Ensuring Military-logistic Capabilities through Discriminatory Public Procurement? Legal Routes to Overcome a Personnel Shortage

EU Member States are generally increasing their military expenditure to scale up military capabilities in response to Russia’s invasion of Ukraine. In the Netherlands, the war in particular has put further pressure on the structural shortage of military personnel. In this article, the authors evaluate the set-up of a so-called “Ecosystem Logistics” by the Dutch Ministry of Defence to address this personnel shortage in the context of their logistical capabilities. In particular they evaluate as to whether derogation from EU public procurement law can be justified, given the requirement for economic operators and parts of their personnel to possess Dutch nationality. Many of the logistical services which will be carried out within the Ecosystem during peacetime lack a direct security objective and might therefore, at first sight, appear to be subject to the EU’s public procurement directives. The authors demonstrate, however, that when considering the military purpose of the Ecosystem in light of the complete legal system of which the directives form part, as well as the division of competences between the EU and its Member States, derogation is possible based on arts 52 and 62 TFEU. A different method may thus lead to a different conclusion. Alternatively, the Ecosystem could be brought under the exceptional security-related situations of art.347 TFEU. In the conclusion, the authors reflect on the more general implications of these findings for EU public procurement regulation in the military context.