As part of the “Rearming Europe” plan announced by the European Commission at the beginning of March 2025, 800 billion euros will be mobilized to enable European armies to grow in strength.
This increase in military spending by several European Union countries, involving in particular the purchase of war materiel, provides an opportunity to take stock of the specific features of public defense or security contracts as set out in the French Public Procurement Code (CCP).
1. Specific features relating to the subject of the contract
The public procurement principles of freedom of access, equal treatment of candidates and transparency of procedures are applicable to defense or security contracts, with the particularity that these principles are, in this case, intended to ensure the strengthening of the European defense industrial and technological base (L. 1113-1 CCP).
Because of their specific purpose, these contracts can only be awarded by the French State and its public establishments.
The nature of these contracts is characterized by their sensitivity to military and defense issues. The purpose of these contracts is therefore governed by the French Public Procurement Code, and is limited to :
- The supply of equipment intended for use as weapons, munitions or war materiel, including spare parts, components or sub-assemblies for such equipment;
- The supply of security-related equipment involving, requiring or containing media or information protected or classified in the interests of national security;
- Work, supplies and services directly related to this equipment;
- Work and services for military or security purposes involving, requiring or containing media or information protected or classified in the interests of national security.
Contracts for such purposes must be awarded in accordance with the rules applicable to defense and security contracts, which present special features in view of the sensitivity of the services in question.
2. Appropriate advertising and competitive bidding conditions
To meet the objective of strengthening the European defense industrial and technological base, defense and security procurement procedures offer the French government a certain degree of flexibility. A number of specific features are worth noting.
Firstly, there are more cases where a defense or security contract can be concluded without prior advertising or competitive bidding than is the case for conventional public procurement.
Some defense or security contracts are not subject to the provisions of the French Public Procurement Code relating to the obligation to advertise and put out to tender (CCP, art. L. 2515-1).
👉 For example, contracts for arms, munitions or war materiel are not subject to a competitive bidding procedure when the protection of the State’s essential security interests so requires, particularly for purchases requiring extremely high confidentiality or rapid acquisition. This is also the case for contracts concluded in application of procurement rules laid down in an international agreement, or for contracts awarded as part of a cooperation program based on research and development activities, carried out jointly by member states of the European Union with a view to developing a new product.
Other contracts may be awarded by negotiated procedure without prior advertising or competitive tendering.
👉 For example, a contract concluded to deal with an emergency resulting from armed conflict or war in France or abroad may be awarded by a negotiated procedure without prior advertising or competitive bidding, when this emergency situation is incompatible with the deadlines for a competitive bidding procedure (CCP, art. R. 2322-3). This is also the case when, for technical reasons (e.g. to guarantee the operation of the armed forces), a contract can only be concluded with a single economic operator.
Secondly, it should be noted that the open tendering procedure is not applicable to defense and security contracts, so that only candidates selected by the State may subsequently submit a bid.
Reminder: from a practical point of view, candidates for a defense or security contract are obliged to provide, in support of their application, documents proving that they have the required aptitude and capacity. They cannot simply tick the box in point 2 of section C3 of form DC2.
3. Restricted conditions of participation
Given the specific nature of defense and security contracts, not all economic operators are eligible to apply.
Firstly, there is a principle of European preference for the award of defense or security contracts, according to which only economic operators from Member States of the European Union or parties to the European Economic Area are admitted to take part in the award procedure (CCP, art. L. 2353-1).
The State may, however, decide to allow economic operators from non-EU countries to take part in the award procedure, by establishing eligibility criteria for their applications (CCP, art. R. 2342-8).
This principle of European preference may also, in certain cases, have an impact on contract performance conditions.
👉 By way of example, the French government has been able to stipulate in specifications that the production of a piece of equipment must be carried out on European soil, including the sources of supply and the assembly line for the equipment concerned.
Note: administrative judges consider that the principle of European preference applies only to candidates, without extending to subcontractors (TA Paris, November 12, 2024, no. 2113501) or subcontractors (TA Paris, December 11, 2024, no. 2430541). An applicant who is a national of a member state of the European Union or a member of the European Economic Area can therefore join forces with a subcontractor from a third country.
Secondly, in the specific case of contracts giving access to classified information (national defense secrets), the economic operator and its legal representative must have specific authorization, as provided for in Interministerial General Instruction No. 1300/SGDSN/PSE/PSD on the protection of national defense secrets of August 9, 2021 (known as “IGI 1300”).
From the outset of the procurement procedure, the State is required to inform the person legally responsible of their obligation to obtain clearance for themselves and the legal entity they represent, prior to signing the contract, or even as soon as they submit their application. Subcontractors requiring access to classified information must also obtain clearance.
If the use of a classified information system is required for the performance of the contract, or even as part of its award or conclusion, it must also be approved prior to use.
If the legal entity is incorporated under foreign law, or if it includes foreign nationals requiring access to classified information or media, Secret or Top Secret clearance may be granted, provided that there is a security agreement between France and the country of which the person concerned is a national. However, they may not be given classified information marked “Spécial France”.
👉 In practice, the French government is often more reluctant to grant authorization when the economic operator is not based in France (French subsidiary or branch) and/or when the legal representative is a national of a third country, even where a security agreement exists.
This obligation to obtain clearance is also likely to have an impact on contract performance in the event of a change of manager and/or staff, for example.
Note: with regard to contracts in progress, these specificities concerning the nationality of the contract holder call for particular attention in the context of restructuring operations, particularly mergers and acquisitions, as they could limit the possibilities of transferring defense or security contracts.
Contacts
If you have any questions, please do not hesitate to contact Etienne Amblard (amblard@aramis-law.com), partner in charge of the Aramis Public Law Department, Ananova Lohmann (lohmann@aramis-law.com), associate in the Public Law Department, and Alexis Chahid-Nouraï (chahidnourai@aramis-law.com) partner in the Corporate Department.
The Aramis Public Law team has been ranked in tier 4 of the Legal 500 EMEA 2024 and in Chambers 2025.