Directive 2009/81/EC of the European Parliament and of the CouncilShow full title

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 2004/17/EC and 2004/18/EC

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 47(2) and Articles 55 and 95 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee(1),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(2),

Whereas:

(1) National security remains the sole responsibility of each Member State, in the fields of both defence and security.

(2) The gradual establishment of a European defence equipment market is essential for strengthening the European Defence Technological and Industrial Base and developing the military capabilities required to implement the European Security and Defence Policy.

(3) Member States agree on the need to foster, develop and sustain a European Defence Technological and Industrial Base that is capability driven, competent and competitive. In order to achieve this objective, Member States may use different tools, in conformity with Community law, aiming at a truly European defence equipment market and a level playing field at both European and global levels. They should also contribute to the in-depth development of the diversity of the European defence-related supplier base, in particular by supporting the involvement of small and medium-sized enterprises (SMEs) and non-traditional suppliers in the European Defence Technological and Industrial Base, fostering industrial cooperation and promoting efficient and responsive lower tier suppliers. In this context, they should take into account the Commission’s Interpretative Communication of 7 December 2006 on the application of Article 296 of the Treaty in the field of defence procurement and the Commission Communication of 5 December 2007 on a Strategy for a stronger and more competitive European defence industry.

(4) One prerequisite for the creation of a European defence equipment market is the establishment of an appropriate legislative framework. In the field of procurement, this involves the coordination of procedures for the award of contracts to meet the security requirements of Member States and the obligations arising from the Treaty.

(5) To achieve this objective, in its resolution of 17 November 2005 on the Green Paper on defence procurement(3), the European Parliament called on the Commission to draft a directive taking particular account of the security interests of Member States, further developing the common foreign and security policy, promoting greater European cohesion and preserving the role of the Union as a ‘civil power’.

(6) Better coordination of award procedures, for instance for contracts regarding logistics services, transportation and warehousing, also have the potential to reduce costs in the defence sector and significantly lower the sector’s environmental impact.

(7) These procedures should reflect the Union’s overall approach to security, which responds to changes in the strategic environment. The emergence of asymmetrical transnational threats has increasingly blurred the boundary between external and internal and military and non-military security.

(8) Defence and security equipment is vital for both the security and the sovereignty of Member States and for the autonomy of the Union. As a result, purchases of goods and services in the defence and security sectors are often of a sensitive nature.

(9) This results in specific requirements, particularly in the fields of security of supply and security of information. These requirements relate especially to purchases of arms, munitions and war material for the armed forces, as well as services and works directly relating thereto, but also to certain particularly sensitive purchases in the field of non-military security. In these fields, the absence of Union-wide regimes hampers the openness of defence and security markets between Member States. This situation requires rapid improvement. An Union-wide regime on security of information, including the mutual recognition of national security clearances and allowing the exchange of classified information between contracting authorities/entities and European companies, would be particularly useful. At the same time, Member States should take concrete measures to improve security of supply between them aiming at the progressive establishment of a system of appropriate guarantees.

(10) For the purposes of this Directive, military equipment should be understood in particular as the product types included in the list of arms, munitions and war material adopted by the Council in its Decision 255/58 of 15 April 1958(4), and Member States may limit themselves to this list only when transposing this Directive. This list includes only equipment which is designed, developed and produced for specifically military purposes. However, the list is generic and is to be interpreted in a broad way in the light of the evolving character of technology, procurement policies and military requirements which lead to the development of new types of equipment, for instance on the basis of the Common Military List of the Union. For the purposes of this Directive, military equipment should also cover products which, although initially designed for civilian use, are later adapted to military purposes to be used as arms, munitions or war material.

(11) In the specific field of non-military security, this Directive should apply to procurements which have features similar to those of defence procurements and are equally sensitive. This can be the case in particular in areas where military and non-military forces cooperate to fulfil the same missions and/or where the purpose of the procurement is to protect the security of the Union and/or the Member States, on their own territory or beyond it, against serious threats from non-military and/or non-governmental actors. This may involve, for example, border protection, police activities and crisis management missions.

(12) This Directive should take account of the needs of the contracting authority/entity throughout the whole life cycle of the product, i.e., research and development, industrial development, production, repair, modernisation, modification, maintenance, logistics, training, testing, withdrawal and disposal. These stages include, for example, studies, evaluation, storage, transport, integration, servicing, dismantling, destruction and all other services following the initial design. Some contracts may include the supply of parts, components and/or subassemblies to be incorporated in or affixed to products, and/or the supply of specific tools, test facilities or support.

