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European Procurement Directives

Consultation on the implementation of the European procurement directives

Directive 2009/81/EC - Defence and Security Directive Consultation

What is the effect of the New Directive?
The New Directive covers military and sensitive security equipment (and associated services and works), equipment that may be exempt from the current Public Contract Regulations by virtue of the Article 346 TFEU (formerly Article 296 EC) exemption.  Although the New Directive allows for specific exemptions from competition there use will be limited to truly exceptional cases.  It is the aim of the Directive to open up the European Defence Market to increased levels of competition therefore, we anticipate that a far greater proportion of defence and security requirements will be advertised in the OJEU.

The Transposition Programme
The MOD has completed the First Public Consultation. The Second Consultation commenced on 13 December 2010 and will close on 7 March 2011. Most of the policy outcomes have now been decided as a result of the First Consultation. The Second Consultation offers the opportunity to respond to questions regarding the implementation of the New Directive.  Details of the Second Consultation, including all relevant directives are available on the MOD website.

What this means to you
Individuals and departments may wish to consider the effect of the New Regulations on any planned future requirements, particularly if they are involved in security-related or sensitive procurements. These include procurements which have similar features to those of defence procurement and are equally sensitive, such as:

  • where military and non-military forces co-operate to fulfil the same mission; or
  • where the procurement is to protect security of the Member State against serious threats from non-military or non-governmental actors.

This may involve, for example, border protection, police activities and crisis management operations.  A further update on the Directive will be issued in due course. 

Further Information
To understand more about the Directive, its implications, the potential for legal challenge or how it might affect future plans and established relationships with Industry, please contact Neil Smith (, Commercial Systems, Director General Defence Contracts, Ministry of Defence.

Consultation on the 'Uniplex' case
Consultation on taking account of the 'Uniplex' case (C-406/08, Judgement on 28 January 2010) regarding the time limits for the bringing of proceedings alleging a breach of the procurement rules. Find out more here.

2009 - First Consultation on the Defence and Security Directive
The Ministry of Defence (MOD) is consulting stakeholders on the approach to implementing the new Defence and Security procurement Directive (Directive 2009/81/EC). As this Directive primarily affects defence contracting, MOD has lead responsibility for coordinating transposition.

This first consultation seeks feedback on the approach and seeks views on a range of specific issues. The deadline for responses is 10 March 2010. The consultation document can be accessed via this link.

The Public Contracts (Amendment) Regulations 2009 SI 2009 No. 2992
The Public Contracts (Amendment) Regulations 2009 SI 2009 No. 2992 can be accessed here.  The Explanatory Memorandum, accompanying Transposition Note and Impact Assessment are also available from this page.'

2009 - Second Consultation on the new Remedies Directive (Closed)
OGC's second public consultation on the implementation of the new Remedies Directive took place during the summer of 2009. It sought stakeholders' views on draft Regulations and some other important policy matters.

The exercise was very successful, eliciting a good response from a wide range of contracting authorities, legal and advisory firms, and industry representatives. Detailed analytical work followed the consultation, which led to the finalising of the regulations and the successful implementation of the new Directive by the EU deadline of 20 December 2009.

The list below contains the consultation papers, including OGC's response:

2008 - First Consultation  on the new  Remedies Directive (Closed)
This consultation has closed. OGC consulted stakeholders in 2008 on the approach to implementing new EU Remedies Directive (Council Directive 2007/66/EC).

OGC ran the first of two consultations in the Autumn of 2008. This sought opinions on the approach to the Directive's' implementation, in particular seeking feedback on various optional elements. The consultation evoked a positive response which helped to inform decisions on the policy options.

The first Remedies consultation document is provided below, along with the text of the new Remedies Directive and a draft Regulatory Impact Assessment (as annexes to the consultation document):

2007 Consultation on the draft amending regulations
OGC consulted stakeholders on the draft Public Contracts and Utilities Contracts (Amendment) Regulations 2007. The main purpose of the proposed amendments was to make the necessary amendments to reflect the accession of Bulgaria and Romania to the EU at the beginning of 2007. The opportunity was also taken to make some minor corrections and clarifications in a small number of areas.

OGC received comments on the draft amendments from a number of interested parties and the period for consultation has now closed. There were no substantive changes to the EU procurement rules and the amendments do not affect the majority of stakeholders.

2005 Consultation on draft regulations implementing the new procurement directives and OGC's response
2005 Consultation on Draft Regulations. Following our 2004 consultation on the approach to take in implementing the new EU Public Sector and Utilities procurement Directives, OGC ran a consultation exercise on the draft Regulations implementing these Directives between 20 June and 12 September 2005.
This consultation is now closed.

Please find below both sets of draft Regulations on which OGC consulted, along with the consultation document, transposition tables (which map the Regulations to the Articles of the Directives), and links to the text of the Directives.

2004 consultation on the approach to take in implementing the directives and OGC's response
Previous Consultation Exercise in 2004
In 2004 OGC consulted on the approach to take in implementing the two new EU procurement Directives. The two consultation documents and OGC’s response are available here:

Previous EU public procurement directives