Under European Union law, national security remains one of the areas in which Member States are recognised as having exclusive responsibility. However, this responsibility is not tantamount to unlimited national discretion and does not, in itself, preclude the application of Union law. The Opinion of the Advocate General delivered on 8 September 2026 in joined Cases C-271/25 Autovici and C-334/25 Skinest Baltija before the Court of Justice of the European Union further develops this balance, particularly in the context of public procurement.
The cases concern two Lithuanian public procurement procedures conducted through dynamic purchasing systems. In Case C-271/25, CPO LT had admitted UAB „Autovici” to a dynamic purchasing system for the purchase, sale and lease of passenger cars, while in Case C-334/25, AB „Lietuvos geležinkeliai” had admitted UAB „Skinest Baltija” to a dynamic purchasing system for railway materials. In both cases, after the economic operators had been admitted to the respective systems, the contracting authorities received information from the Commission for Coordination of the Protection of Objects Important for Ensuring National Security concerning links between persons associated with the economic operators and foreign state institutions or persons or entities from those states, which were considered to increase risks to or pose a threat to national security. On the basis of that information, the economic operators were subsequently excluded from the respective procurement procedures. Some of the information provided by the national security authorities was classified and therefore was not disclosed to the economic operators. The economic operators challenged their exclusion before the national courts, and the Supreme Court of Lithuania stayed the proceedings and referred questions to the Court of Justice for a preliminary ruling.
The Opinion of the Advocate General reconciles national security interests with the requirements of proportionality, legitimate expectations, transparency, equal treatment, the rights of defence, good administration and effective judicial protection.
The central proposition of the Opinion is based on an interpretation of Article 4(2) Treaty on European Union (TEU) Although, under this provision, each Member State remains solely responsible for ensuring its own national security (paras 20-23), this does not mean that measures adopted on the grounds of national security automatically fall outside the scope of Union law (paras 25-26). The existence of national competence and the lawfulness of its exercise from the perspective of Union law are two distinct issues. Consequently, measures adopted in the interests of national security, in so far as they relate to an area governed by Union law, must comply with the (hereinafter ‘the Charter’) and the general principles of Union law (paras 25-27, 60).
National security as an autonomous ground for exclusion
The Advocate General classifies cases of exclusion of economic operators on grounds of national security as autonomous, sui generis grounds for exclusion, the legal basis for which does not derive from Directive 2014/24/EU or Directive 2014/25/EU , but from Article 4(2) TEU (paras 49-62). Consequently, the harmonised grounds for exclusion laid down in Article 57 of Directive 2014/24 (which lists the mandatory and discretionary grounds for exclusion and gives the economic operator a right to demonstrate corrective measures, or ‘self-cleaning’) and the specific procedural safeguards applicable to them cannot be applied to such grounds based on national security, either directly or by analogy. However, this does not mean that the national measure becomes immune from legal scrutiny. On the contrary, it is subject to the general principles of Union law (paras 60-62).
Proportionality, temporariness and periodic review
The Advocate General’s position also provides guidance on the content of the principle of proportionality. A Member State may establish a national security safeguard mechanism under which a contracting authority is obliged to automatically exclude an economic operator on the basis of binding information provided by the competent authority in the field of national security (the national security authority) (paras 71-76). Union law does not necessarily require the contracting authority itself to reassess the existence or extent of a threat to national security (paras 81–83). However, a fundamental condition is that the competent authority which carried out the initial assessment must itself have conducted a specific, individual assessment based on up-to-date information, whilst respecting the principles of proportionality and fundamental rights, and must have duly substantiated its conclusions (paras 74-76, 85-88).
The Advocate General’s Opinion regarding the proportionality of automatic exclusion further clarifies the limits of such measures (paras 74-76, 85-91). The protection of national security interests may justify not only the exclusion of an economic operator from a specific procurement procedure, but also, in certain circumstances, its broader exclusion from several procurement procedures or even a specific category of procurement procedures (paras 89, 121-124). However, such a decision must be based on a real, current and sufficiently serious threat to national security. The decision cannot be based solely on the historical fact that a certain risk was identified in relation to the economic operator in the past (paras 86-88). The assessment must therefore take into account changes in the factual situation, the relevance of the information and the duration of the measure’s application.
In this regard, the doctrine of temporariness and periodic review developed by the Advocate General is particularly relevant (paras 87-91). Although national legislation need not necessarily specify a specific maximum duration for exclusion, the principles of legal certainty and proportionality require that the individual situation be reassessed within a reasonable period. An economic operator must have a genuine opportunity to put forward new circumstances capable of refuting or reducing the relevance of the existing threat (paras 87-88, 100-102). Thus, an exclusion order adopted on grounds of national security must not become a de facto indefinite sanction, the validity of which is never reviewed.
Right of defence, confidentiality and judicial review
Another key point of the Opinion concerns the right of defence and the limits on the disclosure of information. The Advocate General acknowledges that national security may justify withholding certain information from the economic operator (paras 98-104, 133-141). However, the interest in confidentiality is not absolute. The general principle of good administration and Article 47 of the Charter require that an excluded economic operator be afforded at least the opportunity to understand the essential grounds for the decision and to challenge them effectively (paras 132-140, 151-153).
