The Tailor-Made EU Defence and Security Procurement Directive: Limitation, Flexibility, Descriptiveness and Substitution

Can the EU Defence and Security Procurement Directive 2009/81 open the defence
procurement markets of the Member States and thus contribute to the establishment of an
internal defence equipment market? Ultimately this depends on its implementation and
application in practice. However, if national security concerns are sufficiently accommodated
in the Directive, the use of the armaments exemption in art.346 TFEU will be reduced and
defence and security procurement will be conducted to a larger extent “inside” the instrument
and thus the internal market. This article will discuss the techniques the EU legislator used to
adapt the Directive to defence and security needs: limitation, flexibility, descriptiveness and
substitution. It will be argued that overall a tailor-made Directive for defence has been
provided.