Opinion of Advocate General Biondi delivered on 8 September 2026.###

Provisional text

OPINION OF ADVOCATE GENERAL

BIONDI

delivered on 8 September 2026 (1)

Joined Cases C‑271/25 and C‑334/25

‘Autovici’ UAB

v

‘CPO LT’ Všį (C‑271/25)

and

‘Skinest Baltija’ UAB

v

‘Lietuvos geležinkeliai’ AB (C‑334/25),

with the participation of:

‘LTG Cargo’ AB

(Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania))

( References for a preliminary ruling – Public procurement – Grounds for exclusion – National security – Article 4(2) TEU – Directive 2014/24/EU – Article 15(2) and Article 57 – Directive 2014/25/EU – Article 24(2) and Article 80 – Exclusion of an operator from a procedure for the award of a public contract because of a threat to national security – Power of assessment of the contracting authority or the contracting entity – Principles of equal treatment, non-discrimination, transparency and proportionality – Principle of good administration – Observance of the rights of the defence – Article 47 of the Charter of Fundamental Rights of the European Union – Right to an effective remedy – Classified information – Ground for exclusion laid down by law but not referred to in the procurement documents )

Table of contents

I. Introduction

II. Analysis

A. Safeguarding national security, with particular regard to public procurement

1. Safeguarding national security in primary EU law

2. Safeguarding national security in the procurement sector

B. The classification of grounds for exclusion for reasons of national security provided for in national legislation (first question in Case C271/25 and first question in Case C334/25)

C. The ground for exclusion based on information provided by the competent national security authorities (second question in Case C271/25 and third question in Case C334/25)

1. The scope of the procuring authority’s powers in applying grounds for exclusion relating to national security

2. Assessment of the proportionality of exclusion for reasons relating to national security

3. Observance of the rights of the defence

4. Conclusion regarding the second question referred for a preliminary ruling in Case C271/25 and the third question referred for a preliminary ruling in Case C334/25

D. The ground for exclusion based on a government decision concerning another procurement procedure (second question in Case C334/25)

1. Context of the question referred

2. Analysis

E. The contracting entity’s obligation to state reasons when applying grounds for exclusion relating to national security (third question in Case C271/25)

F. The scope of judicial review (fourth question in Case C271/25)

G. Reference to the ground for exclusion in the procurement documents (fourth question in Case C334/25)

III. Conclusion

Introduction

1.        These joined cases arise from two requests for a preliminary ruling made by the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania), the referring court. They provide the Court with an opportunity to rule on the sensitive issue of the interplay between the measures adopted by Member States to safeguard national security and the European Union’s rules on public procurement. The issue has become increasingly pertinent in the present geopolitical context, characterised by an escalation of hostile external threats and interference. Against this background, due consideration must be given to the need to safeguard national security in the context of public procurement procedures.

2.        The disputes pending before the referring court concern two appeals against decisions to exclude tenderers from procurement procedures. Those decisions were taken in accordance with Lithuanian legislation that allows contracting authorities to exclude economic operators from procurement procedures for reasons of national security.

3.        More specifically, Article 45(2¹) of the Law of the Republic of Lithuania on Public Procurement (‘the Law on Public Procurement’) (2) provides:

‘In the event of mobilisation, war or a state of emergency, or where the Government of the Republic of Lithuania – after assessing the risk that the factors that have led or could lead to the declaration of mobilisation or the imposition of a state of war or emergency pose a threat to national security – has taken a decision on the application of this provision, the contracting authority may reject a request to participate or a tender if at least one of the following conditions (or parts thereof), as selected by the contracting authority itself, is met:

…

(4)      the Government of the Republic of Lithuania, acting in accordance with the criteria laid down in the Law on the protection of objects of importance to ensuring national security,[ (3)] has adopted a decision confirming that the entities referred to in points 1 and 2 of this paragraph,[ (4)] or the transaction intended to be concluded (or already concluded) with those entities, are not in the interests of national security;

(5)      the contracting authority has information from the competent authorities indicating that the entities referred to in points 1 and 2 of this paragraph have interests that could pose a threat to national security.’

4.        Article 58(4¹)(4) and (5) of the Law of the Republic of Lithuania on procurement by contracting entities in the fields of water management, energy, transport or postal services (5) (‘the Law on procurement by contracting entities’) is worded almost identically. (6)

5.        With regard to the facts of the two disputes, it should first be emphasised that, in March 2022, the Republic of Lithuania declared a state of emergency in view of the unprecedented threat to national security interests posed by the military aggression carried out by the Russian Federation against Ukraine. On 14 September 2022, the Lithuanian Government considered that the circumstances that had justified the declaration of a state of emergency were still present and remained relevant for the purpose of safeguarding national security. Consequently, by Decree No 925, (7) the Lithuanian Government established the applicability of Article 45(2¹) of the Law on Public Procurement and Article 58(4¹) of the Law on procurement by contracting entities (together, ‘the national provisions at issue’), in accordance with those two provisions.

6.        With specific regard to Case C‑271/25, (8) CPO LT – the central organisation for public procurement in Lithuania – organised a public procurement procedure in 2020 for the sale and hire of passenger cars under a dynamic purchasing system (‘DPS’). Autovici UAB, a legal entity with its registered office in Lithuania, was authorised to take part in that DPS.

7.        On 12 April 2024, CPO LT received a letter from the Commission for the Coordination of the Protection of Objects of Importance to Ensuring National Security (9) (‘the Coordination Commission’), in which the latter stated that it had received information from the competent authorities (10) to the effect that Autovici and other persons associated with that company had connections with the authorities of foreign States, or with natural or legal persons of those States, which were of such a nature as to increase the risk or pose a threat to national security, or had had such connections in the past. The Coordination Commission also stated that the letter it had received from the competent authorities was classified and, therefore, the classified data were not set out in its opinion, which merely stated that those data substantiated and supplemented the non-classified data.

8.        On 26 April 2024, CPO LT informed Autovici of the decision to exclude it from the procurement procedure on the basis of point 5 of Article 45(2¹) of the Law on Public Procurement and the identical point of the procurement conditions, stating that it had received the relevant information from the Coordination Commission.

9.        Autovici challenged the decision to exclude it before the courts adjudicating on the substance, which dismissed its actions at both first and second instance. (11) Autovici has therefore challenged the appeal judgment before the referring court.

10.      With regard to Case C‑334/25, (12) by contrast, AB Lietuvos geležinkeliai (‘LG’), the state-owned railway undertaking of the Republic of Lithuania, launched a public procurement procedure in February 2022 for the purchase of railway equipment under a DPS. UAB Skinest Baltija, a legal entity with its registered office in Lithuania, was authorised to take part in that DPS.

11.      On 16 April 2024, LG, as the contracting entity, informed Skinest Baltija of the decision to exclude it from the DPS on account of, inter alia, the existence of a threat to national security, within the meaning of points 4 and 5 of Article 58(4¹) of the Law on procurement by contracting entities. The exclusion decision was based on two factors:

–        in the first place, two Government decrees of June 2018, (13) according to which the transactions that LG intended to enter into with Skinest Baltija were contrary to national security interests, as the owner of Skinest Baltija’s shareholder group had links with the authorities of foreign States, or with natural or legal persons from foreign States, that increased the risk or posed a threat to national security, and was the subject of criminal proceedings for an offence related to corruption;

–        in the second place, a letter dated 3 April 2024 from the Coordination Commission setting out the information on Skinest Baltija received from the competent authorities between January and March 2024, namely information on the links between the owner of Skinest Baltija’s shareholder group referred to above and authorities of foreign States or natural or legal persons from foreign States, as well as the assessment by those competent authorities of the risks to national security arising from such links.

12.      Skinest Baltija challenged the exclusion decision before the courts adjudicating on the substance. The court of first instance upheld the action, but the appeal court quashed the judgment given at first instance. (14) Skinest Baltija has therefore challenged the appeal judgment before the referring court.

13.      In that context, the referring court has decided to stay the proceedings pending before it and to refer several questions to the Court of Justice for a preliminary ruling.

14.      In Case C‑271/25, the referring court has referred the following questions:

‘(1)      Must the principles of equal treatment, non-discrimination, transparency and proportionality referred to in Article 18 of [Directive 2014/24/EU, (15)] and Articles 56 and 57 thereof, be interpreted as meaning that national legislation, under which an application or a tender submitted by a supplier is rejected where the contracting authority has been informed by the competent authorities that the interests of the supplier (or of persons associated with the supplier) may pose a threat to national security, is to be classified as a ground for exclusion of suppliers for the purposes of applying Article 57 of that directive or as an independent ground, linked to national security, for exclusion (prohibition) from participating in the public procurement procedure? In addition, are the requirements laid down in Article 57 of Directive 2014/24, including Article 57(7) thereof, such as the assessment of the proportionality of excluding suppliers, the request for remedial (“self-cleaning”) measures or the limitation of the period of exclusion, applicable directly or by analogy to such national provisions?

(2)      Irrespective of the answer to the first question, must the principles of equal treatment, non-discrimination, transparency and proportionality referred to in Article 18 of Directive 2014/24, and Articles 56 and 57 thereof, be interpreted as precluding a national provision such as that laid down in point 5 of Article 45(2¹) of [the Law on Public Procurement], which automatically excludes a supplier from a procurement procedure, without the contracting authority deciding independently whether the interests of the supplier (or of persons associated with the supplier) may pose a threat to national security in the context of the specific procurement, and without assessing the proportionality of the measure adopted (rejection of the application or tender) in the specific case?

(3)      Must Article 55(3) of Directive 2014/24, in particular the provision in that paragraph concerning the clause on law enforcement or the public interest, and the provisions in the fourth subparagraph of Article 1(1) and in Article 1(3) of [Directive 89/665/EEC, (16)] which provide for effective review procedures, read in conjunction with the principle of good administration under EU law and the principle of effective judicial protection enshrined in Article 47 of [the Charter of Fundamental Rights of the European Union], be interpreted as meaning that, when the contracting authority rejects an application or a tender on the basis of point 5 of Article 45(2¹) of the Law on Public Procurement, it must provide an exhaustive statement of reasons for its decision or, with a view to reconciling the principle of effective judicial protection and the principle of the protection of data relating to national security, it may provide only part of those data (a summary, extracts, the legal basis alone, and so on)? If the latter alternative were to be accepted, what criteria should be used to determine the scope of the data to be provided to the supplier, so that, without undermining the secrecy of the data relating to national security, the implementation of the principle of effective judicial protection of the infringed rights of the supplier is ensured?

(4)      Must the objective of Directive 89/665, the fourth subparagraph of Article 1(1) thereof and Article 1(3) thereof, read in conjunction with the principles of effective judicial protection and of a fair trial enshrined in Article 47 of the Charter, be interpreted as meaning that a court hearing a dispute concerning the legality of a contracting authority’s decision to reject a supplier’s application is prohibited from limiting its judicial review in such a way that, on account of the specific nature and content of the data on which the contested decision of the contracting authority is based, related to threats to national security, the content of those data would not be assessed and the procedural decision of the court does not rule on whether the data obtained from the competent authorities constituted a sufficient and justified ground for rejecting the application or tender?

