The Court of Justice has in principle acknowledged that Article 4(2) TEU contains a derogation from the Treaties to safeguard ‘national security’. In a recent judgment concerning the exceptions from the public procurement rules to protect ‘essential security interests’, the ECJ referred to the definition of ‘national security’ that is developed in case law on data protection. This seems to open the door for reliance on Article 4(2) TEU to safeguard ‘national security’ in public procurement. The article examines whether the public procurement directives that harmonize the rules for awarding public contracts allow contracting authorities to rely on the safeguarding of ‘national security’ in Article 4(2) TEU to derogate from the rules. It is found that this generally seems possible, but there is some lack of clarity when it comes to the directive that regulates the award of certain public contracts related to defence and security. Further, the article discusses how a ‘national security’ derogation could apply to public procurement. It is suggested that inspiration from the area of data protection could be used to distinguish between the different Treaty derogations that allow for protection of security interests in a public procurement context. It is concluded that a ‘national security’ derogation could be an important development, because it could close certain gaps in the current regulation of contracting authorities’ abilities to protect security interests. The analysis could also be relevant outside the scope of public procurement.
Common Market Law Review