The Balance Between National Security and EU Public Procurement Law: The Advocate General’s View

In this entry for the European Law Blog, author Indrė Maculevičienė (Mykolas Romeris University) examines the balance between Member States’ responsibility for national security and the requirements of EU law in public procurement, focusing on the Advocate General’s Opinion of 8 September 2026 in joined Cases C-271/25 Autovici and C-334/25 Skinest Baltija. The cases concern Lithuanian procurement procedures in which companies were excluded after national security authorities identified links to foreign state institutions or entities.

The Opinion considers national security exclusions to be autonomous, sui generis grounds for exclusion based on Article 4(2) TEU, rather than the harmonised exclusion grounds under the EU Public Procurement Directives. However, such measures remain subject to general principles of EU law, including proportionality, fundamental rights, legitimate expectations, transparency and effective judicial protection.

Maculevičienė highlights the requirements governing automatic exclusion on national security grounds. Any threat assessment must be individual, current, sufficiently serious and properly substantiated, while exclusions must be subject to periodic review so that they do not become effectively indefinite sanctions. National security may justify withholding classified information, but affected operators must still understand the essential grounds for exclusion and have a meaningful opportunity to challenge the decision.

Finally, the entry considers the proposed separation between national security and contracting authorities, noting that this structure can create an “accountability gap” if neither authority directly addresses the operator’s challenge. The author concludes that such a model is compatible with EU procedural rights only where effective independent oversight exists throughout the decision-making process, including judicial review of the factual and legal basis of the national security assessment…

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