If the answer to that question is in the affirmative, are the principles of effective judicial protection and of a fair trial enshrined in the [fourth] subparagraph of Article 1(1) of Directive 89/665, in Article 1(3) thereof and in Article 47 of the Charter observed if, in the event that a contracting authority decides to reject a supplier’s application or tender on the basis of point 5 of Article 45(2¹) of the Law on Public Procurement without relying on classified data, such data would be accessible to, and assessed by, only a court that is hearing a dispute concerning the lawfulness of such a decision of the contracting authority and that has the right to deal with classified information?’

15.      In Case C‑334/25, the referring court has referred the following questions:

‘(1)      Must the principles of equal treatment, non-discrimination, transparency and proportionality referred to in Article 36 of [Directive 2014/25/EU, (17)] and Article 80 of that directive, read in conjunction with Articles 56 and 57 of [Directive 2014/24], be interpreted as meaning that the provisions of national legislation under which a request to participate or a tender submitted by a supplier is rejected where (i) the Government of the Republic of Lithuania has adopted a decision confirming that the supplier or persons associated with the supplier, or the transaction intended to be concluded (or which has been concluded) with that supplier or those persons, would not comply with national security interests, and/or (ii) the contracting authority has been informed by the competent authorities that the interests of the supplier or of persons associated with the supplier may pose a threat to national security, are to be classified as grounds for the exclusion of suppliers for the purpose of applying Article 57 of Directive 2014/24 or as independent grounds, linked to national security, for exclusion (prohibition) from participating in the public procurement procedure? In addition, are the requirements laid down in Article 57 of Directive 2014/24, including Article 57(7) thereof, such as the assessment of the proportionality of excluding suppliers, the request for remedial (“self-cleaning”) measures or the limitation of the period of exclusion, applicable directly or by analogy to such national provisions?

(2)      Irrespective of the answer to the first question, must the principles of equal treatment, non-discrimination, transparency and proportionality referred to in Article 36 of Directive 2014/25, and Article 80 of that directive, read in conjunction with Articles 56 and 57 of Directive 2014/24, be interpreted as precluding a national provision such as that laid down in point 4 of Article 58(4¹) of [the Law on procurement by contracting entities], under which a supplier’s request to participate or tender is to be rejected solely on the basis that a public authority (the Government) has adopted a decision in respect of that supplier in another procurement, without setting a period during which that decision remains current and without defining the obligation of the contracting entity to assess the impact, on the specific procurement, of the circumstances set out in that decision (inter alia, whether those circumstances are current or whether the facts have changed)?

(3)      Irrespective of the answer to the first question, must the principles of equal treatment, non-discrimination, transparency and proportionality referred to in Article 36 of Directive 2014/25, and Article 80 of that directive, read in conjunction with Articles 56 and 57 of Directive 2014/24, be interpreted as precluding a national provision such as that laid down in point 5 of Article 58(4¹) of [the Law on procurement by contracting entities], which automatically excludes a supplier from a procurement procedure, without the contracting entity deciding independently whether the interests of the supplier or of persons associated with the supplier may pose a threat to national security in the context of the specific procurement, and without assessing the proportionality of the measure adopted (rejection of the request to participate or the tender) in the specific case?

(4)      Do the provisions of Directive 2014/25 and the principle of equal treatment, together with the obligation of transparency flowing therefrom, preclude the application of a ground for rejecting the request to participate or the tender submitted by a supplier (a ground for exclusion from participation in the public procurement procedure) that is laid down in national law, such as that laid down in point 4 or point 5 of Article 58(4¹) of [the Law on procurement by contracting entities], if that ground has not first been included in the specific procurement documents?’

I.      Analysis

16.      The various questions referred for a preliminary ruling by the referring court in the two present cases concern the national provisions at issue, referred to in points 3 and 4 above, which establish grounds for exclusion from public procurement procedures for reasons of national security. A reading of the two orders for reference reveals two key features of that national legislation that must be taken into account when analysing the questions referred.

17.      In the first place, the national provisions at issue apply only in the event of mobilisation, war, the declaration of a state of emergency, or if the Lithuanian Government – in relation to threats to national security arising from such situations – has taken an explicit decision on their application. That condition was met here: the provisions became applicable following the adoption of Decree No 925, referred to in point 5 above. The present cases therefore concern legislation of an exceptional nature, inasmuch as it relates to extraordinary situations posing a threat to national security, and is also temporary, given that, as has been highlighted by the Lithuanian Government, its application ceases once such extraordinary situations posing a threat to national security have come to an end.

18.      In the second place, it is clear from the orders for reference (18) that the national provisions at issue are intended to reduce threats to national security that, in the extraordinary situations referred to above, might arise from participation in public procurement procedures by persons identified as posing a risk, in accordance with those provisions. The specific, stated objective of these provisions of national law is therefore to safeguard the general interest relating to national security.

19.      In that context, before addressing the questions referred for a preliminary ruling by the referring court, I consider it appropriate, as a preliminary matter, to make some observations on safeguarding national security under EU law, in the light of the Court’s case-law, with particular regard to public procurement.

A.      Safeguarding national security, with particular regard to public procurement

1.      Safeguarding national security in primary EU law

20.      In primary EU law, the key provision concerning the protection of national security is Article 4(2) TEU. The second sentence of that provision stipulates that the Union ‘shall respect [Member States’] essential State functions, including … safeguarding national security’, while the third sentence thereof provides that ‘national security remains the sole responsibility of each Member State’.

21.      The Court has provided a definition of the concept of national security. It is clear from case-law that the competence in matters of national security referred to in Article 4(2) TEU corresponds to the primary interest in protecting the essential functions of the State and the fundamental interests of society and encompasses the prevention and punishment of activities capable of seriously destabilising the fundamental constitutional, political, economic or social structures of a country and, in particular, of directly threatening society, the population or the State itself. (19)

22.      Such threats, which might relate to both internal and external security, may be specific to a Member State or of a global nature and may be man-made or occurring naturally (as in the case of natural disasters). In practice, however, their content depends on a multitude of factors that may vary between different Member States and over time, based on historical, political and geopolitical considerations. (20)

23.      It is precisely because of the multifaceted nature of the concept of national security that the Court, in its settled case-law, has recognised that Member States have a margin of discretion in determining the content of that concept, in defining the security measures appropriate for safeguarding it in the context in question, (21) and in determining the level of protection sought. (22) The Court has, furthermore, explicitly clarified that Article 4(2) TEU requires that due account be taken of the specific characteristics of each Member State in safeguarding its national security, characteristics that arise from the threats facing that Member State or from the geopolitical context in which that State operates. (23)

24.      In summary, the concept of national security is a concept of EU law (24) that the Court has interpreted as being autonomous and distinct from the concepts of ‘public security’, (25) ‘internal security’ (26) or ‘public policy/law and order’. (27) The latter three concepts serve primarily as grounds for limiting the freedoms enshrined in the FEU Treaty and are therefore subject to well-established and stringent requirements under EU law. Although such concepts might overlap in practice, they fulfil different legal functions, derive from different provisions of the Treaty and have distinct implications for the division of competences between the Union and the Member States.

25.      That said, according to case-law, the mere fact that a national measure has been taken for the purpose of protecting national security cannot render EU law inapplicable and exempt the Member States from their obligation to comply with that law. (28) Therefore, measures adopted by the Member States in connection with the legitimate requirements of national interest are not excluded in their entirety from the application of EU law solely because they are taken in the interests of, inter alia, national security. (29)

26.      Accordingly, while measures relating to the protection of national security remain within the exclusive competence of each Member State pursuant to the last sentence of Article 4(2) TEU, where such measures interfere with areas falling within the scope of Union law, they must comply with the fundamental requirements arising from that law.

27.      The Court has therefore simply reaffirmed one of the fundamental principles of the EU legal order: the existence of a national competence does not exempt the exercise of that competence from scrutiny as to its compatibility with EU law. This is not merely a semantic distinction, but an important safeguard against Member States unduly extending the scope of their discretion. This concern is particularly acute in the field of security, where justifications couched in general terms are increasingly being invoked in a variety of different contexts. As Advocate General Jacobs observed, referring to a previous period in history when the spectre of war was once again looming over Europe, although judicial scrutiny in matters of national security is necessarily limited, Member States do not enjoy unlimited discretion. The ultimate limit is that, in his own words, they must not make ‘improper use’ of their powers. (30) The Court therefore plays a vital role in ensuring that an approach does not take hold that would allow security to become an all-encompassing concept, capable of exempting national measures from the review of compatibility referred to above.

28.      Lastly, it should also be noted that the objective of safeguarding national security, when viewed within a broader context, could correspond to and overlap with the objective of ensuring the stability and security of the Union, (31) an objective pursued by provisions or measures adopted by the Union itself for that purpose. (32) In such cases, measures adopted by Member States for the purposes of national security, but which are consistent with the objectives of safeguarding European security, constitute measures that are functionally complementary, forming part of a convergence of separate provisions in which the national interest and that of the Union merge.

2.      Safeguarding national security in the procurement sector

29.      With specific regard to the public procurement sector, as has been highlighted by a number of interveners before the Court, in view of hybrid threats and actions by third countries aimed at destabilising EU Member States and acquiring sensitive information, the question of the interplay between, on the one hand, the need to safeguard national and European security and, on the other, EU legislation in this sector has taken on ever-greater significance in the current geopolitical context. Against that background, the need to take account of national security requirements in procurement procedures applies not only to the defence sector but to any area in which such procedures could prove to be sensitive in terms of safeguarding State security.

30.      The interplay between the need to safeguard national security and EU procurement law also creates a certain tension between potentially conflicting elements: on the one hand, the need to adopt appropriate measures to counter direct threats to the essential functions of the State and the fundamental interests of society, and, on the other, the need to comply with the principles of the internal market that underpin EU law in the field of public procurement, and in particular Directives 2014/24 and 2014/25, which are designed to ensure the free movement of goods and services and the opening up of public contracts to undistorted competition in all the Member States. (33)

31.      On this point, it is settled case-law that the only permitted exemptions to the application of Directives 2014/24 and 2014/25 are those which are exhaustively and expressly referred to therein. (34)

32.      At first glance, Directives 2014/24 and 2014/25 do not appear to deal explicitly with the issue of safeguarding national security in the context of public procurement procedures. The term ‘national security’ does not appear in any of the recitals or articles of those directives. As was highlighted at the hearing, the explanation for this is likely to be found in the fact that the issue did not appear particularly pressing at the time of the adoption of the directives, which took place in a different geopolitical context from the current one. In reality, however, those directives contain certain elements that make it possible to determine how the need to safeguard national security interacts with the public procurement rules set out in those acts.

33.      First, recitals 41 and 56, respectively, of Directives 2014/24 and 2014/25 make it clear that ‘nothing in this Directive should prevent the imposition or enforcement of measures necessary to protect public policy, public morality, public security, … provided that those measures are in conformity with the TFEU’. Although those recitals do not explicitly refer to ‘national security’, the reference to public security, when read in the light of Article 4(2) TEU, can be understood as referring, a fortiori, to national security.

