Why the EU Internal Market is Not the Correct Legal Basis for Regulating Military-strategic Procurement—On Functional Division of Competences

Abstract

The EU legislature adopted the Defence Procurement Directive in 2009 based on the internal market legal basis, aiming to contribute to the development of the military capabilities required for the CSDP through procurement liberalisation. The EU’s relevance as a military actor within the current division of competences, however, solely relies on national military capabilities. Member States therefore still extensively base their military procurement on the Treaty exception of art.346 TFEU and/or intergovernmental cooperation. Based on its broad legal context in the Treaties and the centre of gravity method in light of art.40 TEU, this article argues that the Directive has been adopted on the wrong legal basis and provides prospects for aligning regulation of military procurement with the EU Treaties.