(13) For the purposes of this Directive, research and development should cover fundamental research, applied research and experimental development. Fundamental research consists in experimental or theoretical work undertaken mainly with a view to acquiring new knowledge regarding the underlying foundation of phenomena and observable facts, without any particular application or use in view. Applied research also consists of original work undertaken with a view to acquiring new knowledge. However, it is directed primarily towards a particular practical end or objective. Experimental development consists in work based on existing knowledge obtained from research and/or practical experience with a view to initiating the manufacture of new materials, products or devices, establishing new processes, systems and services or considerably improving those that already exist. Experimental development may include the realisation of technological demonstrators, i.e. devices demonstrating the performance of a new concept or a new technology in a relevant or representative environment. Research and development does not include the making and qualification of pre-production prototypes, tools and industrial engineering, industrial design or manufacture.

(14) This Directive should take account of the needs of the contracting authority/entity for works and services which, although not directly linked to the supply of military equipment or sensitive equipment, are necessary to fulfil certain military or security requirements.

(15) The award of contracts concluded in the Member States by contracting entities as referred to in Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors(5) and by contracting authorities as referred to in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts(6) is subject to compliance with the principles of the Treaty and in particular the free movement of goods, the freedom of establishment and the freedom to provide services, and with the principles deriving therefrom, such as the principles of equal treatment, non-discrimination, mutual recognition, proportionality and transparency. Transparency and competition obligations for contracts below the application thresholds for this Directive should be determined by Member States in compliance with those principles and taking account, in particular, of situations where there is a cross-border interest. In particular, it is for Member States to determine the most suitable arrangements for awarding such contracts. For contracts above a certain value, it is advisable to draw up provisions for the Community coordination of national procedures for the award of such contracts which are based on these principles so as to guarantee their effects and an effective opening-up of procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the above-mentioned rules and principles and with other rules of the Treaty.

(16) Articles 30, 45, 46, 55 and 296 of the Treaty make provision for specific exceptions to the application of the principles set out in the Treaty and, consequently, to the application of law derived therefrom. It therefore follows that none of the provisions of this Directive should prevent the imposition or application of any measures considered necessary to safeguard interests recognised as legitimate by these provisions of the Treaty. This means in particular that the award of contracts which fall within the field of application of this Directive can be exempted from the latter where this is justified on grounds of public security or necessary for the protection of essential security interests of a Member State. This can be the case for contracts in the fields of both defence and security which necessitate such extremely demanding security of supply requirements or which are so confidential and/or important for national sovereignty that even the specific provisions of this Directive are not sufficient to safeguard Member States’ essential security interests, the definition of which is the sole responsibility of Member States.

(17) Nevertheless, in accordance with the case-law of the Court of Justice of the European Communities, the possibility of recourse to such exceptions should be interpreted in such a way that their effects do not extend beyond that which is strictly necessary for the protection of the legitimate interests that those Articles help to safeguard. Thus, the non-application of this Directive must be proportionate to the aims pursued and cause as little disturbance as possible to the free movement of goods and the freedom to provide services.

(18) Contracts relating to arms, munitions and war material awarded by contracting authorities/entities operating in the field of defence are excluded from the scope of the Government Procurement Agreement (GPA) concluded at the World Trade Organization. The other contracts covered by this Directive are also exempted from the application of the GPA by virtue of Article XXIII thereof. Article 296 of the Treaty and Article XXIII(1) of the GPA have a different scope and are subject to different standards of judicial review. Member States may still rely on Article XXIII(1) of the GPA in situations where Article 296 of the Treaty cannot be invoked. The two provisions have therefore to meet different conditions for application. This exclusion means also that in the specific context of defence and security markets, Member States retain the power to decide whether or not their contracting authority/entity may allow economic operators from third countries to participate in contract award procedures. They should take that decision on grounds of value for money, recognizing the need for a globally competitive European Defence Technological and Industrial Base, the importance of open and fair markets and the obtaining of mutual benefits. Member States should press for increasingly open markets. Their partners should also demonstrate openness, on the basis of internationally-agreed rules, in particular as concerns open and fair competition.

(19) A contract shall be deemed to be a works contract only if its subject-matter specifically covers the execution of activities under Division 45 of the ‘Common Procurement Vocabulary’ laid down by Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV)(7) (hereinafter the ‘CPV), even if the contract covers the provision of other services necessary for the execution of such activities. Service contracts may, in some cases, include works. However, insofar as such works are incidental to the principal subject-matter of the contract, and are only a possible consequence thereof or a complement thereto, the fact that such works are included in the contract does not justify the qualification of the contract as a works contract.

