Research Handbooks in European Law series
Edited by Christopher Bovis
Chapter 17: The new EU defence procurement regime
There have been EU procurement Directives since the 1970s, but only in 2009, after years of preparation and discussion, a Defence and Security Procurement Directive 2009/81/EC (hereinafter ‘Defence Procurement Directive’) entered into force. Part of a wider EU ‘defence package’, it regulates the procurement of armaments and other sensitive supplies, services and works not only by the defence ministries but also other relevant contracting authorities and entities of the Member States. As in the other procurement Directives discussed in this volume, this covers, inter alia, the precise definition of the goods and services, their publication in the Official Journal of the EU (OJ), procurement procedures, the qualification and rejection of bidders, and award criteria. It also covers a review and remedies regime for aggrieved bidders in its Title IV, which for the public sector and utilities is regulated in separate Directives. The Defence Procurement Directive is largely based on the old Public Sector Procurement Directive 2004/18/EC. However, the latter was adapted to take the specific characteristics of defence and security procurement, its complexity and in particular security of supply and security of information, into account. This was necessary to limit the use of the national security and secrecy and public security derogations in the TFEU, namely Articles 36, 52(1), and especially 346 TFEU, thereby keeping the majority of contracts ‘inside’ the regime of the Defence Procurement Directive and the Treaty. Many of the innovations of the new Public Sector Procurement Directive 2014/24/EU will probably make their way into a revised Defence Procurement Directive in 2016.
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