Therefore, the model proposed is not one of absolute disclosure of information, but rather one of balancing interests (paras 133-140). National authorities may withhold information whose disclosure would specifically prejudice national security; however, restrictions on the right of defence must not go beyond what is strictly necessary. The economic operator must be given the opportunity to understand the essential reasons for the decision and to challenge them effectively (paras 135-140, 147).
This approach is directly linked to the scope of judicial review. National security considerations cannot justify a form of review that would prevent the court from examining the factual and legal basis of a decision. The national court must be able to examine all relevant circumstances, including classified information, where such information is necessary to assess the legality of the decision (paras. 151-153). At the same time, the economic operator must be provided with sufficient information concerning the grounds for the decision to enable it to mount an effective defence. Thus, confidentiality may restrict the economic operator’s access to information, but it cannot preclude independent and effective judicial review.
Consequently, Article 4(2) TEU grants Member States broad discretion to define the scope of national security, the level of its protection and the institutional framework for safeguarding national security; however, the exercise of this discretion is not divorced from Union law and must be assessed in the light of the requirements laid down therein. Member States may not rely solely on the interests of national security to justify the complete elimination of the principles of Union law, fundamental rights or judicial review.
Institutional separation of competences and the economic operator’s procedural rights
The Opinion therefore rests on an institutional separation of competences. This section sets out that model and then examines whether it adequately protects the economic operator’s procedural rights. The determination of a threat to national security is primarily the responsibility of a national security authority, whilst the contracting authority’s role may be limited to implementing that authority’s binding conclusion (paras 72-76, 81-83).
However, the proposed model of institutional separation of competences raises the question of whether such a separation of competences sufficiently safeguards the procedural rights of the economic operator. On the one hand, giving a national security authority precedence in determining a threat to national security may be justified on the grounds of its specialised expertise and access to classified information. On the other hand, if the contracting authority is required to implement the national security authority’s conclusion automatically and has no opportunity to assess it independently, the economic operator effectively loses the opportunity to challenge the risk assessment itself during the exclusion procedure.
In such a case, the economic operator’s procedural rights depend not on the contracting authority’s decision, but on whether sufficient procedural safeguards were ensured by the national security authority. However, such an assessment is usually carried out unilaterally by a national security authority, whilst the economic operator does not participate in the decision-making process and has no opportunity to present its own explanations or to challenge the information held by the authority. This raises the fundamental question of how, in such circumstances, an economic operator can be guaranteed an effective opportunity to defend itself and exercise its procedural rights, particularly in cases where the decision is based on confidential or classified information.
Consequently, separation of competences alone is not sufficient to ensure the effective protection of an economic operator’s rights. It is essential to ensure that, at least at one stage of the institutional process within the decision-making chain, the economic operator’s arguments can be genuinely assessed, and that the national court has the right to review not only the formal existence of grounds for exclusion, but also the factual and legal soundness of the assessment carried out by the national security authority. Otherwise, the division of responsibilities risks creating an ‘accountability gap’. The contracting authority can say that it merely implements a binding decision. The national security authority can say that its assessment rests on sensitive information that cannot be disclosed to the economic operator. Neither authority would therefore directly address the operator’s challenge. Such a situation would be difficult to reconcile with the right to an effective remedy enshrined in Article 47 of the Charter if the economic operator were not afforded a genuine opportunity to challenge at least the essential factual and legal grounds of the decision.
Thus, the compatibility of the model proposed by the Advocate General with the economic operator’s procedural rights depends not so much on whether the contracting authority is granted independent discretion, but rather on whether an effective independent control mechanism exists throughout the entire decision-making chain. An institutional separation of competences can be compatible with the requirements of an effective legal remedy only if it is not used as a basis for reducing the level of procedural safeguards. Otherwise, the specialisation of national security authorities and confidentiality requirements could lead not only to the lawful exclusion of an economic operator, but also to an excessive restriction on that economic operator’s ability to challenge the grounds for such a decision.
Conclusion
The Advocate General’s Opinion in Cases C-271/25 and C-334/25 further develops the relationship between national security and EU public procurement law. While national security remains an area of exclusive Member State responsibility, Article 4(2) TEU does not confer unlimited discretion or, in itself, exclude the application of Union law.
In public procurement, Member States may establish autonomous grounds for the exclusion of economic operators on national security grounds, including their automatic application in certain circumstances. However, such measures are lawful only where the national security threat is assessed individually, on the basis of up-to-date information and in accordance with the principle of proportionality, and where exclusion does not become a de facto indefinite or uncontrolled restriction.
The key concern with the proposed institutional separation of competences is the protection of the economic operator’s procedural rights. Such separation can be justified only where an effective independent control mechanism exists throughout the decision-making chain. In particular, the economic operator must have a genuine opportunity to challenge the basis of the national security assessment, while the national court must be able to review its factual and legal basis.
Accordingly, the compatibility of this model with the economic operator’s procedural rights depends on the quality of the national security assessment and the effectiveness of its independent oversight. The right of defence may be restricted where strictly required by national security considerations, but cannot be rendered ineffective. Confidentiality may limit the information available to the economic operator, but cannot preclude effective judicial review.