34.      Second, Directives 2014/24 and 2014/25 contain two provisions, with identical wording, which provide for exceptions relating to the ‘protection of the essential security interests of a Member State’. These are Article 15(2) of Directive 2014/24 and Article 24(2) of Directive 2014/25, pursuant to which ‘this Directive shall not apply to public contracts … not otherwise exempted under paragraph 1,[ (35)] to the extent that the protection of the essential security interests of a Member State cannot be guaranteed by less intrusive measures, for instance by imposing requirements aimed at protecting the confidential nature of information which the contracting authority makes available in a contract award procedure as provided for in this Directive’.

35.      Those provisions therefore allow a Member State to exclude procurement of certain public services from the procedures laid down in Directives 2014/24 and 2014/25 where the application of those directives could undermine that Member State’s ‘essential security interests’ and the protection of those interests, in accordance with the principle of proportionality, cannot be guaranteed by measures less intrusive than total exclusion from the scope of the directives. (36)

36.      Two comments seem necessary regarding those two provisions.

37.      In the first place, the Court has already had occasion to clarify that the term ‘security’ referred to in those provisions includes, in particular, the safeguarding of national security as referred to in Article 4(2) TEU and as defined in point 23 above. (37) There is therefore no doubt that the two articles in question also relate to national security.

38.      In the second place, those two provisions explicitly allow Member States to exclude public procurement contracts in their entirety from the scope of the directives, where necessary, in order to safeguard essential national security interests. In essence, they allow the entire contract award procedure to be exempted from application of the rules laid down in those directives. (38)

39.      However, the possibility of excluding a procurement contract entirely from the scope of the directives is subject to the condition – reflecting the principle of proportionality (39) – that the protection of a Member State’s essential security interests cannot be ensured by ‘less intrusive’ measures.

40.      Directives 2014/24 and 2014/25 do not clarify exactly what is meant by ‘less intrusive’ measures. On this point, it can nevertheless be argued that Member States have at their disposal less intrusive measures than excluding the entire contract from the scope of those directives. Such instruments may be adopted either within the framework of the directives themselves, where they permit this, (40) or outside that regulatory framework, in particular through measures based on Article 4(2) TEU.

41.      Indeed, given that those provisions allow for the adoption of measures that are ‘less intrusive’ than the complete exclusion of the entire procurement procedure from the scope of the directives, they must also be understood as permitting the ‘partial’ exclusion of a procurement procedure from the scope of Directives 2014/24 and 2014/25. From this perspective, in order to safeguard essential national security interests, those provisions permit the exclusion of only specific aspects of the procurement procedure, where such a measure constitutes a ‘less intrusive’ – and therefore more proportionate – means of achieving that objective than excluding the entire contract from the rules laid down in the directives.

42.      An interpretation of Article 15(2) of Directive 2014/24 and Article 24(2) of Directive 2014/25 along these lines appears to be consistent with the legislature’s intention. (41) Furthermore, by allowing Member States not only a total exemption but also, where possible and appropriate for the purpose of safeguarding essential national security interests, a partial exemption of the procurement contract from the application of the directives, such an interpretation is not only consistent with the principle of proportionality – inasmuch as it allows the objective of safeguarding national security to be achieved without going beyond what is necessary to attain that objective (42) – but also ensures the effectiveness of those provisions by allowing for flexibility in their application. (43)

43.      In this regard, it should also be noted that, according to case-law, as with derogations from fundamental freedoms, derogations in the field of public procurement must also be interpreted restrictively. (44)

44.      It is in the light of the principles set out above that it is now necessary to examine the various questions referred to the Court of Justice by the referring court for a preliminary ruling.

B.      The classification of grounds for exclusion for reasons of national security provided for in national legislation (first question in Case C‑271/25 and first question in Case C‑334/25)

45.      The first questions referred for a preliminary ruling in both cases, which must be dealt with jointly as they are essentially the same, are divided into two parts.

46.      The first part concerns the classification of the national provisions at issue referred to in points 3 and 4 above. The referring court asks whether those provisions – under which a request to participate in a procurement procedure or a tender submitted by a supplier may be rejected on grounds relating to the protection of national security – should be classified as additional grounds for exclusion within the meaning of Article 57 of Directive 2014/24, (45) or as autonomous and sui generis grounds for exclusion.

47.      In the second part of those questions, the referring court asks whether the requirements laid down in Article 57 of Directive 2014/24, such as the assessment of the proportionality of excluding suppliers, the request for remedial (‘self-cleaning’) measures or the limitation of the period of exclusion, are applicable directly or by analogy to such national provisions.

48.      With regard, first of all, to the first part of the first questions referred, it should be noted that the national provisions at issue govern a specific aspect of the award procedure, introducing a particular ground for exclusion designed to safeguard, as has already been noted, (46) national security. Where they are applicable, those provisions are in fact designed to exclude an economic operator from procurement procedures where it is established, by means of a specific government instrument or on the basis of information provided by the competent national security authorities, that that operator or entities associated with it pose a threat to national security.

49.      As has been noted by the referring court itself, neither Directive 2014/24 nor Directive 2014/25 establishes a ground for exclusion of that nature. (47) The national provisions at issue must therefore be regarded as measures adopted by the Republic of Lithuania within the meaning of Article 4(2) TEU, a provision which, as has already been noted, recognises the competence of Member States to define their essential national security interests, the level of protection to be afforded to those interests, and the measures deemed appropriate to ensure that they are safeguarded. Accordingly, those provisions have a legal basis distinct from that of Directives 2014/24 and 2014/25.

50.      On the basis of that characterisation, the grounds for exclusion for reasons relating to the protection of national security established by the national provisions at issue constitute grounds for exclusion sui generis, the legal basis for which lies not in Directives 2014/24 and 2014/25, but in Article 4(2) TEU.

51.      As measures designed to regulate a specific aspect of the procurement procedure, namely a particular ground for exclusion, with the aim of safeguarding national security, those provisions constitute ‘less invasive’ measures within the meaning of Article 15(2) of Directive 2014/24 and Article 24(2) of Directive 2014/25, adopted by the Member State concerned outside the framework of those directives in order to safeguard its essential national security interests. As noted in points 34 to 42 of the present Opinion, by virtue of those provisions of EU law, such measures fall outside the scope of Directives 2014/24 and 2014/25, provided that the remainder of the procurement procedure as such remains subject to the provisions of those directives.

52.      Moreover, although the respect that the European Union must have for the essential functions of the State does not mean that measures such as the national provisions at issue entirely escape the application of EU law, (48) it nevertheless follows from case-law that Article 4(2) TEU requires that the application of secondary Union law must not be such as to hinder the proper performance of those essential functions. (49) The application of those rules – in this instance, those relating to procurement procedures – cannot therefore prevent or hinder the implementation of the specific measures that each Member State deems necessary to implement in order to safeguard its national security, (50) in accordance, moreover, with the objectives laid down in recitals 41 and 56, respectively, of Directives 2014/24 and 2014/25, referred to in point 33 above.

53.      Furthermore, and for the sake of completeness, it follows from the foregoing that the grounds for exclusion laid down in the national provisions at issue cannot be regarded as additional grounds established within the meaning of Article 57(4) of Directive 2014/24.

54.      On this point, that provision – to which the third subparagraph of Article 80(1) of Directive 2014/25 refers – sets out a number of grounds on which contracting authorities must or may exclude an economic operator from participating in a procurement procedure.

55.      It follows from case-law that the optional grounds for exclusion capable of justifying the exclusion of an economic operator from participation in a procurement procedure, as listed exhaustively in Article 57(4) of Directive 2014/24, justify exclusion for reasons based on objective factors relating to its professional qualities, to a conflict of interest or to a distortion of competition that would arise from its involvement in the preparation of that procedure. (51)

56.      In the present case, as noted above, the objectives pursued by the grounds for exclusion laid down in the national provisions at issue do not, like the grounds for exclusion laid down in Article 57(4) of Directive 2014/24, relate to the economic operator’s professional capacity, (52) but are intended, on the basis of a preventive approach, to avert threats to national security.

57.      Furthermore, while they must be applied in accordance with the principle of equal treatment and of the principle of transparency entailed thereby, the grounds for exclusion laid down in the national provisions at issue are not specifically intended to ensure compliance with those principles in the context of public procurement. They therefore also do not correspond to the additional grounds for exclusion in respect of which the Court has recognised the Member States’ right to maintain or adopt substantive rules within the framework of Directive 2014/24. (53)

58.      The optional grounds for exclusion laid down in the national provisions at issue are therefore ‘ontologically’ distinct from those laid down in Article 57(4) of Directive 2014/24.

59.      Next, with regard to the second part of the first questions referred for a preliminary ruling, given that, as is apparent from the considerations set out in points 48 to 52 above, grounds for exclusion such as those laid down in the national provisions at issue relating to the protection of national security fall outside the scope of Directives 2014/24 and 2014/25, the provisions of Article 57 of Directive 2014/24 cannot be applied to those grounds, either directly or by analogy.

60.      Nevertheless, as noted above, the measures contained in those provisions are not, as a whole, exempt from the application of EU law. Where Member States, in pursuing legitimate objectives relating to the protection of their national security interests, adopt measures that give rise to derogations from the provisions of EU law by overlapping with areas governed by that law, they are nevertheless required to comply with EU law and, in particular, with the requirements arising from the Treaties, the Charter of Fundamental Rights and the general principles of EU law. In the context of procurement, particular attention should be paid to the fundamental principles governing procurement, such as the principle of proportionality, the principle of equal treatment and non-discrimination, and the principle of transparency, which are in themselves general principles of EU law. (54) Furthermore, the requirements arising from the right to good administration, the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter, and the general principle of legal certainty are undoubtedly relevant.

61.      Accordingly, although the procedural safeguards laid down in Article 57 of Directive 2014/24 – and in particular in paragraphs 6 and 7 thereof – apply only to grounds for exclusion harmonised at Union level, forms of safeguard that are at least partly analogous derive directly from the sources of primary Union law referred to above.

62.      In conclusion, in the light of all of the foregoing, I consider that the first questions referred for a preliminary ruling in Cases C‑271/25 and C‑334/25 should be answered to the effect that grounds for exclusion from public procurement procedures for reasons relating to the protection of national security, established by national provisions adopted pursuant to Article 4(2) TEU, outside the framework of Directives 2014/24 and 2014/25, must be classified as autonomous and sui generis grounds for exclusion to which the provisions of those directives do not apply by virtue of Article 15(2) of Directive 2014/24 and Article 24(2) of Directive 2014/25. Consequently, the requirements laid down in Article 57 of Directive 2014/24, such as the assessment of the proportionality of excluding suppliers, the request for remedial (‘self-cleaning’) measures or the limitation of the period of exclusion, are not applicable either directly or by analogy to such national provisions, which nevertheless remain subject to compliance with EU law and, in particular, to the requirements arising from the Treaties, the Charter of Fundamental Rights and the general principles of EU law.

