In a judgment of 18 December 2025, the Court of Justice of the European Union (CJEU) clarified which procurement regime applies to mixed public contracts combining defence-related services and ordinary logistical services.
Background
In 2022, the Italian Ministry of Defence (Ministero della Difesa) launched an open procedure for the award of a public contract for logistical services for the benefit of the Italian armed forces. The contract included loading, unloading, handling and transportation of equipment.
Certain services concerned the handling of ammunition and explosives, potentially falling within the scope of Directive 2009/81 on defence and security procurement. Other services, however, were ordinary logistical services with no specific defence requirements, normally governed by Directive 2014/24 on classical procurement.
The referring court asked the CJEU to determine how such contract should be legally classified and which directive should apply.
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The Court’s assessment
The Court confirmed that:
- Services involving access to military equipment or sensitive information may fall within the scope of the Defence Directive;
- however, were a contract also includes services unrelated to defence needs, it must be classified as a mixed contract.
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The key legal issue concerned the interaction between:
- Article 3 of Directive 2009/81, which tends to impose the application of the Defence Directive to mixed contracts, and
- Article 16 of Directive 2014/24, which provides conflict-of-laws rules allowing a degree of choice, subject to conditions.
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The ruling
The CJEU held that Article 16 of the Classical Directive prevails.
According to the Court:
- Article 16 is more recent and more precise and it provides an exhaustive framework for the treatment of mixed contracts;
- Article 3 of the Defence Directive reflects a more general approach that is no longer suited to the current EU procurement framework.
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As a result, Article 16 reflect the current will of the EU legislature and constitutes the reference standard for determining the applicable procurement regime.
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Practical implications
The applicable regime depends on whether the defence-related and non-defence services are:
- Objectively separable, or
- inseparable.
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In all cases, the Court recalls that the contracting authority’s choice must never be intended to circumvent EU competition rules.
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Why it matters
This judgment provides long-awaited guidance for contracting authorities and economic operators dealing with dual-use or mixed defence contracts, offering greater legal certainty when determining the applicable procurement regime.
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Questions about the rules applicable to your public or defence-related contracts? Our Defence, Security and Space team is here to help. Feel free to reach out to the author of this article: Laura Grauer.
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This newsletter does not constitute legal advice or a legal opinion. Please consult with a legal counsel of your choice before taking any action based on the information provided.