NORDIC PROCUREMENT ENFORCEMENT
LEGAL RESEARCH PROJECT

32004L0018: c3-14

Contracts which are secret or require special security measures

EU Law

32004L0018 - Classic (3rd generation)	Article 14
Article 14 Secret contracts and contracts requiring special security measures This Directive shall not apply to public contracts when they are declared to be secret, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the essential interests of that Member State so requires.
32004L0017 - Utilities (3rd generation)	Article 21
Article 21 Contracts which are secret or require special security measures This Directive shall not apply to contracts when they are declared to be secret by a Member State, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the basic security interests of that Member State so requires.
31993L0037 - Works (2nd generation)	Article 4.b
(b) works contracts which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned or when the protection of the basic interests of the Member State's security so requires.
31993L0036 - Goods (2nd generation)	Article 2.1.b
(b) supply contracts which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member States concerned or when the protection of the basic interests of the Member State's security so requires.
31992L0050 - Services (2nd generation)	Article 4.2
2. This Directive shall not apply to services which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned or when the protection of the basic interests of that State's security so requires.
31993L0038 - Utilities (2nd generation)	Article 10
Article 10 This Directive shall not apply to contracts when they are declared to be secret by Member States, when their execution must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned or when the protection of the basic security interests of that State so requires.
31971L0305 - Works (1st generation)	Article 9.1.e
(e) when works are declared secret or when their execution must be accompanied by special security measures in accordance with the provisions laid down by law, regulation or administrative action in force in the member state concerned, or when the protection of the basic interests of that state's security so requires;
31989L0440 - Fourth amendment of Works (1st generation)	Article 1.4=W-3.4.c & 1.9=W1-9.1.e
4. Article 3 ..... paragraphs 4 and 5 thereof are replaced by the following: 4. This Directive shall not apply to: ...... (c) works contracts which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned or when the protection of the basic interests of that State's security so requires.' 9. Article 7, 8 and 9 are hereby repealed.
31977L0062 - Goods (1st generation)	Article 6.1.g
(g) when supplies are declared secret or when their delivery must be accompanied by special security measures in accordance with the provisions laid down by law, regulation or administrative action in force in the member state concerned, or when the protection of the basic interests of that state's security so requires;
31988L0295 - Second amendment of Goods (1st generation)	Article 3.2=G1-2.2 .c & 7=G1-6
2. Paragraph 2 is replaced by the following: 2. This Directive shall not apply to: ..... (c) supplies which are declared secret or when their delivery must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned or when the protection of the basic interests of that State's security so require. Article 7 Article 6 is replaced by the following text: [not included in new article 6]
A1990L0531 - Third joint amendment of Classical (1st generation)	Article 34.1=G-2.2.b
1. Article 2 (2) of Directive 77/62/EEC is hereby replaced by the following: 2. This Directive shall not apply to: ..... (b) supplies which are declared secret or when their delivery must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned or when the protection of the basic interests of that State's security so requires. (*) OJ No L 297, 29. 10. 1990, p. 1.
A1993L0038 - Fifth joint amendment of Classical (1st generation)	Article 43=G-2.2.b
Article 43 ..... Article 2 (2) of Directive 77/62/EEC is hereby replaced by the following: (b) supplies which are declared secret or when their delivery must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned or when the protection of the basic interests of that State's security so requires (1). (1) OJ No L 297, 29. 10. 1990, p. 1.'
31990L0531 - Utilities (1st generation)	Article 10
Article 10 This Directive shall not apply to contracts when they are declared to be secret by the Member State, when their execution must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned or when the protection of the basic security interests of that State so requires.

