Case Id: d68dad76-b685-4408-97c3-cb3fb50ba9f6
Date: 07/07/2016 11:14:05

Public consultation on Directive 2009/81/EC CONTRACTING AUTHORITIES/ENTITIES, OTHER
PUBLIC AUTHORITIES
Fields marked with * are mandatory.

Introduction

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Public consultation on Directive 2009/81/EC on defence and sensitive security procurement

Public procurement of military and sensitive security equipment in the EU and EEA is governed by
Directive 2009/81/EC. This Directive sets rules for the procurement of arms, munitions and war
material, plus related works and services, for defence purposes, but also for the procurement of
sensitive supplies, works and services for security purposes. It is tailored to the specificities of
defence and security markets also by providing more flexibility and a number of specific
defence-related exclusions.
Directive 2009/81/EC is applicable through the national laws of the Member States which transpose
it. Thus, all the questions about Directive 2009/81/EC or procedures under the Directive should be
understood as referring to the relevant national rules governing the procurement of military and
sensitive security equipment, services and works (i.e.: transposing Directive 2009/81/EC).
The deadline for transposition into national law was 21 August 2011. In early 2012, Directive
2009/81/EC was transposed by the majority of EU Member States. When questions refer to the
situation “before or after” Directive 2009/81/EC please take into account the moment when the
specific procurement rules transposing Directive 2009/81/EC entered into the force in your
country. Please see here (http://ec.europa.eu/DocsRoom/documents/15723) the list of transposition
dates per Member State.
Some questions also refer to the “Civil Procurement Directives”. These are the Directives which,
through the national laws transposing them, govern general (i.e. non-defence) public procurement.
These Directives are, at the moment of the launch of the consultation, Directives 2004/18/EC and
2004/17/EC. The national laws transposing them should be replaced, by 18 April 2016, by national
laws transposing the new Directives 2014/23/EC, 2014/24/EC and 2014/25/EC. This change will not
affect the issues raised in this consultation.
The notion “Member States” used in this questionnaire refers to countries that are part of the
European Union or of the European Economic Area.

Defence and security procurement experience

*
1. Have you ever been involved in public procurement in the fields of defence and security (equipm
ent, works or services)?
Yes
No

Patterns of use and impacts

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Patterns of use

1. What proportion of your defence and security purchases (in value terms) is made through
procurement procedures under Directive 2009/81/EC?
All
More than 50%, but not all
50% or less
I prefer not to answer

2. In your experience, how often are the following legal grounds used as a justification NOT to carry out
defence or security procurement procedures under Directive 2009/81/EC?

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Very
frequently

Frequently

Occasionally

Rarely

Very
rarely

Never

Necessity for
the protection
of the
essential
security
interests
(Article 346
TFEU)
Purchase
governed by
international
agreements
rules (Article
12a)
Purchase
governed by
an
international
organisation's
rules (Article
12c)
Purchase
related to
intelligence
activities
(Article 13b)
Purchase
related to
multinational
cooperative
programmes
(Article 13c)
Government
to government
procurement
(Article 13f)
Below
threshold
procurement

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Other reasons (please explain):

3 To what extent do you agree with the following statement: "The distinction between the scope of
the Civil Procurement Directives and Directive 2009/81/EC is sufficiently clear."?
Strongly agree

Agree

Neutral

Disagree

Strongly disagree

I have no opinion
If needed, please substantiate:
Although there has been improvement, there is still room for interpretation
leading to a non-uniform approach throughout the European Union.

4. To what extent do you agree with the following statement: "The exclusions from Directive
2009/81/EC (Articles 12 and 13) are appropriate."?
Strongly agree

Agree

Neutral

Disagree

Strongly disagree

I have no opinion
If needed, please substantiate:
The purchase via international organizations require more clarification.

5. To what extent do you agree with the following statement: "The procedures available under
Directive 2009/81/EC and the conditions for their use provide enough flexibility."?
Strongly agree

Agree

Neutral

Disagree

Strongly disagree

I have no opinion

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If needed, please substantiate:
It would be worth to investigate if the procedure of innovation partnership in
2014/24/EC has an added value for 2009/81/EC

6. To what extent do you agree with the following statement: "The provisions on security of
information in Directive 2009/81/EC are sufficient to ensure the protection of classified
information."?
Strongly agree

Agree

Neutral

Disagree

Strongly disagree

I have no opinion
If needed, please substantiate:

7. To what extent do you agree with the following statement: "The provisions on security of supply in
Directive 2009/81/EC are sufficient to limit the risks of supply disruptions and ensure
operational autonomy."?
Strongly agree

Agree

Neutral

Disagree

Strongly disagree

I have no opinion
If needed, please substantiate:

8. To what extent do you agree with the following statement: "Directive 2009/81/EC has reduced the
need to use the essential security interest exemption (Article 346 TFEU)"?
Strongly agree

Agree

Neutral

Disagree

Strongly disagree

I have no opinion

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If needed, please substantiate:

9. To what extent do you agree with the following statement: "The provisions on subcontracting in
Directive 2009/81/EC foster cross-border access to defence and security supply chains."?
Strongly agree

Agree

Neutral

Disagree

Strongly disagree

I have no opinion
If needed, please substantiate:
At the moment there is almost no cross-border subcontracting. However, an
obligation to do so would not be an appropriate solution.

