(fra kommisjonsforslaget)

The Union is facing an acute and growing threat, as underscored in the White Paper on European Defence Readiness 2030, 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.

(2)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 2030 outlined the objectives for this simplification of legislation impacting the defence readiness.

(3)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 Council. Taking into account the developments in the security situation and the introduction of Union defence industrial 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. .

(4)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.

(5)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.

(6)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.

(7)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.

(8)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.

(9)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 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 Agreement 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)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-Making. 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.

(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) 2025/1106. 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 Council, 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 Council.

(17)There is urgency for the Union to mobilise its overall innovation capacity and direct significant investments to regaining edge and prevent being technologically 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 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, including common maintenance, contributes to deepening the interoperability and interchangeability of Member States’ armed forces’ equipment, further strengthening the Union’s defence readiness and enhancing the security of supply.

(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 security, 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.

(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,