Changes from plenary report to adopted text

Added(3) Article 5 is amended as follows:

RemovedArticle 2 – paragraph 1 – point 10 – point b – introductory part, Article 28 – paragraph 1 – point 2 – point c: (b) in point (2), the following points (c) and (ca) are added:

Added(a) paragraph 2 is amended as follows:

RemovedDirective 2009/81/EC

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RemovedArticle 2 – paragraph 1 – point 10 – point b, Article 28 – paragraph 1 – point c – point iii: (iii) the value of the products or services does not exceed 40 times the value of the research and development contract from which it results;

Added(i) the following point is inserted:

RemovedDirective 2009/81/EC

Added‘(ba) the recipient and the supplier are undertakings certified in accordance with Article 9;’;

RemovedArticle 2 – paragraph 1 – point 10 – point b, Article 28 – paragraph 1 – point c – point iv: (iv) the contractors and their subcontractors are established, have their principal place of business, and perform the research and development contract and the supply contract using resources located in a Member State or in an EEA EFTA state or in Ukraine;

Added(ii) the following points are added:

RemovedDirective 2009/81/EC

Added‘(e) the publication is required by Article 5a;

RemovedArticle 2 – paragraph 1 – point 10 – point b, Article 28 – paragraph 1 – point c a (new): ‘(ca) by way of derogation from point 2 (c) (vi), a legal entity established in the Union, in an EEA EFTA State or Ukraine and controlled by another third country or by another third-country entity may be eligible as a contractor or subcontractor if guarantees approved with the national procedures of a Member State in which it is established, such as adequate measures pursuant to screenings, as set out in Article 2, point (3), of Regulation (EU) 2019/452, are made available to the Commission. The guarantees referred to in the first subpoint of this point shall provide assurances that the involvement in an action of a legal entity as referred to in that subpoint would not contravene the security and defence interests of the Union and its Member States as established in the framework of the Common Foreign and Security Policy (CFSP) pursuant to Title V of the Treaty on European Union (TEU), including respect for the principle of good neighbourly relations.’;

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RemovedDirective 2009/81/EC

Added(f) the publication is required by Article 5b.’;

RemovedArticle 2 – paragraph 1 – point 10 – point c, Article 28 – paragraph 1 – point 3 – point d – point ii: (ii) the contract covers at least joint maintenance for the procured defence products in addition to the procurement of the defence products. The requirement for the contract covering joint maintenance may be waived only in case the procured defence product typically does not require maintenance;

Added(iii) the following subparagraph is added:

RemovedDirective 2009/81/EC

Added‘The general transfer licence referred to in point (ba) of the first subparagraph shall apply at least to the defence-related products covered under the general transfer licence referred to in point (b) of the first subparagraph.’;

RemovedArticle 2 – paragraph 1 – point 10 – point c, Article 28 – paragraph 1 – point 3 – point d – point iv: (iv) by way of derogation from point 3 (d) (iii), a legal entity established in the Union, in an EEA EFTA State or Ukraine and controlled by another third country or by another third-country entity may be eligible as a contractor if guarantees approved with the national procedures of a Member State in which it is established, such as adequate measures pursuant to screenings, as set out in Article 2, point (3), of Regulation (EU) 2019/452, are made available to the Commission. The guarantees shall provide assurances that the involvement in an action of a legal entity would not contravene the security and defence interests of the Union and its Member States as established in the framework of the Common Foreign and Security Policy (CFSP) pursuant to Title V of the Treaty on European Union (TEU), including respect for the principle of good neighbourly relations. The guarantees shall in particular substantiate that, for the purposes of an action, measures are in place to ensure that: (a) control over the legal entity is not exercised in a manner that restrains or restricts its ability to carry out the action and to deliver results; (b) access by a third-country which is not an EEA, EFTA State or Ukraine or by a third-country entity which is not established in an EEA, EFTA State or Ukraine to sensitive or classified information relating to the action is prevented and the employees or other persons involved in the action have national security clearance issued by a Member State, an …

Added(b) the following paragraph is inserted:

RemovedDirective 2009/81/EC

Added‘2a. Member States shall provide in their legislation the possibility to introduce general transfer licences other than those referred to in Article 5(2).’;

RemovedArticle 2 – paragraph 1 – point 10 – point c, Article 28 – paragraph 1 – point 3 – point d – point v: (v) the contractors involved in the common procurement may be considered to fulfil the eligibility conditions referred to in point (ii) and (iii) where they have fulfilled equivalent conditions under Regulations (EU) 2025/XXX EDIP, (EU) 2018/1092**, (EU) 2021/697***, (EU) 2023/1525**** or (EU) 2023/2418***** of the European Parliament and of the Council and provided that no subsequent changes call into question the fulfilment of those conditions;

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RemovedDirective 2009/81/EC

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RemovedArticle 2 – paragraph 1 – point 10 – point c, Article 28 – paragraph 1 – point 3 – point d – point vi: (vi) the infrastructure, facilities, assets and resources of the contractors and subcontractors involved in the common procurement which are used for the purposes of the common procurement shall be located in the territory of a Member State, an EEA EFTA State or Ukraine. Where contractors or subcontractors involved in the common procurement have no readily available alternatives or relevant infrastructure, facilities, assets and resources on the territory of a Member State, an EEA EFTA State or Ukraine, they may use their infrastructure, facilities, assets and resources which are located or held outside those territories, provided that such use does not contravene the security and defence interests of the Union and its Member States;

