EC closes investigations into Czech defence contract

Thursday November 24th, 2011

The European Commission has today closed the case against the Czech Republic for breaching EU public procurement rules when it purchased four military transport aircraft in 2009. 

The Czech authorities directly awarded the public contract without EU-wide tendering procedures. Following subsequent infringement proceedings (see IP/10/501), the Commission considered referring the Czech Republic to the EU Court of Justice in 2010 (see IP/10/1438). 

The Commission has closed investigations as the Czech Republic has ensured that contracting authorities will in future limit the use of the derogation from public procurement procedures for military purchases (Article 346 TFEU) to exceptional cases where this is necessary for the protection of its essential security interests. The Czech Republic does acknowledge that Member States who make use of this derogation are obliged to prove that this measure is necessary for the protection of their essential security interests if the Commission or another competent authority requires them to do so. 

This clarification was made in the transposition of the new Defence Procurement Directive 2009/81/EC and brings the Czech legislation into line with the Commission’s position. 

Moreover, although the Commission continues to consider that the purchase of aircraft in 2009 should have been subject to EU-wide tendering procedures, the public supply contract in question has already been fully performed. Consequently, a referral to the European Court of Justice would be devoid of purpose and fail to defend the EU interest. What matters is that in the future, all contracts will now be subject to appropriate EU rules.

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