In a tense geopolitical context, the European Union is taking an important step towards strengthening its own security. Council Regulation (EU) 2025/1106 of May 27, 2025 established the “European Security Action Instrument” (hereinafter referred to as "SAFE" / "Regulation"), a European Union financial mechanism totalling €150 billion, designed to support urgent and significant investments in defence industry and technology through common procurement among Member States. SAFE offers EU countries advantageous long-term loans designed to stimulate the production and common procurement of defence equipment and reduce external dependencies in the field of security.

Romania is one of the most active beneficiaries of this instrument: through plans submitted to the European Commission and subsequently approved, our country has accessed an allocation of approximately €16.68 billion[1] under SAFE. The resources will finance major projects to strengthen defence capabilities and modernize dual-use civilian and military infrastructure.

In the following, we will conduct a preliminary analysis of 3 (three) essential aspects of this Regulation which, in the absence of explicit clarifications, may give rise to divergent, disproportionate, or restrictive interpretations by contracting authorities. Such lack of clarity may, in practice, lead to the rejection of economic operators from common procurement procedures.

Firstly, for the purposes of the Regulation, the concept of "common procurement" means a public procurement procedure of defence products or other products for defence purpose and the resulting contracts, carried out by at least one Member State receiving financial assistance under the SAFE instrument and another Member State, one Member of the European Free Trade Association which are members of the European Economic Area, or Ukraine.

For the sake of clarity, we emphasize that the term "product" should not be understood in a narrow sense. Pursuant to the definition set out in Article 2(1) of the Regulation, "defence product" means goods, services, and works that fall within the scope of Directive 2009/81/EC, as set out in Article 2 thereof. Furthermore, in the context of SAFE, “other products for defence purposes” means any goods, services, and works other than those falling within the scope of Directive 2009/81/EC, which are necessary for or aimed at defence purposes.

Therefore, common procurement governed by SAFE may concern either defence products or other products for defence purposes, as defined in the Regulation.

The question raised by the present article is whether the nature of the subject matter of the common procurement determines the application of a differentiated regime of eligibility conditions.

The eligibility conditions are laid down in Article 16 of SAFE, which provides that common procurements shall only be eligible for support under the Regulation if they comply with the conditions set out in that article.

Article 16 begins by setting out, in paragraph (2)[2], the eligibility conditions that must be met in the case of common procurement procedures and contracts of defence products. Since this paragraph does not also refer to common procurement procedures of other products for defence purposes, an ambiguity arises as to the legal regime applicable to the latter category. Nevertheless, the concept of "other products for defence purposes" is referred to in Article 16(13)[3] of the SAFE, where a distinct standard appears to be established with regard to eligibility conditions, in that such conditions must be "appropriate", without, however, an explicit enumeration of those conditions comparable to that provided for in paragraph (2).

In this context, the question arises as to whether paragraphs (2) and (13) of Article 16 may be interpreted as meaning that, in the case of common procurement of other products for defence purposes, Member States have a margin of discretion to establish eligibility conditions different from those laid down in paragraphs (3) to (12) and (15), provided that such conditions are appropriate for the objective of protecting security and defence interests and comply with the general framework of the SAFE, or whether the same eligibility conditions as for the procurement of defence products be taken into account.

At first reading, the wording of the text appears to allow for such a distinction, without, however, providing sufficient criteria to determine the precise scope of the margin of discretion available to Member States. In this context, clarification is both necessary and expected, and it would be desirable for the implementation of SAFE to be supported, in the near future, by guidelines or interpretative clarifications.

Secondly, the Regulation introduces the concepts of "contractors" and "subcontractors involved in the common procurement" as key benchmarks for establishing eligibility conditions, while leaving a grey area with regard to third-party supporters. In the field of public procurement, however, this legal mechanism is well established: Directive 2009/81/EC and the general framework of EU public procurement law allow tenderers to demonstrate their technical or economic capacity by relying on the resources of other entities. In this context, the absence of an express reference in the SAFE raises legitimate questions as to how these mechanisms are to be applied to third-party supporters.

The core issue is one of interpretation: in the absence of explicit provisions, may third-party supporters be regarded as falling outside the scope of the eligibility conditions set out in Article 16 of SAFE? A first reading might suggest that, as they do not have the status of contractors or subcontractors, such entities are not directly subject to the eligibility conditions. Conversely, an alternative interpretation could lead to the conclusion that entities providing essential capabilities participate indirectly in the procurement and may be assimilated to the "resources" used by the contractor, thereby triggering the application of the conditions set out in Article 16(8) of the Regulation[4].

In practice, it has also been suggested that third-party supporters must meet the eligibility conditions laid down in the Regulation for contractors, given that the nature of the support commitment implies that, in the event the contractor is unable to perform the contract, the third-party supporter would assume and fulfil all contractual obligations.

This ambiguity is not merely theoretical, but has significant practical implications for economic operators that structure their participation on the basis of third-party support. Clarifying the status of third parties — whether they fall outside the eligibility conditions or subject to the requirements applicable to resources or the contractor — is essential to ensuring legal certainty and consistent application of the Regulation. In the absence of clear legal provisions, the applicable framework remains uncertain and may even lead to the unjustified rejection of economic operators benefiting from the support of third parties, particularly in the case of financial support (e.g., turnover), where the role of the third party is, in principle, limited to ensuring financial capacity, without requiring involvement in the actual performance of the contract.

Thirdly, SAFE places several responsibilities on the European Commission's agenda, aimed at ensuring consistent application of the new rules across all Member States. Among these is the obligation to provide a standardized template for the guarantees referred to in Article 16, a tool that should be included in the specifications and eliminate differences in approach from one country to another.

The standardised template referred to in the Regulation has not yet been published, and this absence leaves room for interpretation and uncertainty. For contracting authorities and economic operators alike, the lack of such an official benchmark complicates the practical application of the Regulation and creates uncertainty regarding the process of evaluating the guarantees provided by contractors and subcontractors.

This situation highlights the importance of the European Commission's coordinating role in the implementation phase of SAFE and illustrates the potential practical difficulties arising from the absence of sufficiently detailed implementing instruments, particularly in light of market expectations for a standard template or, at least, guidelines on the minimum requirements applicable to guarantees.

In conclusion, SAFE represents an important step towards strengthening European security and stimulating cooperation in the field of defence procurement. However, an analysis of its provisions reveals several areas of uncertainty that may affect the practical application of the instrument.

We consider that, for this instrument to achieve its stated objectives—namely, efficient investment in the defence industry, the reduction of external dependencies, and the strengthening of European strategic capacity—it is essential that both European and national authorities provide clarification and operational guidance. Only in this way will the SAFE framework be able to function coherently, allowing economic operators to participate, under conditions of predictability and legal certainty, in procedures financed under SAFE, both those already launched and those to be initiated in the near future.