Added(c) paragraph 3 is replaced by the following:

RemovedDirective 2009/81/EC

Added‘3. Member States participating in an intergovernmental cooperation programme, such as PESCO projects, SEAPs, and EDPCIs, concerning the development, production and use of one or more defence-related products may publish a general transfer licence for such transfers to other Member States which participate in that programme as are necessary for the execution of that programme.’;

RemovedArticle 2 – paragraph 1 – point 10 – point c, Article 28 – paragraph 1 – point 3 – point d – point vii: (vii) the cost of components originating outside the Union, the EEA EFTA States, Albania, Canada, Japan, Moldova, North Macedonia, Norway, South Korea, Ukraine and the United Kingdom shall not be higher than 35 % of the estimated cost of the components of the end product;’;

Added(4) the following Articles are inserted:

RemovedDirective 2009/81/EC

Added‘Article 5a

RemovedArticle 2 – paragraph 1 – point 11 – introductory part, Article 29 – paragraph 2: (11) Article 29 is amended as follows: (a) in paragraph 2, the fourth subparagraph is replaced by the following:

AddedLicences for transfers necessary for the implementation of projects funded under Union defence industrial programmes

RemovedDirective 2009/81/EC

Added1. Member States shall publish general transfer licences covering all transfers necessary for the implementation of projects funded under a Union defence industrial programme. Those licences shall cover the defence-related products set out in the Annex and shall apply only to the transfers necessary for the implementation of specific projects.

RemovedArticle 2 – paragraph 1 – point 11 – point b, Article 29 – paragraph 4 a (new): (b) the following paragraph is added: ‘4a. Notwithstanding paragraphs 2, 3 and 4, a contracting authority/entity from another Member State may, with the agreement of the contracting authorities/entities already involved and the selected tenderer or candidate and where the terms of the framework agreement so allow, join an existing framework agreement during its period of validity. Such participation shall not entail substantial modifications to the essential terms of the framework agreement. The possibility of such accession may be provided for in the original procurement documents or agreed upon subsequently where justified by considerations of interoperability, efficiency, or the synchronisation of capability life cycles.’;

Added2. Member States may provide that the licencing system referred to in paragraph 1 applies also to the later phases of the life cycle of the projects occurring after the stages funded under a Union defence industrial programme.

RemovedDirective 2009/81/EC

Added3. Member States shall not require any additional commitment, such as certificates related to end-use, or limitations on the export of the defence-related products, where a funding agreement or contract concluded under a Union defence industrial programme contains a commitment that the defence-related products linked to the implementation of or resulting from a given project will not be shared without authorisation, beyond the participants to the funding agreement or parties to the contract in question, the funding or contracting authority, or, where relevant, the Commission when it is not the funding or contracting authority and the Court of Auditors as referred to in paragraph 4.

RemovedArticle 2 – paragraph 1 – point 12, Article 29 a – paragraph 1: 1. For commonly used purchases the characteristics of which meet the requirements of the contracting authorities/entities, contracting authorities/entities may use a dynamic purchasing system. The dynamic purchasing system shall be operated as a completely electronic process and shall be open throughout the period of validity of the purchasing system to any economic operator that satisfies the selection criteria. It may be divided into categories of products, works or services that are objectively defined on the basis of characteristics of the procurement to be undertaken under the category concerned. Such characteristics may include reference to the maximum allowable size of the subsequent specific contracts or to a specific geographic area in which subsequent specific contracts will be performed.

Added4. The funding agreement or contract may define the arrangements under which the defence-related products linked to the implementation of a given project can be transferred to the Court of Auditors when the participants, the funding or contracting authorities, or, where relevant, the Commission when it is not the funding or contracting authority are legally required to do so.

RemovedDirective 2009/81/EC

AddedArticle 5b

RemovedArticle 2 – paragraph 1 – point 12, Article 29 a – paragraph 4 – point a: (a) publish a call for competition making it clear that a dynamic purchasing system is involved and the reason for it;

AddedLicences for transfers taking place in the framework of a structured intra-EU industrial partnership

RemovedDirective 2009/81/EC

Added1. Member States shall publish general transfer licences for transfers taking place in the framework of a structured intra-EU industrial partnership.

RemovedArticle 2 – paragraph 1 – point 12, Article 29 a – paragraph 5 – subparagraph 3: Contracting authorities/entities shall inform the economic operator concerned at the earliest possible opportunity of whether or not it has been admitted to the dynamic purchasing system and the reasons why.

Added2. The licences referred to in paragraph 1 shall also apply to non-tangible transfers of software and technology.’;

RemovedDirective 2009/81/EC

Added(5) in Article 8, the following paragraph is inserted:

RemovedArticle 2 – paragraph 1 – point 12, Article 29 a – paragraph 6 – subparagraph 2: They shall award the contract to the tenderer that submitted the best tender on the basis of the price and quality award criteria set out in the contract notice for the dynamic purchasing system in accordance with Article 47 or, where a prior information notice is used as a means of calling for competition, in the invitation to confirm interest. Those criteria shall, where applicable, be formulated more precisely in the invitation to tender.

Added‘3a. Member States shall ensure proportionality in the application of the provisions of this Article concerning non-tangible transfers of software and technology, and shall, in particular regarding paragraph 3, points (b) and (c), avoid disproportionate reporting obligations for the suppliers. ▌’;

RemovedDirective 2009/81/EC