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01.07.2025

Legal Alert | Commission proposes simplification of intra-community transfers of defence-related products and public procurement in the field of security and defence

Legal Alert | Commission proposes simplification of intra-community transfers of defence-related products and public procurement in the field of security and defence

On 17 June 2025, the European Commission presented proposals to speed up the development of the EU's defence industry, reducing bureaucracy and facilitating the mobilisation of 800 billion euros. The measures include amending Directives 2009/43/EC and 2009/81/EC, with more licensing exemptions, more flexible public procurement procedures, the promotion of joint acquisitions and increased investment from the European Defence Fund, with the aim of increasing the Union's capacity to respond to geopolitical challenges by 2030.

Following the White Paper on European Defence – Readiness 2030, the European Commission (Commission) presented a set of proposals to cut red tape and facilitate the mobilisation of the 800 billion euros needed for Member States (MS) to ensure the rapid and large-scale development of defence industries. 

In particular, on 17 June 2025, the Commission presented a ​proposal to amend Directive 2009/43/EC​ simplifying terms and conditions of transfers of defence-related products and Directive 2009/81/EC on the coordination procedures for the award of certain work contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security. 

As for the proposal to amend Directive 2009/43/EC, the Commission is extending the range of intra-Community transfers that may not require prior authorisation. Specifically, the proposal provides for authorisation to be waived for:

  • Transfers to EU institutions or to the European Defence Agency;
  • Transfers associated with programmes financed by European funds or structured industrial cooperation between MS; and
  • Transfers for EU military assistance missions that are exempt from prior authorisation. 

The Commission’s proposal foresees that MS will be obliged to establish sufficiently broad general transfer licences (namely for European Defence Fund (EDF) projects). In this context, the proposal provides for the possibility of certified recipient entities also benefiting from a general licence.

Finally, the Commission’s proposal provides for the strengthening of its delegated powers to introduce new exemptions or harmonise conditions of application through delegated acts and simplifies reporting information on the transfer of non-tangible technology in order to avoid an excessive bureaucratic burden and encourage innovation.

As for the proposed amendment to Directive 2009/81/EC, the thresholds that determine the applicability of the directive are raised: (a) for supply and service contracts, the threshold almost doubles from the current EUR 443 000 to EUR 900 000; and (b) for works, the threshold is now set at EUR 7 000 000 (compared to the current EUR 5 538 000).

In order to strengthen public procurement mechanisms, the Commission also proposes introducing new procedures already included in ​Directive 2014/24/EU​ (on public procurement) to the defence field, such as the open procedure and the dynamic purchasing system. Similarly, the Commission proposal establishes a simplified innovation partnership procedure.

The Commission also seeks to encourage collaborative investments between MS by strengthening the recognition and compatibility of purchases made through a central purchasing body in another MS. 

In an effort to speed up defence stock replenishments, the proposal establishes the possibility of using an unannounced negotiated procedure, until 1 January 2031, for joint purchases of military equipment already available on the market.

The Commission’s proposal also makes provision for framework agreements to have a maximum duration of ten years, allowing more complex projects to be implemented with the necessary certainty and stability. Finally, the statistical reports currently required are eliminated and the rules on contractual modification are brought into line with those laid down in Directive 2014/24/EU.

Regarding a range of other defence legislation, the Commission’s work will also focus on strengthening EDF investments, in particular by speeding up the proposals submitted through clarifying and simplifying the criteria, as well as increasing Ukraine’s participation in EDF actions.

The Commission’s proposal establishes a set of more agile instruments capable of stimulating innovation and development in the security and defence industry, in order to substantially increase the Union’s capacity to respond to geopolitical challenges before the end of the decade. 

Morais Leitão’s team will continue to closely monitor sectoral developments likely to have a direct impact on its defence industry clients.