(20) Defence and security contracts often contain classified information which the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. In the military field, the Member States have systems for classifying this information for military purposes. However, when it comes to non-military security matters, there is more diversity in Member States’ practice, where other information must similarly be protected. Therefore, it is appropriate to make use of a concept which takes into account the diversity of practices in Member States and can encompass both the military and non-military fields. At any rate, procurement in these fields should not, where appropriate, affect the obligations arising from Commission Decision 2001/844/EC, ECSC, Euratom of 29 November 2001 amending its internal Rules of Procedure(8) or Council Decision 2001/264/EC of 19 March 2001 adopting the Council’s security regulations(9). Moreover, Article 296(1)(a) of the Treaty gives Member States the possibility to exempt contracts in the fields of both defence and security from the rules of this Directive if the application of this Directive would oblige them to supply information, the disclosure of which they consider contrary to the essential interests of their security. This can be the case in particular where contracts are so sensitive that their very existence must be kept secret.

(21) The contracting authorities/entities should be allowed to use framework agreements, which makes it necessary to provide a definition of framework agreements and specific rules. Under these rules, when a contracting authority/entity enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time-limits and conditions for the submission of tenders, it may enter into contracts based on this framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if not all terms have been fixed in advance, by reopening competition between the parties to the framework agreement. The reopening of competition should comply with certain rules, the aim of which is to guarantee the required flexibility and compliance with the general principles, in particular the principle of equal treatment. For the same reasons, the term of framework agreements should be limited and should not exceed seven years, except in cases that are duly justified by the contracting authorities/entities.

(22) Contracting authorities/entities may make use of electronic purchasing techniques, providing such use complies with the rules drawn up under this Directive and with the principles of equal treatment, non-discrimination and transparency. Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with those principles. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities/entities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority/entity, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.

(23) Centralised purchasing techniques help to increase competition and streamline purchasing. Consequently, Member States should be allowed to provide that contracting authorities/entities may purchase goods, works and/or services through a central purchasing body. Provision should therefore be made for a Community definition of central purchasing bodies and of the conditions under which, in accordance with the principles of non-discrimination and equal treatment, contracting authorities/entities purchasing works, supplies and/or services through a central purchasing body may be deemed to have complied with this Directive. A contracting authority/entity which is bound to apply this Directive should in any event be eligible to act as a central purchasing body. At the same time, Member States should also be free to designate European public bodies not subject to this Directive, such as the European Defence Agency, as central purchasing bodies, provided that such bodies apply procurement rules compliant with all the provisions of this Directive to those purchases.

(24) Contracting authorities/entities may find themselves obliged to award a single contract for acquisitions which is covered partially by this Directive, with the remaining part either falling within the scope of Directive 2004/17/EC or Directive 2004/18/EC or not being subject to this Directive, Directive 2004/17/EC or Directive 2004/18/EC. This applies when the relevant procurements cannot, for objective reasons, be separated and awarded through separate contracts. In such cases the contracting authorities/entities should be able to award a single contract, provided that their decision is not taken for the purpose of excluding contracts from the application of this Directive or of Directive 2004/17/EC or Directive 2004/18/EC.

(25) Multiplying the number of thresholds for applying coordinated provisions complicates matters for contracting authorities/entities. Given the average value of contracts in the fields of defence and security, it is appropriate to align the application thresholds of this Directive to the thresholds that already have to be met by contracting entities in applying Directive 2004/17/EC. The thresholds of this Directive should also be revised together with those of Directive 2004/17/EC when the latter thresholds are revised.

(26) In addition, provision should be made for cases where this Directive does not apply because specific rules on the awarding of contracts which derive from international agreements or arrangements between Member States and third countries apply. The rules under certain agreements relating to the stationing of troops from a Member State in another Member State or a third country, or the stationing of troops from a third country in a Member State, should also preclude the use of award procedures under this Directive. This Directive should not apply either to contracts awarded by international organisations for their purposes or to contracts which must be awarded by a Member State in accordance with rules that are specific to such organisations.

(27) In the fields of defence and security, some contracts are so sensitive that it would be inappropriate to apply this Directive, despite its specificity. That is the case for procurements provided by intelligence services, or procurements for all types of intelligence activities, including counter-intelligence activities, as defined by Member States. It is also the case for other particularly sensitive purchases which require an extremely high level of confidentiality, such as, for example, certain purchases intended for border protection or combating terrorism or organised crime, purchases related to encryption or purchases intended specifically for covert activities or other equally sensitive activities carried out by police and security forces.