C.      The ground for exclusion based on information provided by the competent national security authorities (second question in Case C‑271/25 and third question in Case C‑334/25)

63.      The second question referred for a preliminary ruling in Case C‑271/25 and the third question referred for a preliminary ruling in Case C‑334/25 essentially raise the same issues concerning the rule referred to in point 5 of the two national provisions at issue referred to in points 3 and 4 above. It is therefore appropriate to deal with those questions together.

64.      In those questions, the referring court refers to the principles of equal treatment, non-discrimination, transparency and proportionality laid down in Article 18 of Directive 2014/24 and Article 36 of Directive 2014/25, as well as Articles 56 and 57 of Directive 2014/24. (55) That court asks whether those rules and principles preclude national provisions that entail the automatic exclusion of a supplier from a procurement procedure, where a procuring authority has information from the competent authorities indicating that the supplier or entities associated with it have interests that could pose a threat to national security, without the procuring authority being able to assess independently whether that is the case in the context of the specific procurement contract and without that procuring authority being able to assess the proportionality of rejecting the request to participate or the tender in the specific case.

65.      On this point, the referring court observes that, according to the interpretation of the national provisions at issue given by the courts adjudicating on the substance, (56) in applying those provisions, the procuring authority has no discretion in the matter. It is therefore required to comply with the information received from the competent authorities regarding the threat to national security, without being able to assess it independently.

66.      The referring court has doubts: first, as to the compatibility of that interpretation with the powers which the contracting authority is recognised as having as a result of the case-law stemming from the judgment in Infraestruturas de Portugal; second, as to whether an automatic exclusion, without any assessment of the current nature and relevance of the specific circumstances of the case, is compatible with the principle of proportionality; and, third, as to whether that interpretation is compatible with the excluded operator’s rights of defence.

67.      As a preliminary point, it should be noted, in the first place, that, as can be inferred from points 48 to 52 above, Directives 2014/24 and 2014/25 do not apply to provisions such as the national provisions at issue. Accordingly, the references to those directives are not relevant for the purpose of answering the questions referred by the referring court for a preliminary ruling. Nevertheless, as has already been stated, such national provisions are subject to the general principles of EU law, which include the principles of equal treatment, non-discrimination, transparency and proportionality referred to in those questions.

68.      In the second place, it should be noted that, on the basis of the information contained in the Court’s file, two possible interpretations of the national provisions at issue appear to emerge. In fact, the Lithuanian Government proposes an interpretation of those provisions that differs from that adopted by the courts adjudicating on the substance, as recalled in point 65 above. Referring to the wording of those provisions, which state that the procuring authority ‘may’ reject a request to participate or a tender, the Lithuanian Government argues that those provisions do not entail an automatic exclusion. Rather, while not conferring on the procuring authority the power to challenge, on the merits, the assessment of the risk to national security carried out by the competent authorities, they nevertheless grant the procuring authority the possibility to assess the relevance of the information provided to it regarding the specific procurement contract in question. The referring court appears to recognise the existence of such a margin when it itself describes the grounds for exclusion as ‘optional’. The Lithuanian Government also highlights the possibility established under national legislation for the procuring authority to seek further clarification from the competent national security authorities.

69.      Although it is for the referring court to interpret national law and thus to determine its scope, (57) I nevertheless consider that, in order to provide that court with a useful answer, those two different possible interpretations should be borne in mind in the remainder of this analysis.

1.      The scope of the procuring authority’s powers in applying grounds for exclusion relating to national security

70.      Turning to the concerns raised by the referring court, that court first of all questions the scope of the procuring authority’s powers in applying grounds for exclusion relating to national security and, in particular, the absence of discretion in assessing the circumstances relating to those grounds.

71.      On this point, it should first be noted that EU law does not regulate the question of which body is designated by a Member State to carry out assessments relating to national security risks; nor does it regulate the question of the specific procedures by means of which such assessments are carried out. Those questions are therefore a matter for the domestic legal order of each Member State. (58)

72.      It is therefore for each Member State to decide, in accordance with Article 4(2) TEU, which bodies are competent to carry out assessments of threats to national security. (59) As the referring court itself points out, such assessments constitute specific activities generally entrusted to specialised public bodies endowed with specific powers and competences and which have access to classified information. In this context, procuring authorities generally lack the necessary expertise and do not have access to the classified information required to carry out such assessments independently.

73.      That said, it is also apparent from case-law that EU law not only does not preclude a Member State from conferring on a body entrusted with specialist functions linked to national security the task of carrying out such assessments, but also does not preclude that body from issuing opinions that impose measures aimed at safeguarding national security, in a binding manner and on other administrative authorities, provided that that competent national security body complies with the fundamental requirements deriving from EU law. (60)

74.      Those requirements include, in particular, the need to carry out a specific and individual assessment of all the relevant particular circumstances of the case, in the light of the principle of proportionality, the fundamental rights whose observance the Court ensures, and the need to comply with the obligation to state reasons, which constitutes not only an expression of the principle of good administration but also a prerequisite for the right to effective judicial review guaranteed by the first paragraph of Article 47 of the Charter. (61)

75.      I consider that this approach could also be applied to measures intended to safeguard national security in the procurement sector. It follows, therefore, that EU law does not preclude national legislation under which a body specifically competent to carry out assessments relating to risks to national security may issue binding opinions concerning such risks in relation to a particular economic operator, resulting in that operator’s automatic exclusion from one or more procurement procedures. This applies, however, subject to the condition that that competent body complies with the fundamental requirements deriving from EU law referred to in the previous point of the present Opinion.

76.      In practical terms, this means that the body in question must adopt a decision on the binding guidance for procuring authorities on the basis of a specific and individual assessment of all the relevant circumstances, and must give reasons for that decision, which must then be subject to effective judicial review.

77.      Although such an approach essentially grants the procuring authority almost no margin of discretion, I consider that it is not contrary to the case-law arising from the judgment in Infraestruturas de Portugal.

78.      In that judgment, the Court ruled, with regard to the optional grounds for exclusion laid down in Article 57(4) of Directive 2014/24, that the EU legislature intended to entrust the contracting authority, and only the contracting authority, with the task of assessing whether a candidate or tenderer is to be excluded from a public procurement procedure by determining the integrity and reliability of each of the economic operators participating in that procedure. (62)

79.      However, the situation in this instance is fundamentally different from that of the case decided in the judgment in Infraestruturas de Portugal.

80.      First, as is apparent from points 48 to 58 above, the exclusion for reasons of national security provided for by the national provisions at issue does not fall within any of the cases laid down in Article 57(4) of Directive 2014/24 and is, quite simply, outside the scope of that directive. Furthermore, the grounds for exclusion laid down in the national provisions at issue pursue different objectives. They therefore require different assessments and are ontologically distinct from the grounds laid down in Article 57(4) of Directive 2014/24. (63)

81.      It follows from the foregoing that EU law does not, in principle, preclude national provisions under which the procuring authority has no discretion in assessing the circumstances relating to the ground for exclusion from the contract for reasons of national security and is, therefore, bound by information received from the competent national security authorities without being able to assess it independently, provided that those competent authorities have complied with the fundamental requirements deriving from EU law.

82.      That said, if the referring court nevertheless finds that the national provisions at issue must be interpreted, as argued by the Lithuanian Government, (64) as granting the procuring authority the possibility to assess the relevance of the information with which it has been provided in relation to the specific procurement contract in question, I consider that EU law also does not preclude such an approach.

83.      On the one hand, in accordance with what has been stated in points 71 and 72 above, it is for the Member State to decide which bodies are competent to carry out assessments relating to national security threats. A Member State is therefore free to decide to grant the procuring authority a certain degree of discretion in this regard, provided that the fundamental requirements deriving from EU law, as referred to in points 74 and 76 above, are complied with. On the other hand, given that the procuring authority is granted such a margin of discretion, such an interpretation of the national provisions at issue appears to be even more in line with the discretionary power which procuring authorities are recognised as having as a result of the case-law stemming from the judgment in Infraestruturas de Portugal.

2.      Assessment of the proportionality of exclusion for reasons relating to national security

84.      The second set of concerns raised by the referring court relates to compliance with the principle of proportionality in the event of the automatic exclusion of an economic operator from a procurement procedure on the basis of a ground for exclusion founded on a binding report provided by the competent national security authorities. The referring court is concerned, in particular, about the lack of any power on the part of the procuring authority in terms of assessing, first, how up-to-date the information is on which that report is based; second, the relevance of the threat to national security in terms of the procurement contract in question; and, third, the failure to determine the duration of the exclusion.

85.      As noted in points 74 and 76 above, in accordance with the principle of proportionality, any report issued by the body responsible for national security that is binding on the procuring authority and that may lead to the automatic exclusion of an operator from a procurement procedure must, inter alia, be adopted on the basis of a specific and individual assessment of all the relevant factors (65) leading to the conclusion that that operator’s participation in that procedure constitutes a real, present and sufficiently serious threat to national security. (66)

86.      In the first place, as regards how up-to-date the information is, the principle of proportionality requires that the exclusion decision be based on sufficiently recent evidence that is capable of reflecting the current nature of the threat that the economic operator poses to national security. That evidence must be such as to demonstrate that the threat to national security is still present at the time the decision is taken.

87.      Accordingly, any changes concerning the factual situation that led to the conclusion that a threat to national security existed (67) must be taken into account in the specific and individual assessment of the particular circumstances. However, this does not alter the fact that the actual determination of whether a threat to national security exists remains within the remit of the national authority responsible for such assessments. It is therefore the task of that authority to assess whether such new evidence means that the established risk of a threat to national security no longer exists.

88.      In other words, the principle of proportionality, as a general principle of EU law, does not require that the procuring authority – on the basis of any new evidence provided by the economic operator – must have the power to challenge the conclusions reached by the competent national security authority regarding the threat that that operator poses to national security. It merely requires that that new evidence be taken into account in the analysis of the particular circumstances leading to the conclusion that there is a present threat to national security. It will be for the relevant competent authority, where necessary, to review its assessment in the light of any new evidence. In accordance with the procedural rules laid down by the Member State in that regard, such a review may be commenced either on the initiative of the procuring authority itself, which may consult the competent authority on the matter, or on the initiative of the operator concerned, where this is permitted under the relevant national law.

89.      In the second place, as regards the relevance to the procurement contract in question of the elements or facts on which the conclusion concerning the threat to national security is based, this is also a point that must be taken into account in the specific and individual assessment of all the particular circumstances of the case. However, in my view, it cannot be ruled out that, in certain situations, it may prove necessary – in order effectively to safeguard national security – entirely to exclude an operator linked to hostile third countries from all public procurement contracts, regardless of the specific subject matter of the procurement procedure. The assessment of the relevance of the factors to be taken into account forms part of the assessment as to whether there is a threat to national security and is, in principle, a matter for the competent body. The principle of proportionality does not require that the procuring authority must be able to challenge such assessments, although they must certainly be substantiated and subject to effective judicial review.

90.      In the third place, as regards the question of the duration of an exclusion from one or more procurement procedures, based on information relating to the risks to national security posed by an economic operator, this too is an assessment that falls within the remit of the body responsible for safeguarding national security and must be carried out on a case-by-case basis, taking into account the specific circumstances of each Member State, each procurement contract and each economic operator. In any event, the requirement that the information on which the report is based remain up-to-date implies that it must be possible to carry out some form of review of the particular circumstances within a reasonable time frame. Furthermore, the principle of legal certainty requires that the economic operators concerned must be left in no doubt as to the procedures for potentially obtaining a review of the decision.

