Changes from plenary report to adopted text

RemovedDirective 2009/43/EC

Added▌

RemovedArticle 1 – paragraph 1 – point 1 – introductory part, Article 3 – point 8 and 8 a (new): (1) in Article 3, the following points 8 and 8a are added:

Added(7) To ensure the effective and efficient functioning of the intra-EU transfer system for defence-related products , Member States should ensure that all suppliers wishing to transfer such products from their territory are able to use general transfer licences or apply for global or individual transfer licences. Any pre-conditions imposed by Member States should be based only on criteria of direct relevance to the suppliers’ ability to respect the legislation in the field of transfer and export control. Criteria, such as the suppliers’ legal form or status, should not prevent some categories of suppliers from using general transfer licences or from applying for global or individual transfer licences.

RemovedDirective 2009/43/EC

Added(8) ▌It is appropriate to introduce a general transfer licence for transfers between certified suppliers and certified recipients. To further foster cooperation between, and the integration of, those undertakings, such a general transfer licence should cover more defence-related products than the existing general transfer licences for transfers to certified recipients. Certified▌ 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-EU transfers. As a consequence of the introduction of such a general transfer licence, Article 9 of Directive 2009/43/EC should be amended to take into account the certification of suppliers.

RemovedArticle 1 – paragraph 1 – point 1, Article 3 – point 8 a (new): 8a. European strategic cross-border partnership’ means a strategic collaboration arrangement between two or more entities established in different Member States, where such entities repeatedly engage in joint development , production, assembly, supply, marketing, or life-cycle support of a defence-related product, such as European collaborative defence projects, defence-related projects funded under a Union programme, a European Defence Project of Common Interest (EDPCI), a project under Permanent Structured Cooperation (PESCO) or a collaborative armament programme between Member States, such as a Structure for a European Armament Programme (SEAP).’ ;

Added(9) 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.

RemovedDirective 2009/43/EC

Added(10) Directive 2009/43/EC provides that Member States are able to introduce general transfer licences other than those listed in Article 5(2) of that Directive. However, that possibility could be hampered by national rules limiting flexibility and the capacity of national competent 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. Through an increased use of general transfer licences, Member States would contribute to the proper functioning and further integration of the European defence market across the Union, including intra-EU cross-border access to defence supply chains, especially for SMEs and mid-caps. 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.

RemovedArticle 1 – paragraph 1 – point 2 – point a, Article 4 – paragraph 2: 2. Notwithstanding paragraph 1, Member States shall exempt transfers of defence-related products from the obligation of prior authorisation set out in that paragraph in one or more of the following cases:

Added(11) The implementation of Union defence industrial programmes, such as the European Defence Fund (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. SMEs in particular are disproportionately affected by those delays, which means that they suffer competitive disadvantages compared to larger market players. Those delays ▌ have a detrimental impact on the overall efficiency and effectiveness of those 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. It is therefore necessary to introduce general transfer licences for those programmes. The scope of those general transfer licences should apply to all transfers, whether tangible or non-tangible, that the supplier has to perform for the implementation of the project and as far as possible along the entire supply chain. Those general transfer licences should cover the defence-related products set out in the Annex to Directive 2009/43/EC and should apply only to the transfers necessary for the implementation of specific projects. Those general transfer licences should only cover intra-EU transfers of defence-related products. Where an entity established in a third country also participates in a project funded by a Union defence industrial programme, the control of exports to such a third country entity should not be influenced by the provisions of that Directive and should remain subject to Member States’ policy on export control.

RemovedDirective 2009/43/EC

AddedMember States should, insofar as possible, 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.

RemovedArticle 1 – paragraph 1 – point 2 – point a, Article 4 – paragraph 2 – point a: (a) the supplier or the recipient is a governmental body or part of the armed forces or another national security authority;

Added(12) Additionally, taking account of the technological evolution, it is necessary to adapt the requirements on the information to be provided by suppliers of defence-related products, as the current provisions could prove burdensome in cases of non-tangible transfers of software and technology. It is appropriate to provide suppliers with the required flexibility while maintaining accountability, transparency and control, in order to facilitate the efficient and effective transfer of defence products within the Union. The need for the modification of those requirements for non-tangible transfers of software and technology requires a case-by-case assessment. Therefore, Member States should ensure that those requirements are not disproportionate for the suppliers. Those requirements should be proportionate to the control objectives of Member States and adapted as necessary to monitor transfer activity without imposing undue obligations on suppliers.

RemovedDirective 2009/43/EC

Added(13) In order to facilitate cooperation between undertakings within the Union, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission with a view to amending the list of transfers that can be exempted from the obligation of prior authorisation, in order to include cases where transfers are necessary for intra-EU cooperation. It is of particular importance ▌ that the Commission carry 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.

RemovedArticle 1 – paragraph 1 – point 2 – point a, Article 4 – paragraph 2 – point c: deleted

Added(14) 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 TFEU.

RemovedDirective 2009/43/EC

Added(15) To develop the necessary capabilities and military readiness to credibly deter armed aggression and strengthen the Union’s security and strategic autonomy, a significant increase in European defence investment is needed. Based on projections of gradual take-up, defence investment could reach at least EUR 800 billion over the next four years, including the expenditure financed by the EUR 150 billion 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. In order to ensure that increased spending also leads to increased capabilities, it is ▌ 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.

RemovedArticle 1 – paragraph 1 – point 2 – point a, Article 4 – paragraph 2 – point c a: deleted

AddedMember 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.

RemovedDirective 2009/43/EC

Added(16) To achieve the necessary agility to respond to emerging security needs, 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 and ease the administrative burden on the industry for smaller procurement procedures, which would help to reduce the regulatory complexity and costs associated with those contracts, while also fostering greater participation of those entering the market, in particular start-ups and scale-ups, in smaller and more accessible procurement opportunities. However, even where a contract does not reach the threshold amounts, the general principles of public procurement under Union law, including transparency, non-discrimination and equality of treatment, and proportionality remain applicable.