(28) Member States often conduct cooperative programmes to develop new defence equipment together. Such programmes are particularly important because they help to develop new technologies and bear the high research and development costs of complex weapon systems. Some of these programmes are managed by international organisations, namely the Organisation conjointe de coopération en matière d’armement (OCCAR) and NATO (via specific agencies), or by agencies of the Union, such as the European Defence Agency, which then award contracts on behalf of Member States. This Directive should not apply to such contracts. For other such cooperative programmes, contracts are awarded by contracting authorities/entities of one Member State also on behalf of one or more other Member States. In these cases too, this Directive should not apply.

(29) In the event that armed forces or security forces from Member States conduct operations beyond the borders of the Union, and when imposed by operational requirements, authorisation should be given to contracting authorities/entities deployed in the field of operations not to apply the rules of this Directive when they award contracts to economic operators located in the area of operations, including with respect to civilian purchases directly connected to the conduct of those operations.

(30) Given the specificity of the defence and security sector, purchases of equipment as well as works and services by one government from another should be excluded from the scope of this Directive.

(31) In the context of services, contracts for the acquisition or rental of immovable property or rights to such property have particular characteristics which make the application of procurement rules inappropriate.

(32) Arbitration and conciliation services are usually provided by bodies or individuals designated or selected in a manner which cannot be governed by procurement rules.

(33) Financial services are also entrusted to persons or bodies under conditions that are not compatible with the application of procurement rules.

(34) Pursuant to Article 163 of the Treaty, the encouragement of research and technological development is a means of strengthening the scientific and technological basis of Community industry, and the opening-up of service contracts contributes to this end. This Directive should not cover the co-financing of research and development programmes. Research and development contracts other than those where the benefits accrue exclusively to the contracting authority/entity for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority/entity, are therefore not covered by this Directive.

(35) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute to integration in society. In this context, sheltered workshops and sheltered employment programmes contribute efficiently towards the integration or reintegration of people with disabilities in the labour market. However, such workshops might not be able to obtain contracts under normal conditions of competition. Consequently, it is appropriate to provide that Member States may reserve the right to participate in award procedures for contracts to such workshops or reserve performance of contracts to the context of sheltered employment programmes.

(36) For the purpose of applying this Directive to the service contracts falling within its scope and for monitoring purposes, services should be subdivided into categories that correspond to particular headings of the CPV classification and brought together in two Annexes according to the regime to which they are subject. As regards services in Annex II, the relevant provisions of this Directive should be without prejudice to the application of Community rules specific to the services in question. However, in order to apply the provisions of this Directive instead of those of Directive 2004/17/EC or Directive 2004/18/EC, it has to be established that the relevant service contracts come within the scope of application of this Directive.

(37) As regards service contracts, full application of this Directive should be limited, for a transitional period, to contracts where its provisions will permit the full potential for increased cross-border trade to be realised. It is necessary to monitor contracts for other services during this transitional period before a decision is taken on the full application of this Directive.

(38) The technical specifications drawn up by contracting authorities/entities need to allow procurement to be opened up to competition. To this end, it must be possible to submit tenders which reflect the diversity of technical solutions. To do so, technical specifications should, on the one hand, be established on the basis of performance and functional requirements. On the other hand, where reference is made to the European standard or to international or national standards, including those specific to the field of defence, tenders based on other equivalent arrangements must be considered by the contracting authorities/entities. This equivalence can be assessed in particular with regard to interoperability and operational efficiency requirements. To demonstrate equivalence, tenderers should be permitted to use any form of evidence. Contracting authorities/entities must be able to provide a reason for any decision that equivalence does not exist in a given case. There are also international agreements on standardisation which aim to ensure the interoperability of the armed forces and which can have the force of law in Member States. Should one of these agreements apply, the contracting authorities/entities may demand that tenders comply with the standards described in that agreement. The technical specifications should be clearly indicated, so that all tenderers know what the requirements established by the contracting authority/entity cover.

(39) The detailed technical specifications and additional information concerning contracts must, as is customary in the Member States, be given in the contract documents for each contract, or in an equivalent document.

