## [When may Poland depart from EU procurement procedures?](/en_GB/new/when-may-poland-depart-eu-procurement-procedures) # When may Poland depart from EU procurement procedures? Poland - 09 / 28 / 2026 - - [](https://www.linkedin.com/sharing/share-offsite/?url=https://www.garrigues.com/en_GB/new/when-may-poland-depart-eu-procurement-procedures) - []() - []() Previous Next **Article 346 TFEU allows EU Member States to depart from EU procurement procedures to protect their essential security interests. Poland relies on this exemption when acquiring military equipment, applying its own procedures under public procurement law and the internal rules of the Ministry of National Defence, in particular those of the Armament Agency.** Article 346(1)(b) of the Treaty on the Functioning of the European Union (“TFEU”) provides that any Member State may take such measures as it considers necessary for the protection of the essential interests of its security and which are connected with the production of or trade in arms, munitions and war material. In the Polish legal system, this concept is referred to as the “essential State security interest” (*podstawowy interes bezpieczeństwa państwa -*PIBP-). These measures must not adversely affect the conditions of competition in the internal market regarding products not intended for specifically military purposes. This provision constitutes a primary-law derogation independent of Directive 2009/81/EC on defence procurement. The material scope of Article 346 TFEU is linked to the list of arms, munitions and war material adopted by the Council on 15 April 1958, as confirmed by recital 10 of Directive 2009/81/EC. The exemption therefore does not automatically cover the entire security sector; it is limited to the defined context of defence materiel. It should also be borne in mind that the Court of Justice of the European Union consistently interprets Article 346 TFEU as an exception that must be construed strictly (see the judgments in Cases C-615/10 and C-414/97). ## Directive 2009/81/EC and Article 346 TFEU Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 introduced coordinated procedures for the award of contracts in the fields of defence and security. Its purpose was to establish fair and transparent rules for defence procurement, enabling undertakings from one Member State to gain access to the defence markets of other Member States. The Directive operates alongside Article 346 TFEU and does not replace it. In its guidance on the Directive's scope of application (Guidance Note on Directive 2009/81/EC), the European Commission emphasises that, as an instrument of secondary law, the Directive does not alter the Treaty and that defining essential security interests remains the exclusive competence of the Member States. At the same time, the EU framework assumes that Member States should apply the Directive where its procedures are sufficient and rely on Article 346 TFEU only where departure from EU procurement rules is strictly necessary. ## Implementation in Polish public procurement law Poland implemented the Treaty exemption through the Act of 11 September 2019, the Public Procurement Law (*Prawo zamówień publicznych -*PZP-). Article 12(1), point 2 PZP provides that the Act does not apply to contracts relating to the production of or trade in arms, munitions or war material referred to in Article 346 TFEU where this is required by an essential State security interest and the award of the contract without applying the Act will not adversely affect the conditions of competition in the internal market regarding products not intended for specifically military purposes. A further condition is that the essential State security interest cannot be safeguarded by other means, in particular by applying section VI PZP, which governs procurement in the fields of defence and security. Separately, Article 12(1), point 1 PZP excludes contracts assigned a security classification under the rules on the protection of classified information or where this is required by an important State security interest (*istotny interes bezpieczeństwa państwa*). Article 13 provides further exclusions for defence contracts, including contracts subject to specific international procedures, contracts for intelligence or counter-intelligence purposes and contracts where applying PZP would require the contracting authority to disclose information contrary to essential security interests. ## Urgent operational requirement As a rule, defence acquisitions are planned in advance, primarily in central material plans. Urgent reassessment may nevertheless become necessary, usually in response to a sudden and direct threat to State security. In that situation, military equipment may be acquired under the Urgent Operational Requirement procedure (*Pilna Potrzeba Operacyjna -*PPO). The direct legal basis for this procedure is Decision No. 116/MON of the Minister of National Defence of 1 September 2021 on the acquisition of military equipment. Importantly, a PPO may be associated with an important or essential State security interest, but it does not automatically disapply PZP. Military equipment under a PPO may still be acquired under a procedure laid down in PZP, in particular the single-source procurement procedure (*zamówienie z wolnej ręki*), which expressly provides for this ground in defence and security procurement. Use of a procedure outside the statutory regime requires the separate fulfilment of the conditions for one of the exclusions provided for in PZP. ## Procedure for assessing an essential State security interest In practice, one basis for excluding major defence contracts from the Public Procurement Law regime is the existence of an essential State security interest. Such contracts may be awarded under