91.      In this instance, it should also be noted that, as is apparent from point 17 above, the application of the national legislation in question is, by its very nature, temporary, as it is linked to the continued existence of the exceptional circumstances that justify its application.

92.      It is for the referring court to assess whether all the requirements set out above have been met in the cases pending before it, taking due account of the extraordinary nature of the legislation being applied.

3.      Observance of the rights of the defence

93.      The third set of concerns raised by the referring court relates to the protection of the economic operator’s rights of defence in the administrative proceedings leading to its exclusion from the procurement procedure on the basis of the ground for exclusion founded on information provided by the competent national security authorities, as established by the national provisions at issue. Those concerns relate to the fact that the economic operator in question is unable, first, to provide explanations regarding its circumstances; second, to submit new evidence to demonstrate that it does not pose any threat to national security; and, third, to examine the information received by the procuring authority.

94.      On this point, it should also be borne in mind that the Member States are required, when they implement EU law, as has been highlighted in point 60 above, to ensure compliance with the requirements of the right to good administration, which requires observance of the rights of defence of the person concerned during the administrative procedure. (68)

95.      It is apparent from the Court’s settled case-law that, with regard to the administrative procedure, observance of the rights of the defence means that the addressees of decisions which significantly affect their interests – such as decisions to exclude them from procurement procedures – must be placed in a position, by the authorities of the Member States when they adopt measures that fall within the scope of EU law, in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. (69)

96.      The purpose of that requirement is specifically to enable the competent authority to comply with its obligation, as recalled in point 74 of the present Opinion, to carry out an individual assessment of all the relevant particular circumstances, which requires that the addressee of that decision be able to correct an error or submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content. (70)

97.      Given that that requirement necessarily presupposes that that addressee must have a genuine opportunity to acquaint himself or herself with the evidence on which the authorities intend to base their decision, observance of the rights of the defence entails as a corollary a right of access to all the material in the file during the administrative procedure. (71)

98.      In that regard, it should be borne in mind that the rights of the defence are not absolute rights, and may be limited on the basis of a weighing up of, on the one hand, the general principle of good administration and, on the other, the interests at stake, in particular those relating to national security. (72)

99.      Furthermore, in so far as EU law does not contain any specific provision defining the manner in which the rights of the defence are to be exercised in the event of decisions being taken to exclude tenderers from procurement procedures on the basis of sui generis grounds relating to national security, the practical arrangements for the procedures established for that purpose fall within the legal order of the individual Member States, in accordance with the principles of equivalence and effectiveness and in compliance with the requirements arising from the right to good administration. (73)

100. With regard to the first two concerns raised by the referring court and recalled in point 93 above, it is clear that the opportunity for a person to provide explanations regarding his or her own situation and to submit new evidence (or not) in that regard constitutes the very essence of the rights of the defence.

101. Therefore, even though the practical exercise of those aspects of the rights of the defence may be adapted in accordance with the weighing up referred to in point 98 above, I am convinced that the operator must be guaranteed some means of expressing his or her point of view and presenting evidence in his or her defence. In particular, an economic operator must be able to raise any changes in circumstances that could affect the assessment of whether there is a threat to national security.

102. This could be done, for example, by submitting a request to the body that carried out the individual assessment of the risk to national security. If no provision is made for such a request, the solution that – according to the Lithuanian Government – is provided for under the law of that Member State also appears to be appropriate. That government refers to the possibility of communication between the contracting entity and the body responsible for national security, with a view to ascertaining whether the information provided by the operator in question regarding the alleged change in its circumstances, in relation to the existence of a threat to national security, might alter the assessment of the current nature of the threat.

103. Lastly, with regard to the third concern raised by the referring court, as recalled in point 93 above, it follows from case-law that that weighing up of, on the one hand, the general principle of good administration and, on the other, the interests at stake, in particular those relating to national security, may result in certain information in the file not being disclosed to the person concerned, where disclosure of that information is likely to jeopardise the national security of the Member State concerned in a direct and specific manner. (74)

104. Therefore, although the Member States may, in particular where national security so requires, decide not to grant the person concerned direct access to the entirety of his or her file in the context of an administrative procedure, specifically relating to a procurement procedure, they cannot – without acting in breach of the principle of effectiveness, the general principle of good administration and the right to an effective remedy – place the person concerned in a situation where neither that person nor his or her representative would be able to gain effective knowledge, where applicable in the context of a specific procedure designed to protect national security, of the substance of the decisive material contained in that file. (75)

4.      Conclusion regarding the second question referred for a preliminary ruling in Case C‑271/25 and the third question referred for a preliminary ruling in Case C‑334/25

105. In conclusion, in the light of the foregoing, I consider that the second question referred for a preliminary ruling in Case C‑271/25 and the third question referred for a preliminary ruling in Case C‑334/25 should be answered as follows: EU law – in particular the principles of equal treatment, non-discrimination, transparency and proportionality – does not preclude national provisions that entail the automatic exclusion of a supplier from a procurement procedure, on the basis of binding information from a competent national security authority indicating that the supplier or entities associated with it have interests that could pose a threat to national security, without the procuring authority being able to assess independently whether that is the case in the context of the specific procurement contract and without that procuring authority being able to assess the proportionality of rejecting the request to participate or the tender in the specific case, provided that the body responsible for national security complies with the fundamental requirements deriving from EU law.

106. Those requirements include, in particular, the need to carry out a specific and individual assessment of all the relevant particular circumstances of the case in question, on the basis of up-to-date information, in the light of the principle of proportionality and the fundamental rights, as well as the need to comply with the obligation to state reasons and to observe the rights of defence of the excluded operator, on the basis of a balance being struck between, on the one hand, the general principle of good administration and, on the other, interests relating to national security.

D.      The ground for exclusion based on a government decision concerning another procurement procedure (second question in Case C‑334/25)

107. By the second question referred for a preliminary ruling in Case C‑334/25, the referring court asks whether the principles of equal treatment, non-discrimination, transparency and proportionality (76) are to be interpreted as precluding a national provision under which a supplier’s request to participate or tender must be rejected solely on the basis that a public authority (the government) has adopted a decision in respect of that supplier concerning national security risks in another procurement procedure, without setting a period during which that decision remains current and without defining the obligation of the contracting entity to assess the impact, on the specific procurement procedure, of the circumstances set out in that decision (in particular, whether those circumstances are current or whether the facts have changed).

1.      Context of the question referred

108. The question referred concerns the provision laid down in point 4 of Article 58(4¹) of the Law on procurement by contracting entities referred to in point 4 of the present Opinion. (77) That provision refers explicitly to the Law on the protection of objects of importance to ensuring national security. (78)

109. It is apparent from the order for reference that that law, which is applied in accordance with predefined criteria relating to the value and subject matter of the procurement contract, provides for an ad hoc procedure conducted by the Coordination Commission with a view to determining whether a transaction is contrary to the interests of national security. At the end of that procedure, the government then adopts the final decision, in the form of a decree, setting out the legal and factual grounds, as to whether the transaction in question is in line with national security interests. (79)

110. In the event that it is decided that that transaction is not in line with those interests, pursuant to point 4 of Article 58(4¹) of the Law on procurement by contracting entities – where that provision is applicable in the exceptional circumstances set out in points 5 and 17 of the present Opinion – the contracting entity is bound to comply with the government’s final decision and must therefore reject the request to participate or the tender of the operator concerned and may not award the contract to that party.

111. The referring court notes, however, that in the main proceedings pending before it in Case C‑334/25, the special law referred to above was not applied and no ad hoc procedure was carried out in respect of the procurement contract in question. The exclusion by the contracting entity in question was based on the two government decrees of June 2018, referred to in point 11 above, which did indeed concern the operator in question, namely Skinest Baltija, but in the context of other procurement procedures previously conducted by the same contracting entity, namely LG.

112. In that context, the referring court notes that the scope of the procuring authority’s discretion is unclear as regards the relevance, in a particular procurement procedure, of a government decree adopted in connection with another procurement procedure. That court highlights the risk that an operator might be automatically excluded from the contract award procedure solely on the basis of the existence of a government decree relating to another procurement contract, even if a significant period of time has elapsed since the government decree was adopted.

113. In the context of the present question referred, (80) the Lithuanian Government has also put forward its own interpretation of point 4 of the national provisions at issue, arguing that those provisions grant the procuring authority the possibility to assess the relevance of the circumstances set out in the government decrees to the different procurement contract that it is required to award. As has already been noted, although it is for the referring court to interpret national law, in order to provide that court with a useful answer, this possible interpretation should also be borne in mind in the remainder of this analysis.

2.      Analysis

114. First of all, it follows from the observations set out in point 75 et seq. of the present Opinion that EU law does not preclude national legislation that provides for the adoption of decisions that are binding on the procuring authority concerning the automatic exclusion of an operator from one or more procurement procedures on the basis of assessments, carried out by a body specifically empowered to do so, regarding the risks to national security posed by that operator, provided that the fundamental requirements deriving from EU law referred to in point 74 of the present Opinion are complied with, and this is the case regardless of whether the procuring authority has any discretion with regard to that exclusion.

115. Accordingly, provided that those requirements are met, EU law does not, in principle, preclude legislation such as that outlined in points 109 and 110 above.

116. However, the referring court notes that, in this instance, that legislation was not applied and the ad hoc procedure laid down therein was not followed in relation to the procurement procedure in question. Rather, it would appear that there has been an extension of the application of government decrees concerning the same company, but which were adopted in relation to previous procurement contracts awarded by the same client, namely the state-owned railway company.

117. In that context, the referring court raises, in essence, two concerns.

118. The first concern relates to the procuring authority’s lack of power to assess the impact, on the specific procurement procedure, of the circumstances set out in the decision concerning the other procurement procedure, in particular with regard to the current nature of those circumstances and their relevance in the context of the contract it is to award.

119. On this point, it follows from what has already been stated (81) that it is not necessary for national legislation to confer a specific power of assessment on the procuring authority with regard to the application of grounds for exclusion relating to national security. It is for each Member State to determine which bodies are competent to carry out assessments concerning threats to national security, and it is therefore possible that the decision might be taken not to grant the procuring authority any discretion in this regard.

120. However, it has also been noted that the principle of proportionality requires an analysis of the particular circumstances of each case, with particular regard to the relevance and up-to-date nature of the grounds on which exclusion from the specific procurement contract in question is based.

121. First, with regard to relevance, although – as is apparent from point 89 above – it is in principle conceivable that an operator might be excluded from several public contracts or categories of public contracts (or even from all procurement procedures) on the basis of an established threat to national security posed by that operator, such a blanket exclusion must undoubtedly be duly justified and substantiated.

