Opinion on the legal basis of the proposal for a Directive of the European Parliament and of the Council amending Directive 2009/43/EC and 2009/81/EC, as regards the simplification of intra-EU transfers of defence-related products and the simplification of security and defence procurement

23.7.2026

Ms MarieAgnes StrackZimmermann

Chair

Committee on Security and Defence

BRUSSELS

Ms Anna Cavazzini

Chair

Committee on the Internal Market and Consumer Protection

BRUSSELS

Subject: Opinion on the legal basis of the proposal for a Directive of the European Parliament and of the Council amending Directive 2009/43/EC and 2009/81/EC, as regards the simplification of intra-EU transfers of defence-related products and the simplification of security and defence procurement (COM(2025)0823 – C100120/2025 – 2025/0177(COD))

Dear Chairs,

By letter of 3 July 2026, you requested the Committee on Legal Affairs (JURI), pursuant to Rule 41(2) of the Rules of Procedure, to provide an opinion on the appropriateness of the legal basis of the proposal for a Directive of the European Parliament and of the Council amending Directive 2009/43/EC and 2009/81/EC, as regards the simplification of intra-EU transfers of defence-related products and the simplification of security and defence procurement (2025/0177(COD)) (the “proposal”).

The JURI Committee considered the above question at its meeting of 15 July 2026.

I - Background

The proposal amends two existing legislative acts in the field of defence transfers and defence procurement and is based on the same Treaty provisions as those relied on by those acts, namely Articles 53(2), 62, and 114 TFEU. Neither Parliament nor Council – in their respective positions – amended those legal bases.

During the inter-institutional negotiations, the co-legislators agreed on a technical correction to address an error in the indication of one of the legal bases, namely Article 53(2) TFEU which they replaced by Article 53(1) TFEU. The other two legal bases were not called into question.

II - The relevant Treaty Articles

Title IV of Part Three of the Treaty on the Functioning of the European Union, on “Free Movement of Persons, Services and Capital”, in Chapter 2 (“Right of Establishment”) provides, inter alia:

Article 53

(ex Article 47 TEC)

1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self- employed persons.

2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.

Title IV of Part Three of the Treaty on the Functioning of the European Union, on “Free Movement of Persons, Services and Capital”, in Chapter 3 (“Services”) provides, inter alia:

Article 62

(ex Article 55 TEC)

The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter.

Title VII of Part Three of the Treaty on the Functioning of the European Union, on “Common Rules on Competition, Taxation and Approximation of Laws”, in Chapter 3 (“Approximation of Laws”) provides, inter alia:

Article 114

(ex Article 95 TEC)

1. Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

2. Paragraph 1 shall not apply to fiscal provisions, to those relating to the free movement of persons nor to those relating to the rights and interests of employed persons.

3. The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environ mental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.

4. If, after the adoption of a harmonisation measure by the European Parliament and the Council, by the Council or by the Commission, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 36, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them.

5. Moreover, without prejudice to paragraph 4, if, after the adoption of a harmonisation measure by the European Parliament and the Council, by the Council or by the Commission, a Member State deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that Member State arising after the adoption of the harmonisation measure, it shall notify the Commission of the envisaged provisions as well as the grounds for introducing them.

6. The Commission shall, within six months of the notifications as referred to in paragraphs 4 and 5, approve or reject the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market. In the absence of a decision by the Commission within this period the national provisions referred to in paragraphs 4 and 5 shall be deemed to have been approved. When justified by the complexity of the matter and in the absence of danger for human health, the Commission may notify the Member State concerned that the period referred to in this paragraph may be extended for a further period of up to six months.

7. When, pursuant to paragraph 6, a Member State is authorised to maintain or introduce national provisions derogating from a harmonisation measure, the Commission shall immediately examine whether to propose an adaptation to that measure.

8. When a Member State raises a specific problem on public health in a field which has been the subject of prior harmonisation measures, it shall bring it to the attention of the Commission which shall immediately examine whether to propose appropriate measures to the Council.

9. By way of derogation from the procedure laid down in Articles 258 and 259, the Commission and any Member State may bring the matter directly before the Court of Justice of the European Union if it considers that another Member State is making improper use of the powers provided for in this Article.

10. The harmonisation measures referred to above shall, in appropriate cases, include a safeguard clause authorising the Member States to take, for one or more of the non-economic reasons referred to in Article 36, provisional measures subject to a Union control procedure.

III – CJEU case law on the choice of legal basis

The Court of Justice has traditionally viewed the question of the appropriate legal basis as an issue of constitutional significance, guaranteeing compliance with the principle of conferred powers (Article 5 TEU) and determining the nature and scope of the Union’s competence.

According to well-established case law, the legal basis of a Union act does not depend on an institution's conviction as to the objective pursued, but must be determined according to objective criteria amenable to judicial review, including in particular the aim and the content of the measure.

If examination of a measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component. Only exceptionally, if it is established that the act simultaneously pursues a number of objectives, inextricably linked, without one being secondary and indirect in relation to the other, may such an act be founded on the various corresponding legal bases. This would however only be possible if the procedures laid down for the respective legal bases are not incompatible with and do not undermine the right of the European Parliament.

IV – Aim and content of the proposed Decision

The aim of the proposal is to strengthen the EU defence market by simplifying the rules governing intra-EU transfers of defence-related products and defence procurement. It seeks to reduce administrative burdens, speed up cross-border cooperation, and make it easier for Member States to jointly procure defence equipment. The proposal also aims to improve the efficiency and resilience of the European defence industrial base.

V – Analysis

The reference to Article 53(2) TFEU – which is not a legal basis as it does not provide for the adoption of a legal act by the Union institutions – was a clear clerical mistake in the Commission proposal, probably stemming from the fact that the predecessor of Article 53 TFEU, namely Article 47 TEC, had an empowerment in paragraph 2. Therefore, it was now replaced during the inter-institutional negotiations by Article 53(1) TFEU which, by contrast, is the provision in that Treaty Article that provides for a Union competence to act.

VI – Conclusion

At its meeting on 15 July 2026 the Committee on Legal Affairs unanimously concluded that Articles 53(1), 62 and 114 TFEU are the correct legal bases for the proposal for a Directive of the European Parliament and of the Council amending Directive 2009/43/EC and 2009/81/EC, as regards the simplification of intra-EU transfers of defence-related products and the simplification of security and defence procurement.

Yours sincerely,

Ilhan Kyuchyuk

ANNEX: DECLARATION OF INPUT

The rapporteur for opinion declares under his exclusive responsibility that he did not include in his opinion input from interest representatives falling within the scope of the Interinstitutional Agreement on a mandatory transparency register, or from representatives of public authorities of third countries, including their diplomatic missions and embassies, to be listed in this Annex pursuant to Article 8 of Annex I to the Rules of Procedure.