(40) Potential subcontractors should not be discriminated against on grounds of nationality. In the context of defence and security, it can be appropriate for contracting authorities/entities to oblige the successful tenderer to organise a transparent and non-discriminatory competition when awarding subcontracts to third parties. This obligation may apply to all subcontracts or only to specific subcontracts chosen by the contracting authority/entity. In addition, it seems appropriate to complement the tenderer’s right to subcontract with the option offered to the Member State to allow or to require its contracting authorities/entities to ask that subcontracts representing at least a certain share of the value of the contract be awarded to third parties on the understanding that related undertakings are not to be regarded as third parties. When such a share is required, the successful tenderer should award subcontracts following a transparent and non-discriminatory competition, so that all interested undertakings have the same opportunity to benefit from the advantages of subcontracting. At the same time, the proper functioning of the successful tenderer’s supply chain should not be jeopardised. Therefore, the percentage that can be subcontracted to third parties at the request of the contracting authority/entity should appropriately reflect the object and value of the contract. During a negotiated procedure or competitive dialogue with subcontracting requirements, the contracting authority/entity and the tenderers may discuss subcontracting requirements or recommendations with a view to ensuring that the contracting authority/entity is fully informed of the impact of different subcontracting options on, in particular, cost, quality or risk. In any event, subcontractors initially proposed by the successful tenderer should be free to participate in competitions organised for the award of subcontracts. In the context of defence and security markets, the Member States and the Commission should also encourage the development and dissemination of best practices between Member States and European industry with a view to promoting free movement and competitiveness in Union subcontracting markets, as well as the effective management of suppliers and SMEs, in order to achieve the best value for money. Member States should communicate to all successful tenderers the benefits of transparent and competitive tendering and supplier diversity for subcontracts, and develop and disseminate best practice on supply-chain management in the defence and security markets.

(41) Contract performance conditions are compatible with this Directive provided that they are not directly or indirectly discriminatory and are indicated in the contract notice or the contract documents.

(42) In particular, the conditions of performance may contain requirements by the contracting authorities/entities as regards security of information and security of supply. These requirements are particularly important given the sensitive nature of the equipment covered by this Directive, and concern the whole of the supply chain.

(43) In order to ensure security of information, contracting authorities/entities may require in particular commitments from both contractors and subcontractors to protect classified information against unauthorised access, as well as sufficient information regarding their capacity to do so. In the absence of a Community regime on security of information, it is for the contracting authorities/entities or Member States to define these requirements in accordance with their national laws and regulations, and to determine whether they consider security clearances issued in accordance with the national law of another Member State as equivalent to those issued by their own competent authorities.

(44) Security of supply can imply a great variety of requirements, including, for example, internal rules between subsidiaries and the parent company with respect to intellectual property rights, or the provision of critical service, maintenance and overhaul capacities to ensure support for purchased equipment throughout its life-cycle.

(45) In any case, no performance conditions may pertain to requirements other than those relating to the performance of the contract itself.

(46) The laws, regulations and collective agreements, at both national and Community levels, which are in force in the areas of employment conditions and safety at work apply during performance of a contract, provided that such rules, and their application, comply with Community law. In cross-border situations, where workers from one Member State provide services in another Member State for the purpose of performing a contract, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services(10) lays down the minimum conditions which must be observed by the host country in respect of such posted workers. If national law contains provisions to this effect, non-compliance with those obligations may be considered to be grave misconduct or an offence concerning the professional conduct of the economic operator concerned liable to lead to the exclusion of that economic operator from the procedure for the award of a contract.

(47) The contracts covered by this Directive are characterised by specific requirements in terms of complexity, security of information or security of supply. Extensive negotiation is often required to satisfy these requirements when awarding contracts. As a result, the contracting authorities/entities may use the negotiated procedure with the publication of a contract notice, as well as the restricted procedure, for contracts covered by this Directive.

(48) Contracting authorities/entities which carry out particularly complex projects may, without any fault on their part, find it objectively impossible to define the means of satisfying their needs or to assess what the market can offer in the way of technical solutions and/or financial or legal solutions. This situation may arise in particular in the case of projects requiring the integration or combination of several technological or operational capabilities, or projects involving complex and structured financing, the financial and legal make-up of which cannot be defined in advance. In this case, use of the restricted procedure and the negotiated procedure with the publication of a contract notice would not be feasible, as it would not be possible to define the contract with enough precision to allow candidates to draw up their offers. It is therefore necessary to provide for a flexible procedure ensuring competition between economic operators and allowing the contracting authorities/entities to discuss all aspects of the contract with each candidate. However, this procedure must not be used in such a way as to restrict or distort competition, particularly by altering any fundamental aspect of the tender, by imposing substantial new requirements on the successful tenderer or by involving any tenderer other than the one selected as the most economically advantageous.

(49) Before launching a procedure for the award of a contract, contracting authorities/entities may, using a technical dialogue, seek or accept advice which may be used in the preparation of specifications, provided, however, that such advice does not have the effect of precluding competition.

(50) Use of the negotiated procedure with publication of a contract notice could be impossible or entirely inappropriate in certain exceptional circumstances. The contracting authorities/entities should thus, in certain very specific cases and circumstances, be able to use the negotiated procedure without publication of a contract notice.