EU Cases

Case	Pte	Ref	Text
C-157/06 Italy		G2-2.1.b	29 The Italian Republic relies, in addition, on Article 2(1)(b) of Directive 93/36. 30 At the outset, it must be pointed out that the requirement to impose an obligation of confidentiality in no way prevents the use of a competitive tendering procedure for the award of a contract (Commission v Italy, paragraph 52). 31 Therefore, resort to Article 2(1)(b) of Directive 93/36 to justify national legislation authorising the purchase of the helicopters in question by the negotiated procedure appears disproportionate as regards the objective of preventing the disclosure of sensitive information relating to their production. The Italian Republic has not shown that such an objective was unattainable within a competitive tendering procedure such as that specified by the same directive (see Commission v Italy, paragraph 53). 32 It follows that, in the present case, the mere fact of stating that the supplies at issue are declared secret, that they are accompanied by special security measures or that it is necessary to exclude them from the Community rules in order to protect the essential interests of State security cannot suffice to prove that the exceptional circumstances justifying the derogations provided for in Article 2(1)(b) of Directive 93/36 actually exist. 33 Consequently, Article 2(1)(b) of Directive 93/36 cannot properly be invoked by the Italian Republic to justify national legislation authorising recourse to the negotiated procedure for the purchase of those helicopters. 34 Having regard to all of the foregoing, it must be held that by adopting the Ministerial Decree authorising the derogation from the Community rules on public supply contracts in respect of the purchase of light helicopters for the use of police forces and the national fire service, without any of the conditions capable of justifying that derogation having been satisfied, the Italian Republic has failed to fulfil its obligations under Directive 93/36, and in particular under Articles 2(1)(b), 6 and 9 thereof.
C-337/05 Italy	50-54	G2-2.1.b	50. Secondly, that Member State relies on the confidential nature of the information which is obtained to put the helicopters manufactured by Agusta into production to justify the award of the contracts to that company following the negotiated procedure. In that regard, the Italian Republic cites Article 2(1)(b) of Directive 93/36. 51. However, the Italian Republic has not stated the reasons for which it submits that the confidentiality of the information communicated for the production of the helicopters manufactured by Agusta would be less well guaranteed were such production entrusted to other companies, be they established in Italy or in other Member States. 52. In that regard, the requirement to impose an obligation of confidentiality in no way prevents the use of a competitive tendering procedure for the award of a contract. 53. Therefore, resort to Article 2(1)(b) of Directive 93/36 to justify the purchase of the helicopters in question by the negotiated procedure seems to be disproportionate as regards the objective of preventing the disclosure of sensitive information relating to their production. The Italian Republic has not shown that such an objective was unattainable within a competitive tendering procedure such as that specified by the same directive. 54. Consequently, Article 2(1)(b) of Directive 93/36 cannot properly be invoked by the Italian Republic to justify the use of the negotiated procedure for the purchase of those helicopters.
C-252/01 Belgium	29-37	S2-4.2	29 Article 4(2) of Directive 92/50 provides in particular that the directive is not to apply to services the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned. 30 It is not disputed that the Kingdom of Belgium is responsible for protecting the security not only of its national installations but also of the installations of international organisations within its territory, such as NATO. It is therefore for the Belgian authorities to lay down the security measures necessary for the protection of such installations. 31 The Belgian Government stated to the Court, without being contradicted by the Commission, that all aerial photography in Belgium must be submitted to the Belgian security services for checking and possible censoring, unless the undertaking concerned possesses a military security certificate, in which case it is for that undertaking itself to conceal images of sites classified secret before any dissemination of its photographs. 32 The Belgian Government further stated, without being contradicted on the point by the Commission, that the procedure for obtaining the military security certificate is strictly applied and involves a thorough vetting of the undertaking concerned. The past record, circle of contacts, trips abroad and membership of organisations of every member of staff who has access to the photographs, as well as of the shareholders and managers of that undertaking, is looked into in detail. 33 Moreover, again according to the uncontradicted submission of the Belgian Government, in order to guarantee the protection of classified information in its possession, the undertaking in question must fulfil conditions as to security commensurate with the level of confidentiality of the information held. Special procedures for accessing the recorded material are necessary and the equipment for storing and using the uncensored results of photography must meet certain security requirements, such as that photographs and related documents must be kept in a bombproof building with a metal-clad main door protected by a double alarm system permanently linked to a security firm. 34 Obtention of a military security certificate does not, therefore, constitute a merely administrative formality but requires that certain operational conditions be met by the certified undertaking. Furthermore, it means that the undertaking continues to meet security requirements in subsequent operations. 35 Obtention of a military security certificate does not have the effect of exempting the certified undertaking from taking any other security measure. The only difference is that the systematic involvement of the national security services is obviated, while the certified undertaking remains subject to security requirements, in particular the obligation to conceal any classified objects itself prior to the possible dissemination of the photographs. 36 In view of the Belgian provisions as a whole as they have been laid before the Court, it must be concluded that execution of the services under the contract in issue must be accompanied by special security measures within the meaning of Article 4(2) of Directive 92/50, including the obtention by the undertaking providing the service of a military security certificate. 37 It follows that, in accordance with that provision, Directive 92/50 does not apply to the services covered by the contract in issue.
C-323/96 Belgium	40-43	W2-4.b	36 At the hearing, however, the Belgian Government referred to Article 4 of Directive 93/37 in support of a submission that, under certain circumstances, a Member State could legitimately dispense with the obligations laid down in that directive. 37 That article provides that Directive 93/37 does not apply to: `(a) contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Directive 90/531/EEC or fulfilling the conditions in Article 6(2) of that Directive; (b) works contracts which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned or when the protection of the basic interests of the Member State's security so requires'. 38 Quite apart from the question of the belated nature of that plea, which the Belgian Government raised for the first time at the hearing without submitting any valid reason to explain the delay, it should be observed that the Belgian Government has not put forward anything to show that the works contracts put out to tender by the Vlaamse Raad came within one of the situations referred to in Article 4. 39 That plea must therefore be dismissed.
C-324/93 Evans Medical	47-49	G1-6.1.g A2G1-6.4.c	With regard to those arguments the Court recalls that it has held (see, most recently, the judgment in Case C-328/92 Commission v Spain [1994] ECR I-1569, paragraph 15) that Article 6 of the directive, as amended, which authorizes derogations from the rules intended to ensure effectiveness of rights conferred by the Treaty in the public supply contracts sector, must be interpreted strictly. The information provided to the Court does not at this stage warrant the conclusion that the special nature of diamorphine and the security measures to be taken in order to prevent its diversion make it impossible to have an open or restricted invitation to tender. On the contrary, a tenderer' s ability to implement proper security measures could be taken into account as a criterion for the award of a contract, in accordance with Article 25 of the directive.
C-328/92 Spain	15-16	G1-6.1.a G1-6.1.b G1-6.1.c G1-6.1.d G1-6.1.e G1-6.1.f G1-6.1.g G1-6.1.h ECT-EffUtil	In that regard, Article 6 of Directive 77/62, which authorizes derogations from rules intended to ensure the effectiveness of rights conferred by the Treaty in the public supply contracts sector, must be interpreted strictly (see the judgment in Commission v Spain, cited above, paragraph 36). Furthermore, the burden of proving the actual existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances (see, with regard to public works contracts, the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14).
C-71/92 Spain	36	W1-9.1.a W1-9.1.b W1-9.1.c W1-9.1.d W1-9.1.e W1-9.1.f W1-9.1.g G1-6.1.a G1-6.1.b G1-6.1.c G1-6.1.d G1-6.1.e G1-6.1.f G1-6.1.g G1-6.1.h ECT-EffUtil	It should be stressed first of all that the provisions of Article 9 of Directive 71/305 and of Article 6 of Directive 77/62, which authorize derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in the field of public works and supply contracts, must be strictly interpreted (see, as regards Article 9 of Directive 71/305, the judgment in Case 199/85 Commission v Italy [1987] ECR 1039, paragraph 14). For the same reasons, the abovementioned provisions specifying the cases in which privately negotiated contracts may be concluded must be regarded as exhaustive.