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10. How would you evaluate the following aspects of procurement procedures under Directive
2009/81/EC as compared to procurement rules applicable before?

Significantly
improved

Improved

No
difference

Deteriorated

Significantly
deteriorated

I have
no
opinion

Best value for
money
Quality of
contract
implementation
Competition
(number of
offers)
Procedures
duration
Legal certainty
Clarity of
procedures

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Other aspects that you consider important (please specify):

11. How would you evaluate the costs of carrying out procurement procedures under Directive
2009/81/EC as compared to these costs before the Directive?
The costs under Directive 2009/81/EC are:

Much more resource intensive than before
More resource intensive than before
Similarly resource intensive as before
Less resource intensive than before
Much less resource intensive than before
I have no experience in carrying out defence and security procurement before Directive
2009/81/EC
I have no opinion
12. How would you evaluate the costs of carrying out procurement procedures under Directive
2009/81/EC as compared to cost under the Civil Procurement Directives (for procurement of similar
complexity)?
The costs under Directive 2009/81/EC are:

Much more resource intensive than civil procurement
More resource intensive than civil procurement
Similarly resource intensive than civil procurement
Less resource intensive than civil procurement
Much less resource intensive than civil procurement
I have no experience in carrying out civil procurement
I have no opinion
13. In your view, how do the costs and benefits of the application of procurement procedures under
Directive 2009/81/EC compare?
The benefits by far outweigh the costs
The benefits outweigh the costs
The costs are proportionate to the benefits
The costs outweigh the benefits
The costs by far outweigh the benefits
I have no opinion

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14. In your experience, has Directive 2009/81/EC resulted in offers/expressions of interests coming from
a more diverse, wider range of suppliers from other EU Member States?
Very Frequently

Frequentl
y

Occasionall
y

Rarel
y

Very
rarely

Neve
r

I have no
opinion

Impacts
1. In your view, what has been the impact of Directive 2009/81/EC on the competitiveness of
European defence industry (the European Defence and Technological Industrial Base - EDTIB)?
Significantly
positive

Moderately
positive

No
impact

Moderately
negative

Significantly
negative

I have no
opinion
2. In your view, what has been the impact of Directive 2009/81/EC on the access of SMEs to defence
and security procurement in EU and EEA countries?
Significantly
positive

Moderately
positive

No
impact

Moderately
negative

Significantly
negative

I have no
opinion
3. In your view, what has been the impact of Directive 2009/81/EC on cross-border access to defence
and security procurement in EU and EEA countries?
Significantly
positive

Moderately
positive

No
impact

Moderately
negative

Significantly
negative

I have no
opinion

General views and comments

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1. In your view, to what extent the objectives of Directive 2009/81/EC are still relevant today?

The direct and indirect objectives of Directive 2009/81/EC were:
- to establish an open and competitive European Defence Equipment Market (EDEM),
- to help strengthen European Defence and Technological industrial base (EDTIB),
- to ensure that the situation of SMEs in the defence sector is not negatively affected.
Relevant
Moderately relevant
Neither relevant nor irrelevant
Rather irrelevant
Irrelevant
No opinion

2. Have any new issues related to the objectives of Directive 2009/81/EC emerged since its
adoption?

3. If you have any additional observations or comments concerning Directive 2009/81/EC, please
provide them here:

You may also provide your comments in a file.

Contact details
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*
1. Please indicate the country you are from:
Austria
Belgium
Bulgaria
Cyprus
Czech Republic
Germany
Denmark
Estonia
Greece
Spain
Finland
France
Hungary
Croatia
Ireland
Iceland
Italy
Lithuania
Luxembourg
Lichtenstein
Latvia
Malta
Netherlands
Norway
Poland
Portugal
Romania
Sweden
Slovenia
Slovak Republic
United Kingdom
Other country

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*2. Your name/organisation and contact details (address, e-mail, phone):
Ministry of Economic Affairs
Bezuidenhoutseweg 73
2594 AC Den Haag
The Netherlands
Phone number:

+31 70 379 8911

*
3. We will include the answers into the consultation summary that will be published on the Commission
website (www.ec.europa.eu/yourvoice). If you have provided textual answers, would you agree to
possibly be quoted in the summary?
YES - under my name (I consent to my name and my answers being quoted; none of the
information I have provided is subject to copyright restrictions).
YES - anonymously (I consent to my answers being quoted anonymously; none of the
information I have provided is subject to copyright restrictions).
NO - please keep my answers confidential (your answers and personal data will not be
published, but will be used by the Commission within the evaluation and included in
aggregated form)

Contact
GROW-CONSULTATION-PP-DEFENCE@ec.europa.eu

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