(51) Certain circumstances should be partly the same as those provided for in Directive 2004/18/EC. In this respect, consideration should be given in particular to the fact that defence and security equipment is often technically complex. Consequently, incompatibility or disproportionate technical difficulties in operation and maintenance justifying the use of the negotiated procedure without publication of a contract notice in the case of supply contracts for additional deliveries should be assessed in the light of this complexity and the associated requirements for interoperability and standardisation of equipment. This is the case, for example, for the integration of new components into existing systems or for the modernisation of such systems.

(52) It may be the case for certain purchases within the scope of this Directive that only one economic operator is able to execute the contract because it holds exclusive rights, or for technical reasons. In such cases, the contracting authority/entity should be allowed to award contracts or framework agreements directly to that economic operator. However, technical reasons for only one economic operator being able to execute a contract should be rigorously defined and justified on a case-by-case basis. They could include, for instance, strict technical impracticability for a candidate other than the chosen economic operator to achieve the required goals, or the necessity to use specific know-how, tools or means which only one operator has at its disposal. This may be the case, for example, for the modification or retrofitting of particularly complex equipment. Technical reasons may also derive from specific interoperability or safety requirements which must be fulfilled in order to ensure the functioning of the armed forces or security forces.

(53) The specific nature of the contracts subject to this Directive also demonstrates the need to provide for new circumstances which may arise in the fields covered by it.

(54) The armed forces of Member States may, for example, be called on to intervene in crisis situations abroad, for instance as part of peace-keeping operations. At the launch, or during the course, of such an intervention, the security of Member States and their armed forces may necessitate the award of certain contracts at a speed which is incompatible with the usual deadlines imposed by the award procedures laid down by this Directive. Such emergencies could also arise for the security forces, for example in the case of a terrorist attack on the territory of the Union.

(55) Stimulating research and development is a key way of strengthening the European Defence Technological and Industrial Base, and the opening-up of procurement helps to achieve this objective. The importance of research and development in this specific field justifies maximum flexibility in the award of contracts for research supplies and services. At the same time, however, this flexibility should not preclude fair competition in the later phases of the life cycle of a product. Research and development contracts should therefore cover activities only up to the stage where the maturity of new technologies can be reasonably assessed and de-risked. Research and development contracts should not be used beyond that stage as means of avoiding the provisions of this Directive, including by predetermining the choice of tenderer for the later phases. On the other hand, the contracting authority/entity should not have to organise a separate tender for the later phases if the contract which covers the research activities already includes an option for those phases and was awarded through a restricted procedure or a negotiated procedure with the publication of a contract notice, or, where applicable, a competitive dialogue.

(56) In order to ensure transparency, provision should be made for rules on publication by the contracting authorities/entities of appropriate information prior to, and at the end of, the award procedure. In addition, further specific information should be provided to candidates and tenderers regarding the results of that procedure. However, contracting authorities/entities should be allowed to withhold some of the information so required when and insofar as its release would impede law enforcement or otherwise be contrary to the public interest, harm the legitimate commercial interests of economic operators or might prejudice fair competition between them. In the light of the nature and the features of the works, supplies and services covered by this Directive, grounds of public interest relating to compliance with national mandatory provisions falling within the scope of national public policy, notably with regard to defence and security, are of particular relevance in this regard.

(57) In view of new developments in information and communications technology, and the simplifications these can bring, electronic means should be put on a par with traditional means of communication and information exchange. As far as possible, the means and technology chosen should be compatible with the technologies used in other Member States.

(58) To ensure the development of effective competition in the field of procurement covered by this Directive, it is necessary that contract notices drawn up by the contracting authorities/entities of Member States be advertised throughout the Community. The information contained in these notices must enable economic operators in the Community to determine whether the proposed contracts are of interest to them. For this purpose, they must be given adequate information as regards the subject-matter of the contract and the conditions attached thereto. Improved visibility should therefore be ensured for public notices by means of appropriate instruments, such as standard contract notice forms and the CPV, which is the reference nomenclature for contracts.

(59) Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures(11) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce)(12) should, in the context of this Directive, apply to the transmission of information by electronic means. Procurement procedures require a level of security and confidentiality higher than that required by those Directives. Accordingly, devices for the electronic receipt of offers and requests to participate should comply with specific additional requirements. To this end, the use of electronic signatures, in particular advanced electronic signatures, should be encouraged to as great an extent as possible. Moreover, the existence of voluntary accreditation schemes could constitute a favourable framework for enhancing the level of certification service provision for these devices.

