TFEU states that a Member State under certain circumstances can buy goods, services and works directly, without prior competition, if certain conditions are met. If they are not, the procurements have to be done according to the provisions in Directive 2009/81.

Andrea Sundstrand

PDF: Andrea Sundstrand EU Defence Procurement and the European Court of Justice UrT 2023 p. 1
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År: 2023