122. In my view, those considerations also apply to the extension of decisions concerning an operator in one procurement procedure to other procurement procedures. In certain situations, it might be legitimate automatically to extend a finding that an operator poses a threat to national security where the circumstances giving rise to that threat (such as, for example, existing links with hostile third countries) are established and the procurement contracts in question are comparable and both relate to a sensitive sector that is particularly at risk (such as, for example, the rail sector). This does not, however, alter the fact that such an extension must be applied in accordance with the fundamental requirements of EU law referred to in point 74 et seq. of the present Opinion.

123. Second, with regard to how up-to-date the information is, it follows from points 86 to 88 above that the individual assessment of each situation requires the authority responsible for assessing threats to national security to examine any new evidence put forward by the operator concerned, while ensuring that that operator’s rights of defence are observed, in accordance with the requirements set out in points 94 to 104 above and in accordance with the specific procedures laid down by national law.

124. With regard to the second concern raised by the referring court, this relates to the failure to specify the duration of the measure, namely the government decrees that, by establishing the existence of a threat to national security in relation to the operator concerned, result in exclusion not only from the procurement contract to which the decrees refer, but also, by virtue of their scope, from various other procurement contracts.

125. On this point, I refer to the considerations set out in points 90 and 91 of the present Opinion, which are also relevant in this context, and in particular to the reference to the exceptional and temporary nature of the national provisions at issue.

126. It is for the referring court to assess whether those requirements have been met in the case pending before it, taking due account of the extraordinary and temporary nature of the legislation being applied. In this regard, it is also clear from the order for reference that the exclusion in question was based not only on an extension of the scope of the decrees, but also on information provided subsequently that confirmed the existence of a threat to national security in relation to the entity concerned.

127. In conclusion, in the light of the foregoing, I consider that the second question referred for a preliminary ruling in Case C‑334/25 must be answered as follows: the principles of equal treatment, non-discrimination, transparency and proportionality must be interpreted as not precluding a national provision, of an exceptional and temporary nature, under which a procuring authority is required to reject the request to participate or the tender of a supplier by extending to that supplier a decision concerning risks to national security adopted by a competent body in that regard in relation to another procurement procedure, provided that that competent body complies with the fundamental requirements deriving from EU law. Those requirements include, in particular, that the extension must be justified in the light of all the relevant particular circumstances of the case in question, assessed on the basis of up-to-date information, having regard to the principle of proportionality and the fundamental rights, including, in particular, the rights of defence of the operator concerned.

E.      The contracting entity’s obligation to state reasons when applying grounds for exclusion relating to national security (third question in Case C‑271/25)

128. By the third question referred for a preliminary ruling in Case C‑271/25, the referring court asks whether Article 55(3) of Directive 2014/24, as well as the provisions laid down in the fourth subparagraph of Article 1(1) and in Article 1(3) of Directive 89/665, in conjunction with the principle of good administration and the principle of effective judicial protection enshrined in Article 47 of the Charter, are to be interpreted as meaning that, where the contracting authority rejects a request to participate or a tender pursuant to national provisions laying down grounds for exclusion from procurement procedures for reasons of national security, it must provide a full statement of reasons for its decision, or whether it may provide only part of such information. If the answer is the latter, the referring court then asks what criteria should be used to determine the scope of the data to be provided to the excluded operator.

129. As a preliminary point, it should be noted, first, that, for the reasons set out in point 67 above, the references to Article 55(3) of Directive 2014/24 are not relevant for the purpose of answering the question referred.

130. Second, it follows from Article 1(1) of Directive 89/665 that that directive applies to contracts referred to in Directive 2014/24, unless such contracts are excluded in accordance with, in particular, Article 15 of the latter directive. It can be inferred from the answer to the first questions referred, and in particular from points 48 to 51 above, that provisions such as the national provisions at issue, which lay down grounds for exclusion for reasons of national security, may be classified as ‘less intrusive’ measures, within the meaning of Article 15(2) of Directive 2014/24, which fall outside the scope of that directive. Accordingly, they also fall outside the scope of Directive 89/665. The reference to that directive is therefore not relevant for the purpose of answering the present question referred. Nevertheless, as has already been pointed out on several occasions above, such national provisions are subject to the general principles of EU law, which include the principles of good administration and effective judicial protection referred to in that question.

131. In that regard, that question is divided into two parts. In the first part, the referring court questions the scope of the procuring authority’s obligation to state reasons where a ground for exclusion relating to national security is applied. In the second part, if it is to be held that, in the statement of reasons for the exclusion decision, only part of the relevant information may be provided to the excluded operator, the referring court seeks clarification as to the criteria to be used to determine which information may be disclosed.

132. On this point, case-law has emphasised the particular importance of the obligation on national authorities to state the reasons for their decisions, in accordance with the general principle of EU law relating to good administration. That obligation puts the addressees of such decisions in a position to defend their rights and decide in full knowledge of the circumstances whether it is worthwhile to bring an action against those decisions. (82) It is also necessary in order to enable the courts to review the legality of those decisions and it is therefore a requirement for ensuring that the judicial review guaranteed by Article 47 of the Charter is effective. (83)

133. However, in certain cases, a national authority may oppose precise and full disclosure to the person concerned of the grounds which constitute the basis, specifically, of an exclusion decision in relation to a procurement procedure, by invoking reasons of national security. (84) Furthermore, in accordance with point (a) of Article 346(1) TFEU, no Member State is obliged to supply information the disclosure of which is considered contrary to the essential interests of its security.

134. In order to determine the extent to which the grounds may be disclosed to the person concerned, a balance must be struck between, on the one hand, the requirements arising from the general principle of good administration and the right to effective judicial protection and, on the other, interests relating to national security. (85) That balance must appropriately take account of the requirements flowing from national security and those arising from that general principle and that fundamental right, limiting any interference with the exercise of such rights to that which is strictly necessary. (86)

135. That weighing up cannot, however, lead, in the light of the need to respect Article 47 of the Charter, render the rights of defence of the person concerned ineffective or deprive his or her right to effective judicial protection guaranteed by that article of its substance, in particular by failing to inform that person, or, as the case may be, his or her representative, at the very least of the substance of the grounds on which the decision taken in respect of him or her is based. (87)

136. As has already been noted in point 103 above, that weighing up may, nevertheless, result in certain information in the file not being disclosed to the person concerned, where disclosure of that information is likely to jeopardise the security of the Member State concerned in a direct and specific manner. (88)

137. In this instance, with regard to the first part of the question referred, concerning the scope of the obligation to state reasons, it follows from the case-law cited in the preceding points that an operator excluded on the basis of grounds for exclusion such as those laid down by the national provisions at issue must, in principle, be informed of the substance of the reasons on which the decision taken in respect of that operator is based, following the balancing exercise referred to in those points. The administrative authority responsible for carrying out that balancing exercise and providing those reasons may be the procuring authority or the competent national security authority, depending on the procedural framework laid down by national law in this regard. (89)

138. Accordingly, where necessary, on the basis of a balancing of the requirements arising from the general principle of good administration and the right to effective judicial protection, on the one hand, and interests relating to national security, on the other, that authority will not be required to provide a fully exhaustive statement of reasons for its decision, as suggested in the first alternative set out in the question referred. It must confine itself to communicating the essential content of those reasons, while ensuring that the classified nature of information relating to national security is preserved (90) and without disclosing any information where disclosure would be contrary to its essential national security interests.

139. The essential content of the statement of reasons must be assessed on a case-by-case basis by the competent administrative authority, subject to review, where appropriate, by the national court, taking into account the type and nature of the information on which the decision in question is based and the specific balancing of the interests at stake.

140. With regard to the second part of the question referred, concerning the criteria to be applied in order to determine the scope of the statement of reasons and the information that must be provided to the person concerned, it follows from the case-law referred to above that this consists of the risk of a direct and specific threat to national security, while limiting the interference with the right to effective judicial protection to what is strictly necessary.

141. Accordingly, the substantive statement of reasons given must not contain classified information where the disclosure of that information could directly and specifically jeopardise national security. Care must, however, be taken to ensure that the restriction of the right to effective judicial protection is limited to what is strictly necessary to prevent such a threat.

142. It is for the referring court to assess specifically whether those requirements have been met in the cases pending before it.

143. However, with regard to the points set out in the order for reference, and in order to provide that court with as useful an answer as possible, the following considerations still seem to me to be relevant.

144. In the first place, I consider that it cannot be ruled out that, in certain circumstances, it might be sufficient to provide only certain details when the decision to exclude an operator from the procurement procedure is notified. Those details may include the legal provision which has been applied, the fact that a notification has been received from the Coordination Commission, and a statement that the reason for such exclusion lies in the fact that, on the basis of the information received, it was established that the operator concerned had connections with the authorities of foreign States, or with natural or legal persons of those States, which were of such a nature as to increase the risk or pose a threat to national security, or had had such connections in the past. Depending on the specific circumstances of the case, it might therefore not be necessary to provide the letter from the Coordination Commission or the letters from the competent authorities referred to in that letter, provided that their substance is sufficiently conveyed. (91) It is for the referring court to assess whether such an approach was in fact indispensable in this instance in order to prevent a direct and specific threat to national security.

145. In the second place, as regards the fact that some of the information contained in the Coordination Commission’s letter was in the public domain, (92) this does not, in my view, necessarily mean that the failure to disclose it in the context of proceedings concerning the exclusion of an operator from a procurement procedure on grounds of national security was unlawful. That information must, in fact, be viewed in the context of the assessment carried out to determine whether there is a threat to national security. In that context, it cannot be ruled out that, depending on the specific circumstances, the disclosure of that information might nevertheless be detrimental to national security. This could, for example, be the case if such disclosure, in that specific context, would make it possible to infer other classified information. Furthermore, given that the information was in the public domain, it is also necessary to assess whether the failure to disclose it did indeed constitute interference with the excluded operator’s right to effective judicial protection, bearing in mind that that operator had access to the information and could, if necessary, have used it to defend its interests.

146. It is for the referring court to carry out the specific assessments relating to all those aspects.

147. In conclusion, in the light of all of the foregoing, I consider that the third question referred for a preliminary ruling in Case C‑271/25 should be answered as follows: 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 laying down grounds for exclusion for reasons of national security, it is required to communicate to the excluded operator the essential content of the reasons on which the decision taken in respect of that operator is based, while ensuring that the classified nature of the information relating to national security is preserved. To that end, that contracting authority must strike a balance between the requirements deriving from the general principle of good administration and the right to effective judicial protection, on the one hand, and interests relating to national security, on the other. The criterion to be applied in order to determine the scope of the statement of reasons and the information that must be provided to the person concerned consists of the risk of a direct and specific threat to national security, while limiting interference with the right to effective judicial protection to what is strictly necessary.

F.      The scope of judicial review (fourth question in Case C‑271/25)

148. By the fourth question referred for a preliminary ruling in Case C‑271/25, the referring court asks the Court of Justice to clarify the scope of judicial review in a dispute concerning the lawfulness of a contracting authority’s decision to exclude an operator from a procurement procedure on grounds relating to national security. The question referred is divided into two parts.

149. In the first part, the referring court asks whether the principles of effective judicial protection and the right to a fair trial, enshrined in Article 47 of the Charter, (93) preclude the judicial review of that exclusion decision from being limited on account of the specific nature and content of the information relating to national security on which that decision is based. As a result of that limitation, the national court would not assess the content of that information and would therefore not rule on the lawfulness of the exclusion decision in so far as it is based on that information.