(60) The use of electronic means leads to savings in time. As a result, provision should be made for reducing the minimum time-limits for receipt of offers and requests to participate where electronic means are used, subject however to the condition that they are compatible with the specific modes of transmission envisaged at Community level.

(61) Verification of the suitability of candidates and the selection thereof should be carried out in transparent conditions. For this purpose, non-discriminatory criteria should be indicated which the contracting authorities/entities may use when selecting competitors and the means which economic operators may use to prove they have satisfied those criteria. In the same spirit of transparency, the contracting authority/entity should be required, as soon as a contract is put out to competition, to indicate the selection criteria it will use and the level of specific competence it may, where appropriate, demand of economic operators before admitting them to the procurement procedure.

(62) A contracting authority/entity may limit the number of candidates in the restricted and negotiated procedures with publication of a contract notice and in a competitive dialogue. Any reduction in the number of candidates should be performed on the basis of objective criteria indicated in the contract notice. For criteria relating to the personal situation of economic operators, a general reference in the contract notice to the situations set out in this Directive may suffice.

(63) In the competitive dialogue and negotiated procedures with publication of a contract notice, in view of the flexibility which may be required and the high level of costs associated with such methods of procurement, contracting authorities/entities should be entitled to make provision for the procedure to be conducted in successive stages in order gradually to reduce, on the basis of previously indicated contract award criteria, the number of tenders which they will go on to discuss or negotiate. This reduction should, insofar as the number of appropriate solutions or candidates allows it, ensure that there is genuine competition.

(64) The relevant Community rules on the mutual recognition of diplomas, certificates or other evidence of formal qualifications apply when evidence of a particular qualification is required for participation in a procurement procedure.

(65) The award of contracts to economic operators which have participated in a criminal organisation or which have been found guilty of corruption or fraud to the detriment of the financial interests of the European Communities, money laundering, the financing of terrorism or terrorist and terrorism-related offences, should be avoided. Where appropriate, the contracting authorities/entities should ask candidates or tenderers to supply relevant documents and, where they have doubts concerning the personal situation of a candidate or tenderer, may seek the cooperation of the competent authorities of the Member State concerned. Such economic operators should be excluded as soon as the contracting authority/entity has knowledge of a judgment concerning such offences rendered in accordance with national law that has the force of res judicata. If national law contains provisions to this effect, non-compliance with procurement legislation on unlawful agreements which has been the subject of a final judgment or a decision having equivalent effect may be considered an offence concerning the professional conduct of the economic operator concerned or grave misconduct. It should also be possible to exclude economic operators if the contracting authority/entity has information, where applicable provided by protected sources, establishing that they are not sufficiently reliable so as to exclude risks to the security of the Member State. Such risks could derive from certain features of the products supplied by the candidate, or from the shareholding structure of the candidate.

(66) Non-compliance with national provisions implementing Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation(13) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions(14) which has been the subject of a final judgment or a decision having equivalent effect may be considered an offence concerning the professional conduct of the economic operator concerned or grave misconduct.

(67) Given the sensitive nature of the defence and security sectors, the reliability of economic operators to which contracts are awarded is vital. This reliability depends, in particular, on their ability to respond to requirements imposed by the contracting authority/entity with respect to security of supply and security of information. In addition, nothing in this Directive should prevent a contracting authority/entity from excluding an economic operator at any point in the process for the award of a contract if the contracting authority/entity has information that to award all or any part of the contract to that economic operator could cause a risk to the essential security interests of that Member State.

(68) In the absence of a Community regime as regards the security of information, it is for the contracting authorities/entities or Member States to define the level of technical capacity which is required in this regard for participation in an award procedure and to assess whether candidates have achieved the required security level. In many cases, Member States have bilateral security agreements with rules on the mutual recognition of national security clearances. Even where such agreements exist, the capacities of economic operators from other Member States as regards security of information can be verified, and such verification should be carried out in accordance with the principles of non-discrimination, equal treatment and proportionality.

(69) Contracts should be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which guarantee that tenders are assessed in a transparent and objective manner under conditions of effective competition. As a result, it is appropriate to allow the application of two award criteria only: ‘the lowest price’ and ‘the most economically advantageous tender’.

(70) To ensure compliance with the principle of equal treatment in the award of contracts, it is appropriate to lay down an obligation, which has been established by case-law, to ensure the necessary transparency to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied to identify the most economically advantageous tender. It is therefore the responsibility of contracting authorities/entities to indicate the criteria for the award of the contract and the relative weighting given to each of those criteria, in sufficient time for tenderers to be aware of them when preparing their tenders. Contracting authorities/entities may derogate from indicating the weighting of the criteria for the award in duly justified cases for which they must be able to give reasons where the weighting cannot be established in advance, in particular on account of the complexity of the contract. In such cases, they must indicate the descending order of importance of the criteria.

