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
Date: 2025-06-17
Institutions: Directorate-General for Defence Industry and Space, European Commission
Subjects: European arms policy, European defence policy, European security, common defence procurement, defence industry, innovation, investment, military equipment, public procurement, research and development

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   EUROPEAN COMMISSION  Strasbourg, 17.6.2025  COM(2025) 823 final/2 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 {SWD(2025) 820 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

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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. 

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Joint White Paper for European Defence Readiness 2030: JOIN/2025/120 final, 19.03.2025. 

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• 

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 

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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. 

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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) 
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 
76–136,  
Directives 
ELI: http://data.europa.eu/eli/dir/2009/81/oj). 

2004/18/EC 

2004/17/EC 

20.8.2009, 

216, 

and 

(OJ 

p. 

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3. 

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N/A 

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RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

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 

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4. 

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N/A 

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BUDGETARY IMPLICATIONS 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Explanatory documents (for directives) 

Detailed explanation of the specific provisions of the proposal 

For Directive 2009/43/EC 

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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 

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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. 

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• 

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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. 

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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) 

(2) 

(3) 

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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.  

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. 

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 

JOIN(2025) 120 final, 19 March 2025. 
Joint White Paper for European Defence Readiness 2030: JOIN/2025/120 final, 19.03.2025. 
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). 

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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. . 

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.  

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. 

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. 

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. 

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. 

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 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

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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) 

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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. 

The  EDF  Model  Grant  Agreement 
is 
https://ec.europa.eu/info/funding-tenders/opportunities/docs/2021-2027/edf/agr-contr/mga_edf_v1.0-
01052023_en.pdf 
OJ L 123, 12.5.2016, p. 1, ELI: http://data.europa.eu/eli/agree_interinstit/2016/512/oj. 

the  Commission  website: 

available 

on 

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9 

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(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. 

investments 

to  regaining  edge  and  prevent  being 

(17)  There is urgency for the  Union to mobilise its overall innovation  capacity and direct 
technologically 
significant 
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 

10 

11 

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). 
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 
76,  ELI: 
2004/17/EC 
http://data.europa.eu/eli/dir/2009/81/oj). 
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). 

2004/18/EC 

20.8.2009, 

(OJ  L 

216, 

and 

p. 

EN 

10 

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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, 
the 
interoperability  and  interchangeability  of  Member  States’  armed  forces’  equipment, 
further  strengthening  the  Union’s  defence  readiness  and  enhancing  the  security  of 
supply. 

including  common  maintenance,  contributes 

to  deepening 

(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). 

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(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 
76,  ELI: 
2004/17/EC 
http://data.europa.eu/eli/dir/2009/81/oj).’; 

2004/18/EC 

20.8.2009, 

(OJ  L 

216, 

and 

p. 

(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; 

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12 

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(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: 

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13 

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‘(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 

14 

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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 

15 

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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) 

(b) 

in point (a), ‘EUR 443 000’ is replaced by ‘EUR 900 000’; 

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 

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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) 

(b) 

(c) 

awarding  a  contract  under  a  dynamic  purchasing  system,  which  is 
operated by a central purchasing body; 

conducting a reopening of competition under a framework agreement that 
has been concluded by a central purchasing body; 

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. 

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17 

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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 

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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 

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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.  

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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: 

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(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;  

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(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 

their 
subcontractors  are  established  in  the  Union,  in  an  EEA  EFTA  State,  or  in 
Ukraine; 

the  contractors  and 

(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 

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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 
the  contracting 
or  services  shall  be 
authorities/entities when they apply Article 8. 

into  consideration  by 

taken 

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.’; 

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(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. 

(a) 

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: 

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) 

(b) 

publish  a  call  for  competition  making  it  clear  that  a  dynamic  purchasing  system  is 
involved; 

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; 

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(c) 

(d) 

indicate  any  division  into  categories  of  products,  works  or  services  and  the 
characteristics defining them; 

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 

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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 
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.’; 

innovation  partnerships, 

(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: 

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‘Article 46a 
Reduction of the number of otherwise qualified candidates to be invited to participate 

1. 

dialogue 

In  restricted  procedures,  negotiated  procedures  with  publication  of  a  contract  notice, 
competitive 
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. 

partnerships, 

procedures 

innovation 

and 

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; 

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(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 

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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  contracting 
authority/entity  had  initially  awarded  the  contract  in  other  cases  than  those 
referred to in paragraph 1, point (d). 

to  which 

the  one 

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. 

This  Directive  shall  enter  into  force  on  the  […]  day  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

Article 4 

This Directive is addressed to the Member States. 

Done at Strasbourg, 

Article 5 

For the European Parliament 
The President 

For the Council 
The President 

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