Referring to the war in Ukraine, the European Commission launched a proposal to amend Directive 2009/81/EC on public procurement in the fields of defence and security. Unlike the public procurement directives for the classical and utilities sectors, this legislation did not receive an update in 2014.
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 build-up.
Set out below are the key proposed amendments:
- The thresholds for the Directive to be applicable are increased from EUR 443,000 to EUR 900,000 for supply and service contracts, and from EUR 5,538,000 to EUR 7,000,000 for works contracts. This will 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 on public procurement in the classical sectors, are introduced to enhance the range of tools at the disposal of the Member States;
- A modified and more flexible innovation partnership procedure will be introduced, based on Directive 2014/24, to support the procurement of innovative solutions;
- 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 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.
These proposals are intended to swiftly improve defence readiness. A comprehensive revision of the Directive is planned for 2026.
One may, however, question whether these proposed measures will actually achieve this objective. Undoubtedly, reducing administrative burdens, increasing the threshold values, and extending the use of the negotiated procedure without prior publication are positive developments. By contrast, the introduction of the dynamic purchasing system, the open procedure, and the innovation partnership appear to be less effective measures, as these are currently seldom – and often reluctantly – used.
It is now up to the Council and the European Parliament to examine these proposals, amend them if necessary, or approve them.
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