(71) Where the contracting authorities/entities choose to award a contract to the most economically advantageous tender, they shall assess the tenders in order to determine which one offers the best value for money. In order to do this, they shall determine the economic and quality criteria which, taken as a whole, must make it possible to determine the most economically advantageous tender for the contracting authority/entity. The determination of these criteria depends on the object of the contract, since they must allow the level of performance offered by each tender to be assessed in the light of the object of the contract, as defined in the technical specifications, and the value for money of each tender to be measured.

(72) Compliance with transparency and competition obligations should be ensured by an efficient review system, based on the system which Council Directives 89/665/EEC(15) and 92/13/EEC(16), as amended by Directive 2007/66/EC of the European Parliament and of the Council(17), provide for contracts covered by Directives 2004/17/EC and 2004/18/EC. In particular, the possibility of challenging the award procedure before the contract is signed should be provided for, as should the guarantees necessary for the efficiency of the review, such as the standstill period. The possibility of challenging illegal direct awards or contracts concluded in violation of this Directive should also be provided for.

(73) However, review procedures should take into account the protection of defence and security interests as regards the procedures of review bodies, the choice of interim measures or penalties for infringements of obligations relating to transparency and competition. In particular, Member States should be able to provide that the review body independent of the contracting authority/entity, may not consider a contract ineffective, even though it has been awarded illegally on the grounds referred to in this Directive, where it finds, after having examined all relevant aspects, that the exceptional circumstances of the case concerned require certain overriding reasons relating to a general interest to be respected. In the light of the nature and features of the works, supplies and services covered by this Directive, such overriding reasons should be first and foremost related to the general interests of defence and security of Member States. This can be the case, for example, when the ineffectiveness of a contract would seriously endanger not only the fulfilment of the specific project aimed at by it, but the very existence of a wider defence and/or security programme of which the project is a part.

(74) Certain technical conditions, and in particular those concerning notices and statistical reports, as well as the nomenclature used and the conditions of reference to that nomenclature, need to be adopted and amended in the light of changing technical requirements. It is therefore appropriate to put in place a flexible and rapid adoption procedure for this purpose.

(75) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(18).

(76) In particular, the Commission should be empowered to revise the threshold amounts for contracts by aligning them to the thresholds laid down in Directive 2004/17/EC and to amend certain reference numbers in the CPV nomenclature and the procedures for reference in notices to certain headings in the CPV, as well as the technical details and characteristics of devices for electronic receipt. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(77) When, on imperative grounds of urgency, the normal time-limits for the regulatory procedure with scrutiny cannot be complied with, the Commission should be able to apply the urgency procedure provided for in Article 5a(6) of Decision 1999/468/EC for the adoption of these measures.

(78) In accordance with point 34 of the Interinstitutional agreement on better law-making(19), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

(79) The Commission should carry out a periodic assessment to examine whether the defence equipment market is functioning in an open, transparent and competitive way, including the impact of this Directive on the market, for example on involvement of SMEs,

HAVE ADOPTED THIS DIRECTIVE:

(1)

OJ C 100, 30.4.2009, p. 114.

(2)

Opinion of the European Parliament of 14 January 2009 (not yet published in the Official Journal) and Council Decision of 7 July 2009.

(3)

OJ C 280 E, 18.11.2006, p. 463.

(4)

Decision defining the list of products (arms, munitions and war material) to which the provisions of Article 223(1)(b) — now Article 296(1)(b) — of the Treaty apply (doc. 255/58). Minutes of 15 April 1958: doc. 368/58.

(5)

OJ L 134, 30.4.2004, p. 1.

(6)

OJ L 134, 30.4.2004, p. 114.

(7)

OJ L 340, 16.12.2002, p. 1.

(8)

OJ L 317, 3.12.2001, p. 1.

(9)

OJ L 101, 11.4.2001, p. 1.

(10)

OJ L 18, 21.1.1997, p. 1.

(11)

OJ L 13, 19.1.2000, p. 12.

(12)

OJ L 178, 17.7.2000, p. 1.

(13)

OJ L 303, 2.12.2000, p. 16.

(14)

OJ L 39, 14.2.1976, p. 40.

(15)

Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, 30.12.1989, p. 33).

(16)

Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p. 14).

(17)

Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ L 335, 20.12.2007, p. 31).

(18)

OJ L 184, 17.7.1999, p. 23.

(19)

OJ C 321, 31.12.2003, p. 1.