procedures outside the statutory framework, not necessarily through direct negotiations. Contracts awarded under international agreements may, however, qualify for a separate exclusion from PZP under the conditions laid down in Article 13(1), point 7 PZP. Within Poland's national defence administration, the existence of an essential State security interest is assessed under Decision No. 9/MON of the Minister of National Defence of 2 February 2022. Under that Decision, an assessment request is prepared and the Minister of National Defence assesses whether an essential State security interest exists. The Decision itself does not regulate the contract award procedure. Although the concepts of an important and an essential State security interest are sometimes used interchangeably in practice, legally they constitute two separate grounds for exclusion, set out in different points of Article 12(1) PZP. An “important State security interest” (Article 12(1), point 1(b)) does not require the contract to concern arms, munitions or war material and does not include the condition that there be no adverse effect on the EU internal market. An “essential State security interest” (Article 12(1), point 2) refers directly to Article 346 TFEU, is limited by the material scope of Article 346(1)(b) TFEU and is subject to additional Treaty conditions. Nevertheless, the scope of the two grounds may partly overlap in specific factual circumstances. According to the Polish Public Procurement Office (*Urząd Zamówień Publicznych*), State security interests may concern values such as: - sovereignty, - international standing, - independence, - territorial integrity, - national defence. In practice, the existence of an important or essential State security interest must be analysed and assessed each time a defence contract is to be awarded. ## Armament Agency procurement rules Contracts excluded from the Act under Article 12(1), point 2 PZP are awarded by the Armament Agency (*Agencja Uzbrojenia*) in accordance with the Rules for the award of contracts by the Armament Agency for the purpose of protecting essential State security interests (Annex No. 2 to Order No. 19 of the Head of the Armament Agency of 4 July 2025). These Rules govern the principles and procedure for awarding contracts intended to protect essential State security interests. Proceedings may be conducted under three procedures: - negotiations with several contractors (where at least two identified contractors meet the requirements arising from the essential State security interest), - negotiations with a single contractor (where only one contractor meets those requirements or a specific contractor has been designated for the contract), and - a procedure with publication of a notice (where it is not possible to identify a closed list of contractors). When preparing and conducting the proceedings, account is taken in particular of requirements concerning the protection of classified information, security of supply, the establishment or maintenance of industrial capacity and the protection of the State Treasury's interests in intellectual property rights. ## Conditions for applying the exemption On the basis of national and EU law, the following cumulative conditions can be identified; each must be satisfied for Poland lawfully to depart from EU procurement procedures: - First, the contract must concern the production of or trade in arms, munitions or war material within the meaning of the 1958 list. - Second, applying the exemption must be required by an essential State security interest, which is subject to a formal assessment under Decision No. 9/MON. - Third, the essential State security interest cannot be safeguarded by other means, in particular by applying section VI PZP on defence procurement. - Fourth, awarding the contract outside the Act must not adversely affect the conditions of competition in the EU internal market regarding products not intended for specifically military purposes. ## Outlook and risks From Poland's perspective, the exemption mechanism based on Article 346 TFEU is a key tool amid the extensive modernisation of the Polish Armed Forces. It facilitates the rapid acquisition of military equipment through negotiations, while taking account of information security, security of supply and the development of domestic industrial and defence capacity. At the same time, the European Commission and the European Parliament consistently emphasise that the exemption must be applied proportionately and only where strictly necessary. Excessive or unjustified reliance on Article 346 TFEU exposes a Member State to the risk of EU infringement proceedings. The Commission should monitor the necessity and proportionality of exclusions rather than relying solely on complaints from industry. In February 2026, in a report on barriers to the single market for defence, the European Parliament called on the Commission to issue a clear recommendation on the application and limits of Article 346 TFEU. The recommendation would clarify that the exemption covers only measures strictly necessary to protect essential security interests and that such measures must not adversely affect the conditions of competition in the single market. In the current geopolitical context, with rising defence expenditure and ambitious modernisation programmes, the proper application of the Article 346 TFEU exemption requires contracting authorities to prepare careful documentation substantiating the need to protect an essential State security interest and demonstrating that standard procurement procedures, including those under Directive 2009/81/EC as implemented in section VI PZP, cannot provide the required level of protection for security interests. 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