DK Cases

Case	Pte	Ref	Text
N-970314 Immuno Danmark	2+K2	G2-2.1.b G2-2.2 G2-3 G2-6.1-impl ECT-30 [ex-36]	2. Sygehusvæsnets indkøb af blodprodukter findes omfattet af EU's indkøbsdirektiv, direktiv 93/36. Undtagelsesbestemmelserne i direktivets artikel 2 og 3 ses ikke at finde anvendelse. EF-traktatens artikel 36 kan heller ikke finde anvendelse, da de nævnte undtagelsesbestemmelser i indkøbsdirektivet må antages at varetage hensynene bag traktatens artikel 36, der derfor ikke kan anvendes selvstændigt ved siden af dem. Hertil kommer, at de to lægemiddeldirektiver i forbindelse med direktiv 89/381 må anses for en harmonisering i et sådant omfang, at artikel 36, således som den fortolkes i EF-domstolens praksis, allerede som følge deraf ikke kan finde selvstændig anvendelse. K2. De indklagede Københavns, Frederiksborg, Roskilde, Vestsjællands, Storstrøms, Bornholms, Fyns, Sønderjyllands, Ribe, Vejle, Ringkjøbing, Århus, Viborg og Nordjyllands amter samt Hovedstadens Sygehusfællesskab skal anerkende, at de ved at undlade at foretage EU-udbud af deres indkøb af blodprodukter har handlet i strid med EU's indkøbsdirektiv, direktiv 93/36, i det omfang disse indkøbs værdi har svaret til direktivets tærskelværdi eller har overskredet denne.