RemovedArticle 1 – paragraph 1 – point 2 – point a, Article 4 – paragraph 2 – point c b: (cb) the transfer takes place in the framework of a European strategic cross-border partnership;

Added(17) Furthermore, Member States should be given the flexibility to benefit 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. It is important that contracting authorities/entities use more quality-price criteria whenever possible when utilising a dynamic purchasing system.

RemovedDirective 2009/43/EC

Added(18) There is an urgent need for the Union to mobilise its overall capacity for innovation and direct significant investments to regaining edge, in order to 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 are future-proof and yield 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. ▌

RemovedArticle 1 – paragraph 1 – point 2 – point a, Article 4 – paragraph 2 – point c c: (cc) the transfer takes place in an urgency resulting from a crisis, or in a situation where the EU's mutual assistance clause provided for in Article 42(7) TEU has been activated by one or several Member States;

Added(19) Directive 2009/81/EC sets out specific rules applicable in cases of urgency resulting from a crisis, such as shortening periods for the receipt of tenders and the possibility to use the negotiated procedure without prior publication of a contract notice. In that context it is important to underline the dynamic nature of the term ‘crisis’, to clarify that it includes emergency situations arising from the evolution of prolonged crisis situations, including development of the geopolitical situation. The definition of a crisis under Article 1, point (10), of Directive 2009/81/EC acknowledges that a crisis can persist and evolve over time, beyond the harmful event that triggered it.

RemovedDirective 2009/43/EC

Added▌

RemovedArticle 1 – paragraph 1 – point 2 – point a a (new), Article 4 – paragraph 2 a (new): (aa) the following paragraph is inserted: ’2a. Notwithstanding paragraph 1, Member States may exempt transfers of defence related non-tangible technologies from the obligation of prior authorisation set out in that paragraph where the supplier and the recipient belong to the same company or group of companies.’

Added▌

RemovedDirective 2009/43/EC

Added(20) 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 improving the 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.

RemovedArticle 1 – paragraph 1 – point 2 – point b, Article 4 – paragraph 3 – introductory part: 3. The Commission is empowered to adopt delegated acts to supplement this Directive in accordance with Article 13a, at the request of a Member State or on its own initiative, amending paragraph 2, in order to include any of the following additional cases:

Added(21) To further support the common procurement and ensure legal certainty, it is necessary to amend Directive 2009/81/EC to lay down rules on procurement involving contracting authorities/entities from different Member States.

RemovedDirective 2009/43/EC

Added(22) To be able to respond swiftly and in a coordinated manner to emerging security challenges, contracting authorities/entities are able to allow counterparts from other Member States to join an existing framework agreement during its term even if the framework agreement does not envisage such an option, as provided for in Regulation (EU) 2025/2643 of the European Parliament and of the Council. This enhances efficiency, prevents duplication of procedures, and promotes cross-border cooperation, interoperability and economies of scale.

RemovedArticle 1 – paragraph 1 – point 2 – point b, Article 4 – paragraph 3 – point c: (c) the transfer is necessary for intergovernmental cooperation, as referred to in Article 1(4);

Added(23) To provide Member States with greater predictability and stability in their defence procurement planning, it is necessary to modify the rules governing framework agreements. To reflect the specificities of the defence sector, it is necessary to extend the maximum possible duration of framework agreements to 10 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.

RemovedDirective 2009/43/EC

Added(24) 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.

RemovedArticle 1 – paragraph 1 – point 2 – point b, Article 4 – paragraph 3 – point d a (new): (da) the transfer is necessary to strengthen the internal market for defence;

Added(25) Where possible, contracting authorities/entities should structure framework agreements, dynamic purchasing systems and innovation partnerships in a manner that facilitates the participation of SMEs, including through the use of lots, proportionate selection criteria, and non-discriminatory technical specifications such as the access of dual-use technology providers and companies operating in both civilian and defence sectors, including local innovative companies and operators from smaller Member States with developing industries.

RemovedDirective 2009/43/EC

Added(26) To reduce the administrative burden on Member States, some statistical reporting obligations related to defence procurement should be temporarily suspended to allow national authorities to focus on the implementation of their defence policies and the efficient use of their resources, while not jeopardising transparency and accountability.

RemovedArticle 1 – paragraph 1 – point 3 – point a – point ii – introductory part, Article 5 – paragraph 2 – point e: (ii) the following points (e) and (ea) are inserted:

Added(27) 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(1), Article 62 and Article 114 TFEU.

RemovedDirective 2009/43/EC

Added(28) Since the objectives of this Directive, namely the simplification of the rules applicable to the intra-EU transfer of defence-related products and to the procurement of works, supply and service contracts in the fields of defence and security in order to ensure the proper functioning of the internal market, cannot be sufficiently achieved by the Member States in view of the cross-border nature of defence-related transfers and procurement, but can better be achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

RemovedArticle 1 – paragraph 1 – point 3 – point a – point ii, Article 5 – paragraph 2 – point e a (new): ‘(ea) the transfer aims to develop Union-based disruptive technologies or innovative industrial processes or to address critical readiness gaps’;

Added(29) Directives 2009/43/EC and 2009/81/EC should therefore be amended accordingly,

RemovedDirective 2009/43/EC

AddedHAVE ADOPTED THIS DIRECTIVE:

RemovedArticle 1 – paragraph 1 – point 4, Article 5 a – title: Licences for transfers necessary for the implementation of European strategic cross-border partnerships

AddedArticle 1 Amendments to Directive 2009/43/EC