I.        INTRODUCTION

The Opinion delivered by Advocate General Andrea Biondi on 8 September 2026 in Joined Cases Autovici and Skinest Baltija (C-271/25 and C-334/25), examines the limits on the exclusion of companies from public tender procedures on national security grounds.

The Advocate General considers that States may establish autonomous and specific grounds for exclusion to protect their security, provided that they comply with the safeguards required by EU law. His proposal recognises the role of States in determining and protecting their national security interests, but requires an individual assessment based on a real, present and sufficiently serious threat, supported by sufficiently recent evidence relevant to the contract in question, as well as effective judicial review.

Although the disputes concern vehicles and railway equipment, the analysis is of interest because it addresses the balance between national security and access to public procurement. In addition, the Opinion clarifies the scope, in this field, of the case-law established by the CJEU in its judgment in Infraestructuras de Portugal and Futrifer Indústrias Ferroviárias (C-66/22), concerning the contracting authority’s competence to assess certain grounds for exclusion. The Opinion is not binding; the CJEU’s judgment is pending and is expected to be delivered in six months.

   II.        THE BACKGROUND TO THE QUESTIONS

In 2022, following Russia’s invasion of Ukraine, the Lithuanian Government adopted national legislation allowing certain suppliers to be excluded from public procurement procedures on national security grounds.

Against this background, Autovici was excluded from a dynamic purchasing system for the sale and leasing of vehicles on the basis of information concerning links with foreign authorities or individuals considered to pose a risk to national security.

Similarly, Skinest Baltija was excluded from a dynamic purchasing system for railway equipment on the basis of similar information and earlier government decisions prohibiting the company from entering into contracts with it in earlier procurement procedures.

Both companies challenged their exclusion, and the Supreme Court of Lithuania referred questions to the CJEU concerning the compatibility of those exclusions with EU law.

  III.        AN AUTONOMOUS AND SUI GENERIS GROUND FOR EXCLUSION

The Advocate General places these grounds for exclusion within the competence of States to protect national security, recognised in Article 4(2) of the Treaty on European Union. Accordingly, the adoption of measures relating to national security falls within the competence of the Member States. Their preventive purpose distinguishes them from the ordinary grounds for exclusion governed by Article 57 of Directive 2014/24/EU.

He therefore proposes that the rules laid down in that Article, including those on self-cleaning measures and the duration of exclusion, should apply neither directly nor by analogy. Nor is the proportionality assessment specifically provided for in Article 57 directly applicable; this does not, however, mean that exclusion is exempt from compliance with the general principle of proportionality under EU law.

Invoking national security does not, therefore, place State action entirely outside the scope of EU law. Where the measures adopted affect areas governed by EU law, the fundamental requirements must be respected, including proportionality (particularly in the field of procurement), equal treatment, transparency, the rights of the defence and the right to judicial protection. These requirements remain enforceable as they derive from EU primary law and the general principles of EU law.

The Advocate General treats these measures, adopted pursuant to Article 4(2) TEU, as a partial exemption permitted by Article 15(2) of Directive 2014/24/EU and Article 24(2) of Directive 2014/25/EU. That exemption concerns the specific ground for exclusion, while the remainder of the procurement procedure remains subject to their applicable regulations.

 IV.        THE ASSESSMENT BY THE COMPETENT AUTHORITY

One of the safeguards proposed by the Advocate General is that the threat to national security must be assessed by a competent authority. It is for each Member State to determine which body will carry out that assessment.

That competent authority may issue opinions that are binding on public authorities, provided that it examines the case and the specific and relevant circumstances in the light of the principle of proportionality and fundamental rights, and that sufficient reasons are given for the decision. Furthermore, the assessment must be amenable to effective judicial review.

At this point, the Advocate General expressly addresses the judgment in Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias. In that judgment, the CJEU held, in relation to the optional grounds for exclusion under Article 57(4) of Directive 2014/24/EU, that it is for the contracting authority, and for it alone, to assess whether a candidate or tenderer should be excluded by evaluating its integrity and reliability.

However, the Advocate General considers that this case-law does not preclude a contracting entity from being bound, in matters of national security, by an assessment carried out by a specialised authority. The distinction lies in the fact that exclusion on national security grounds does not fall within Article 57(4) of Directive 2014/24/EU, pursues different objectives and requires assessments of a different nature. Accordingly, EU law does not preclude the contracting authority from having no discretion to review independently the national security authority’s assessment, provided that the latter has carried out an individual and proportionate assessment that respects fundamental rights and that its decision is amenable to judicial review. Where national law also grants the contracting authority a degree of discretion, that approach is likewise compatible with EU law.

Furthermore, under the principle of proportionality, a decision to exclude one or more tenderers must be based on a specific and individual assessment supporting the conclusion that their participation in the procedure constitutes a genuine, present and sufficiently serious threat to national security. The evidence on which the decision is based must be sufficiently recent to reflect the current nature of the threat, and its relevance to the specific contract must be examined. The same safeguards apply when extending a national security decision concerning an earlier procurement procedure to another procedure.

It is for the body responsible for safeguarding national security to assess that evidence. It must also assess the duration of exclusion on a case-by-case basis, taking into account the particular circumstances of each Member State, each procurement contract and each economic operator. Review of the relevant circumstances must be possible within a reasonable time, and the procedure for obtaining a review must be clear to the operators concerned.

   V.        RIGHTS OF THE DEFENCE AND EFFECTIVE JUDICIAL REVIEW

In the Advocate General’s view, the foregoing is permissible provided that the decision may be challenged before a court and that the excluded economic operator’s rights of defence are respected.

The tenderer must have an opportunity to state its objections and submit evidence in its defence. To be able to do so in a manner that fully safeguards its rights of defence, the tenderer must know, at least, the essence of the grounds on which the exclusion is based.

This safeguard must be balanced against the protection of sensitive information, particularly where national security interests are concerned. The authority may therefore restrict access to the file and the information disclosed where disclosure would directly and specifically compromise national security. However, any restriction must be limited to what is strictly necessary and preserve the opportunity to present a defence. This must be assessed on a case-by-case basis.

As regards the information accessible to the court having jurisdiction to hear the case, in order to ensure effective judicial protection, the court must have full access to all the matters of fact and law on which the decision is based, including confidential information.

 VI.        CONCLUSIONS

According to the Advocate General, a ground for exclusion on national security grounds expressly laid down in a rule of general application in force may be applied even if it is not set out in the tender documents.

The Opinion provides useful guidance on risk assessment in procurement and safeguards for challenging decisions. From a preventive perspective, it is advisable to identify corporate and commercial links, including those within the supply chain, that may give rise to risks.

Ultimately, the Opinion’s principal contribution lies in distinguishing two dimensions: on the one hand, Member States retain considerable discretion to define and protect their national security interests and to establish specific grounds for exclusion; on the other hand, the exercise of that competence remains subject to EU law and must comply, among other safeguards, with proportionality, the duty to state reasons, the rights of the defence and the right to effective judicial protection.

The CJEU is expected to deliver its judgment within the next six months.