150. If the answer is in the affirmative, the referring court asks in the second part of the question whether, where the contracting authority adopts an exclusion decision without having had access to classified information, it is consistent with Article 47 of the Charter that only the court hearing the dispute concerning the lawfulness of that decision has access to and may assess such information.

151. As regards the first part of the question referred, it is clear from the Court’s settled case-law that, in the case of administrative decisions based on classified information relating to national security, judicial review must in any event be comprehensive and effective. Member States are required to provide for effective judicial review both of the existence and validity of the reasons invoked by the competent national authority with regard to national security and of the legality of the decision taken on the basis of those reasons. (94)

152. In exercising that comprehensive and effective judicial review, the competent national court must be able to consider all the legal and factual elements on which the decision in question was based, including all the grounds and all the relevant evidence, (95) and must be able to carry out an independent examination of all those elements. To that end, it must necessarily be able to have at its disposal the information required in order to decide in full knowledge of the facts, including confidential information. (96) Indeed, the secrecy or confidentiality of information relating to national security on the basis of which that decision was taken is no valid objection. (97)

153. Accordingly, in disputes concerning the lawfulness of decisions to exclude operators from procurement procedures for reasons of national security based on provisions such as the national provisions at issue, such decisions must be subject to comprehensive and effective judicial review, in which the competent national court has access to all the factual and legal elements on which those decisions are based and is able to assess them independently in order to determine whether such decisions are lawful. To that end, where necessary, a national court must order the production of all information – including classified information – relating to the subject matter of the dispute, which is necessary to carry out that comprehensive and effective review.

154. As regards the second part of the question referred, the fact that it is only before the national court that the classified nature of the information relating to national security cannot be raised as a valid objection, and that the contracting authority, unlike that court, did not have access to the classified information at the time the exclusion decision was adopted, does not necessarily entail an infringement of the right of the person concerned to an effective remedy.

155. On this point, the adversarial principle, which is an element of the rights of the defence enshrined in Article 47 of the Charter, implies the right for the parties to a case to examine all the evidence or observations submitted to the court for the purpose of influencing its decision, and to discuss them. The fundamental right to an effective legal remedy would be infringed if a judicial decision were founded on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to state their views. (98)

156. However, if it turns out that overriding considerations concerning the protection of national security preclude the disclosure to the person concerned of all or part of the grounds or evidence which form the basis for the exclusion decision, the judicial review of the lawfulness of that exclusion must be carried out in the context of a procedure which strikes an appropriate balance between the requirements arising from those overriding considerations, on the one hand, and those of the right to effective judicial protection, on the other, in particular the right to respect for the principle of an adversarial process, while limiting any interference with that right to what is strictly necessary. (99)

157. To that end, it is necessary, on the one hand, for the person concerned to be informed about the essence of the grounds which constitute the basis of the decision in question in a manner, moreover, which takes due account of the necessary confidentiality of the evidence. (100)

158. On the other hand, the weighing up of the right to effective judicial protection against the necessity to protect the security of the Member State concerned could result in certain items of evidence not being disclosed where the disclosure of that evidence is liable to compromise State security in a direct and specific manner. (101)

159. It follows from all of the foregoing that, in my view, the fourth question referred for a preliminary ruling in Case C‑271/25 should be answered as follows: the principles of effective judicial protection and the right to a fair trial, enshrined in Article 47 of the Charter, preclude – in a dispute concerning the lawfulness of a decision by a contracting authority to exclude an operator from a procurement procedure for reasons relating to national security – situations in which the judicial review of that exclusion decision is restricted on account of the nature and specific content of the information relating to national security on which that decision is based, so that the national court does not assess its content and therefore does not rule on the lawfulness of that decision in relation to the justification for the rejection based on that information. The fact that it is only before the court that the classified nature of the information relating to national security cannot be raised as a valid objection, and that the contracting authority, unlike the court, did not have access to the classified information at the time the exclusion decision was adopted, does not entail an infringement of the right of the person concerned to an effective remedy, provided that the substance of the reasoning on which the decision in question is based is disclosed to that person in a manner that takes due account of the necessary confidentiality of the evidence, and provided that the only information withheld from the person concerned consists of those items of evidence the disclosure of which could directly and specifically jeopardise national security.

G.      Reference to the ground for exclusion in the procurement documents (fourth question in Case C‑334/25)

160. By the fourth question referred for a preliminary ruling in Case C‑334/25, the referring court asks, in essence, whether the principle of equal treatment, combined with the obligation of transparency arising from that principle, precludes the contracting authority from rejecting a request to participate or a tender on the basis of a ground for exclusion relating to national security provided for in national law, where that ground has not been previously included in the specific procurement documents. (102)

161. On this point, it follows from the Court’s settled case-law that the principle of equal treatment and the obligation of transparency, which govern all procedures for the award of public contracts, require the substantive and procedural conditions concerning participation in a contract to be clearly defined in advance and made public, in particular the obligations of tenderers, in order that those tenderers may understand exactly the procedural requirements and be sure that the same requirements apply to all candidates. (103)

162. The Court’s case-law has insisted on the need for all the conditions and detailed rules of the award procedure to be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question. (104)

163. Accordingly, while there is no doubt that, in accordance with the principles of equal treatment and the obligation of transparency, tenderers must be able to ascertain the terms of the tender procedure, it is not, however, necessary for all eligibility criteria to be expressly stated in the contract notice or the tender specifications, provided that certain general requirements may be regarded as being common knowledge even where they are not explicitly stated in those documents.

164. On this point, it has been noted that, given the aim of the obligation to publish the conditions, which is to ensure that the content and significance of those conditions are understood by ‘all reasonably informed tenderers exercising ordinary care’, it would be illogical for all contracting authorities to be obliged also to specify those conditions that are required to be fulfilled by generally applicable legislative provisions of which a ‘reasonably informed tenderer exercising ordinary care’ cannot be unaware. (105)

165. In line with this approach, it is clear from case-law that the principles of equal treatment and transparency do not preclude a tenderer from being excluded under national legislation that lays down certain statutory obligations, even where the contract notice does not expressly refer to those obligations. (106)

166. It follows from the foregoing that, in this instance, the operator excluded under the national provisions in question cannot rely, to support its case, on the fact that the procurement documents did not contain or refer to the grounds for exclusion relating to national security established by those general legislative provisions of which a reasonably informed tenderer exercising ordinary care could not have been unaware.

167. In the light of the foregoing considerations, the answer to the fourth question referred for a preliminary ruling in Case C‑334/25 is that the principles of equal treatment and transparency do not preclude a contracting authority from rejecting a request to participate or a tender on the basis of a ground for exclusion relating to national security expressly provided for in the national law in force, even where that ground was not previously referred to in the specific procurement documents.

II.    Conclusion

168. In the light of all the foregoing considerations, I propose that the Court answer the questions referred by the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) as follows:

(1)      Grounds for exclusion from public procurement procedures for reasons relating to the protection of national security, established by national provisions adopted pursuant to Article 4(2) TEU, outside the framework of Directives 2014/24 and 2014/25, must be classified as autonomous and sui generis grounds for exclusion to which the provisions of those directives do not apply by virtue of Article 15(2) of Directive 2014/24 and Article 24(2) of Directive 2014/25. The requirements laid down in Article 57 of Directive 2014/24, such as the assessment of the proportionality of excluding suppliers, the request for remedial (‘self-cleaning’) measures or the limitation of the period of exclusion, are not applicable either directly or by analogy to such national provisions, which nevertheless remain subject to compliance with EU law and, in particular, to the requirements arising from the Treaties, the Charter of Fundamental Rights of the European Union and the general principles of EU law.

(2)      EU law – in particular the principles of equal treatment, non-discrimination, transparency and proportionality – does not preclude national provisions that entail the automatic exclusion of a supplier from a procurement procedure, on the basis of binding information from a competent national security authority indicating that the supplier or entities associated with it have interests that could pose a threat to national security, without the procuring authority being able to assess independently whether that is the case in the context of the specific procurement contract and without that authority being able to assess the proportionality of rejecting the request to participate or the tender in the specific case, provided that the body responsible for national security authority complies with the fundamental requirements deriving from EU law. Those requirements include, in particular, the need to carry out a specific and individual assessment of all the relevant particular circumstances of the case in question, on the basis of up-to-date information, in the light of the principle of proportionality and the fundamental rights, as well as the need to comply with the obligation to state reasons and to observe the rights of defence of the excluded operator, on the basis of a weighing up of, on the one hand, the general principle of sound administration and, on the other, interests relating to national security.

(3)      The principles of equal treatment, non-discrimination, transparency and proportionality must be interpreted as not precluding a national provision, of an exceptional and temporary nature, under which a procuring authority is required to reject the request to participate or the tender of a supplier by extending to that supplier a decision concerning risks to national security adopted by a competent body in that regard in relation to another procurement procedure, provided that that competent body complies with the fundamental requirements deriving from EU law. Those requirements include, in particular, that the extension must be justified in the light of all the relevant particular circumstances of the case in question, assessed on the basis of up-to-date information, having regard to the principle of proportionality and the fundamental rights, including, in particular, the rights of defence of the operator concerned.

(4)      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 laying down grounds for exclusion for reasons of national security, it is required to communicate to the excluded operator the essential content of the reasons on which the decision taken in respect of that operator is based, while ensuring that the classified nature of the information relating to national security is preserved. To that end, it must strike a balance between the requirements deriving from the general principle of good administration and the right to effective judicial protection, on the one hand, and interests relating to national security, on the other. The criterion to be applied in order to determine the scope of the statement of reasons and the information that must be provided to the person concerned consists of the risk of a direct and specific threat to national security, while limiting interference with the right to effective judicial protection to what is strictly necessary.

(5)      The principles of effective judicial protection and the right to a fair trial, enshrined in Article 47 of the Charter, preclude – in a dispute concerning the lawfulness of a decision by a contracting authority to exclude an operator from a procurement procedure for reasons relating to national security – situations in which the judicial review of that exclusion decision is restricted on account of the nature and specific content of the information relating to national security on which that decision is based, so that the national court does not assess its content and therefore does not rule on the lawfulness of that decision in relation to the justification for the rejection based on that information. The fact that it is only before the court that the classified nature of the information relating to national security cannot be raised as a valid objection, and that the contracting authority, unlike the court, did not have access to the classified information at the time the exclusion decision was adopted, does not entail an infringement of the right of the person concerned to an effective remedy, provided that the substance of the reasoning on which the decision in question is based is disclosed to that person in a manner that takes due account of the necessary confidentiality of the evidence, and provided that the only information withheld from the person concerned consists of those items of evidence the disclosure of which could directly and specifically jeopardise national security.

(6)      The principles of equal treatment and transparency do not preclude a contracting authority from rejecting a request to participate or a tender on the basis of a ground for exclusion relating to national security expressly provided for in the national law in force, even where that ground was not previously referred to in the specific procurement documents.

