The Protection Of “Key Defence And Security Technology” Under The Revised German Public Procurement Law And Its Compatibility With Article 346 TFEU

The recent Coronavirus outbreak has been unprecedented in the history of the European Union not only from an epidemiological point of view, but also in exposing the sudden need of Member States to have, within their borders, certain goods immediately available to them. With the Coronavirus pandemic, the immediate concern was medical protective equipment and ventilators. Some Member States have already announced their intention to ensure domestic production of such goods in the future.1 What is reasonable with regard to the protection of the population against health risks also holds true for national defence and security. It might be of interest to Member States to ensure their national industrial capability to produce particular goods that are essential for defence and security. But is that legally permissible under the EU procurement directives? Even though the defence sector and the procurement of defence equipment are strongly influenced by political and strategic interests, they are – as a general rule – subject to the EU public procurement directives, in particular Directive 2009/81/EC.2 However, EU law provides for certain exceptions concerning the defence sector to acknowledge the special requirements of procuring defence equipment, as well as Member State’s autonomy regarding their defence strategy.

Pascal Friton
Florian Wolf
no 2
s. 89