The European Court of Justice’s attorney general recommended today to rule that states may exclude bidders on national‑security grounds based on binding classified advice, up to a point.
Advocate General Andrea Biondi’s opinion, published on 8 September, says that such exclusions must still meet EU standards like proportionality, non‑discrimination, and be based on a concrete, current assessment. Contracting authorities must give excluded firms the essential reasons (without revealing secret details), and national courts must be able to review the legality of the exclusion, with only narrowly necessary parts of the evidence withheld.
The Advocate General’s opinion urged strict limits on security exclusions, but accepted classified evidence when necessary. He delivered his official opinion in the joined references C‑271/25 and C‑334/25 on Tuesday, 8 September. He sought to reconcile national security with EU procurement law. His is a cautious, middle‑way text. It accepts exceptions for secrecy, but demands judicial safeguards.
A middle-of-the-road move
Mr Biondi began by recognising national prerogatives. “Exclusion grounds from award procedures for reasons pertaining to the protection of national security, established by national provisions adopted pursuant to Article 4(2) of the framework of Directives 2014/24/EU and 2014/25/EU, must be qualified as autonomous and special exclusion grounds,” his opinion said. He thus accepts that some national measures sit outside ordinary procurement rules. That will comfort capitals worried about leaving security to Brussels.
At the same time, Mr Biondi pressed limits. He stressed that such national measures remain subject to Union law and fundamental rights. “The requirements of Article 57 of Directive 2014/24, such as the assessment of the proportionality of exclusion of suppliers, the requirement to request corrective measures, or the limitation of the exclusion period, do not apply, either directly or by analogy, to such national provisions, which however remain subject to compliance with Union law,” he said. His phrasing accepts an autonomy for security rules while insisting on legal boundaries.
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Mr Biondi then addressed the contracting authority’s duty to the excluded bidder. He proposed that authorities must disclose the essential content of the reasons for exclusion while preserving classified details. He puts the burden on national authorities to explain themselves, not to publish secrets.
“The principle of good administration and the principle of effective judicial protection, enshrined in Article 47 of the Charter, must be interpreted as meaning that, where a contracting authority excludes an operator from a procurement procedure pursuant to national provisions which provide for exclusion grounds for reasons linked to national security, it is obliged to communicate to the excluded operator the essential content of the reasoning on which the decision concerning it is based, while preserving the classified nature of information relating to national security,” the opinion says.
Legislative effects
Three practical effects will follow if the Court adopts his view. First, member states may keep classified screens that trigger automatic exclusions. Mr Biondi accepts that contracting authorities may rely on binding assessments from security services to exclude bidders outright. Second, governments will need procedures to give excluded firms a usable account of reasons. They cannot simply cite a secret dossier and refuse to explain. Third, national judges will get a real role in reviewing these exclusions — even if they must navigate secrecy.
Legislative reverberations will be swift. The Advocate General’s test could inform the Defence Procurement Regulation and future rules on critical ICT suppliers. If the Court follows him, Brussels may press for standardised confidentiality protocols, remedies to enable ‘self‑cleaning’, and clearer duties to give a meaningful gist of classified reasons. If the Court departs from his balance, member states may enjoy wider discretion, raising the risk of market fragmentation.
The requirements of Article 57 of Directive 2014/24 (…) do not apply, either directly or by analogy, to such national provisions, which however remain subject to compliance with Union law. — Andrea Biondi, ECJ Attorney General
Mr Biondi’s text, if adopted, would give national judges work to do. They would have to weigh secrecy against the right to a remedy in each case. That might invite procedural innovation: closed hearings with security-cleared counsel, special judges, or redacted gists. It would also push contracting authorities to document their security assessments more carefully.
The Advocate General’s opinion is not the final word. The Grand Chamber will rule in due course. Yet the opinion will shape arguments and the Court’s reasoning. It sets a clear template: security exclusions are permissible, but only within tightly defined legal bounds. National courts must be able to test them.
