TFEU 346: challenges and possibilities

Public procurement currently is one of the main tools of various public policy implementation - starting from the green environmental friendly compulsory requirements and finishing with a significant share of public procurement reservation for socially exposed groups of society. In general, the idea of implementation of public policy through the public procurement is not new and neither is shocking or amazing. But the legal possibilities to implement policy through the procurement in recent decades changed dramatically, because of the legal regulation changes due to European Union public procurement directives. While some of these changes, that are done in common (civil) public procurement area, might be considered as justifiable and written off to the permanent efforts of European Commission to deepen internal market integration, some other changes are just too exceptional and not compatible with commission goals or EU purposes overall. Further more, here comes really important side effect of commission efforts to deepen integration of internal market through the regulation of procurement - European Union regulations of the procurement in defence area. It must be noted, that first directive of procurement in defence area come into the power only in 2009 - and 2019 is the year, which might be considered as tenth anniversary of first viable commission effort to impose European regulations to the defence procurement area. Nevertheless, effectiveness and legality of the EU defence procurement regulations in general is still questionable due to the treaty of European Union and the exception stated in article 346 (ex 296). Irrespective of this, EU commission keeps putting efforts to limit the usage of the exception not only through the soft-law regulations, but from time to time challenging the usage of the exception in the ECJ. But is the EU defence procurement irective the only legal way to move forward with defence area procurement - or is there another way, fixed in TFEU 346? Of course it is, but before taking this side road, comprehensive evaluation of the exception application clauses, fixed in the Treaty of Function of European Union article 346 must be done, ECJ cases, concerning this issue must be revealed and other member states lessons learned studied. Moreover, public procurement in defence area doctrine different approaches and current practices in national regulations must be disclosed and evaluated, advantages and disadvantages of the possible solutions must be revealed. Lastly, the question if public procurement in defence area regulation viability, started by the EU commission 10 years ago - and might be called a version of public procurement in defence area 1.0 - must be reevaluated and ideas of moving towards public procurement in defence area for version of 2.0 must be proposed