---

1      Original language: Italian.

---

2      Lietuvos Respublikos viešųjų pirkimų įstatymas, in the version applicable to the dispute pending before the referring court.

---

3      Lietuvos Respublikos nacionaliniam saugumui užtikrinti svarbių objektų apsaugos įstatymas.

---

4      Namely: the supplier, its subcontractor, the economic operators whose capacities are relied on, the manufacturer of the goods (including their components and packaging) offered by the supplier, or the persons controlling them.

---

5      Lietuvos Respublikos pirkimų, atliekamų vandentvarkos, energetikos, transporto ar pašto paslaugų srities perkančiųjų subjektų, įstatymas, in the version applicable to the dispute pending before the referring court.

---

6      The only difference between the two articles appears to be the use of the term ‘contracting entity’ instead of ‘contracting authority’.

---

7      Dėl Lietuvos Respublikos viešųjų pirkimų įstatymo 45 straipsnio 2¹ dalies, Lietuvos Respublikos pirkimų, atliekamų vandentvarkos, energetikos, transporto ar pašto paslaugų srities perkančiųjų subjektų, įstatymo 58 straipsnio 4¹ dalies ir Lietuvos Respublikos viešųjų pirkimų, atliekamų gynybos ir saugumo srityje, įstatymo 33 straipsnio 9 dalies taikymo.

---

8      For a more detailed account of the facts of the case, see paragraphs 16 to 27 of the order for reference in Case C‑271/25.

---

9      Nacionaliniam saugumui užtikrinti svarbių objektų apsaugos koordinavimo komisija.

---

10      Namely the Department of Internal Security of the Republic of Lithuania, the Antrojo operatyvinių tarnybų departamento prie Krašto apsaugos ministerijos (Second Department of Operational Services under the Ministry of National Defence, Lithuania), [and] the Special Investigation Service of the Republic of Lithuania.

---

11      For a summary of the judgments of the courts adjudicating on the substance, see paragraphs 22 to 26 of the order for reference in Case C‑271/25.

---

12      For a more detailed account of the facts of the case, see paragraphs 14 to 24 of the order for reference in Case C‑334/25.

---

13      Lietuvos Respublikos Vyriausybės 2018 m. birželio 6 d. nutarimas Nr. 526 and Lietuvos Respublikos Vyriausybės 2018 m. birželio 20 d. nutarimas Nr. 597.

---

14      For a summary of the judgments of the courts adjudicating on the substance, see paragraphs 20 to 23 of the order for reference in Case C‑334/25.

---

15      Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

---

16      Council Directive of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).

---

17      Directive of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).

---

18      See paragraph 42 of the respective orders for reference in Case C‑271/25 and Case C‑334/25.

---

19      See judgment of 6 October 2020, La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 135), and, specifically, in relation to procurement, judgment of 7 September 2023, Commission v Poland (C‑601/21, EU:C:2023:629, paragraph 79 and the case-law cited).

---

20      On this point, see the Opinion of Advocate General Emiliou in Commission v Poland (C‑601/21, EU:C:2023:151, points 46 and 49).

---

21      See, to that effect, judgment of 15 July 2021, Ministrstvo za obrambo (C‑742/19, EU:C:2021:597, paragraph 40), and, with regard to the essential security interests of the Member States referred to in Article 346 TFEU and Article 15(2) of Directive 2014/24, judgment of 7 September 2023, Commission v Poland (C‑601/21, EU:C:2023:629, paragraph 76 and the case-law cited).

---

22      See, with regard to the essential security interests of the Member States, judgment of 7 September 2023, Commission v Poland (C‑601/21, EU:C:2023:629, paragraph 77).

---

23      See, to that effect, judgment of 15 July 2021, Ministrstvo za obrambo (C‑742/19, EU:C:2021:597, paragraph 44).

---

24      See, with regard to essential national security interests, the Opinion of Advocate General Kokott in Commission v Austria (State printing office) (C‑187/16, EU:C:2017:578, point 46 and the case-law cited).

---

25      As referred to in Articles 36, 45, 52, 65 [and] 202 TFEU.

---

26      As referred to in Articles 71, 72 [and] 276 TFEU.

---

27      As referred to in Articles 36, 45, 52, 65, 72, 202, 276 [and] 347 TFEU.

---

28      See, in that regard, inter alia, judgments of 29 July 2024, protectus (C‑185/23, EU:C:2024:657, paragraph 62 and the case-law cited), and of 15 July 2021, Ministrstvo za obrambo (C‑742/19, EU:C:2021:597, paragraph 40 and the case-law cited).

---

29      See judgment of 7 September 2023, Commission v Poland (C‑601/21, EU:C:2023:629, paragraph 80 and the case-law cited). See also, to that effect, by analogy, judgment of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 38 in fine and the case-law cited).

---

30      See the Opinion of Advocate General Jacobs in Commission v Greece (C‑120/94, EU:C:1995:109, point 67).

---

31      The concept of the security of the Union is referred to both in legislative acts (see, by way of example, Article 3(c) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1), and in the case-law of the Court. See, by way of example, judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 125). On the relationship between the security of the Union and national security, see the observations made by Advocate General Emiliou in point 62 of his Opinion in Commission v Poland (C‑601/21, EU:C:2023:151, point 62 and the case-law cited).

---

32      See, for example, in relation to public procurement, Council Decision (CFSP) 2022/578 of 8 April 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2022 L 111, p. 70).

---

33      See judgments of 9 January 2025, Česká republika – Generální finanční ředitelství (C‑578/23, EU:C:2025:4, paragraph 29 and the case-law cited), and of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras (C‑927/19, EU:C:2021:700, paragraph 115).

---

34      See, in relation to Directive 2014/24, judgment of 7 September 2023, Commission v Poland (C‑601/21, EU:C:2023:629, paragraph 70 and the case-law cited).

---

35      Namely – in essence – procurement contracts falling within the scope of Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (OJ 2009 L 216, p. 76).

---

36      On this point, see point 43 et seq. of the Opinion of Advocate General Emiliou in Commission v Poland (C‑601/21, EU:C:2023:151), which analyses in detail the conditions for the application of Article 15(2) of Directive 2014/24.

---

37      See judgment of 7 September 2023, Commission v Poland (C‑601/21, EU:C:2023:629, paragraph 78).

---

38      This was the situation regarding the procurement contracts at issue in the case giving rise to the judgement of 7 September 2023, Commission v Poland (C‑601/21, EU:C:2023:629).

---

39      On this point, see the Opinion of Advocate General Emiliou in Commission v Poland (C‑601/21, EU:C:2023:151, point 59).

---

40      As in the case of the example referred to in Article 15(2) of Directive 2014/24 and Article 24(2) of Directive 2014/25 in fine.

---

41      On this point, pursuant to the principle ‘qui potest plus, potest et minus’, it can be considered that if the legislature has determined that a particular procurement contract is so sensitive for reasons relating to the protection of essential national security interests that it may be entirely exempted from the competitive rules laid down in the directives, a fortiori, where a less drastic measure – such as excluding only certain aspects of that contract from the scope of those directives – is sufficient to achieve the objective of safeguarding those interests, it is in line with the legislature’s intention that such a measure may be adopted.

---

42      On this point, if a Member State were to apply a total exclusion where a partial exclusion would be appropriate and sufficient to safeguard its essential national security interests, that Member State would be in breach of the principle of proportionality.

---

43      If Member States were forced to choose only between ‘all’ (total exclusion) or ‘nothing’ (full application of the directive, with a potential threat to national security), this would entail the risk of Member States making excessive and unjustified use of the full exemption in order to avoid jeopardising their essential interests.

---

44      Therefore, although Article 15(2) of Directive 2014/24 and Article 24(2) of Directive 2014/25, read in the light of Article 4(2) TEU, afford the Member States discretion in deciding the measures considered to be necessary for the protection of their essential national security interests, those provisions cannot be construed as conferring on Member States the power to derogate from the provisions of the FEU Treaty simply by invoking those interests. See judgment of 7 September 2023, Commission v Poland (C‑601/21, EU:C:2023:629, paragraphs 81 and 82 and the case-law cited).

---

45      Although the procurement procedures at issue in the two sets of main proceedings fall within the scope of different directives (in Case C‑271/25, Directive 2014/24, and in Case C‑334/25, Directive 2014/25), by virtue of the reference in Article 80(1) of Directive 2014/25 to Article 57 of Directive 2014/24 as regards the grounds for excluding tenderers, the latter provision applies to both procedures.

---

46      See point 18 above.

---

47      On this point, see paragraph 40 of each of the orders for reference in both cases.

---

48      See point 25 above and the case-law cited.

---

49      See, by analogy, to that effect, judgment of 15 July 2021, Ministrstvo za obrambo (C‑742/19, EU:C:2021:597, paragraph 43 and, specifically, paragraph 77 et seq.).

---

50      See, by analogy, to that effect, judgment of 15 July 2021, Ministrstvo za obrambo (C‑742/19, EU:C:2021:597, paragraph 45).

---

51      Judgment of 15 September 2022, J. Sch. Omnibusunternehmen and K. Reisen (C‑416/21, EU:C:2022:689, paragraph 54 and also paragraph 56).

---

52      The Court has clarified that the optional grounds for exclusion laid down in Article 57(4) of Directive 2014/24 are based on the optimal selection of a tenderer of sound quality, on whom the contracting authority can rely for the performance of the public contract awarded. See judgment of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias (C‑66/22, ‘the judgment in Infraestruturas de Portugal’, EU:C:2023:1016, paragraph 56). See also, on this point, recital 101 of Directive 2014/24.

---

53      See judgment of 15 September 2022, J. Sch. Omnibusunternehmen and K. Reisen (C‑416/21, EU:C:2022:689, paragraphs 57 and 58).

---

54      Those fundamental principles governing procurement, which constitute general principles of EU law, derive, in the context of procurement, directly from the provisions of the Treaty relating to the free movement of goods, the freedom of establishment and the freedom to provide services. On this point, see recital 1 of Directive 2014/24.

---

55      In Case C‑334/25, read in conjunction with Article 80 of Directive 2014/25.

---

56      See references in points 9 and 12 above.

---

57      See, inter alia, most recently, judgment of 11 June 2026, IFIS NPL INVESTING (C‑65/25, EU:C:2026:475, paragraph 27 in fine).

---

58      See, to that effect, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraphs 78 and 79). On this point, see also, most recently, judgment of 16 July 2026, Bukla (C‑26/25, EU:C:2026:593, paragraph 105).

---

59      See, to that effect, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraphs 78 and 79).

---

60      See, to that effect, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 84). On this point, see also, most recently, judgment of 16 July 2026, Bukla (C‑26/25, EU:C:2026:593, paragraph 112).

---

61      See, to that effect, ibid., paragraphs 77 to 85.

---

62      See the judgment in Infraestruturas de Portugal, paragraphs 73 to 84 and in particular paragraphs 75 and 82. The Court therefore held that national legislation that linked the assessment of the integrity and reliability of tenderers to the findings in a decision of the national competition authority in relation to, in particular, future participation in public procurement procedures, undermined the discretion to be afforded to the contracting authority under that provision and was therefore contrary to it.

---

63      They are not based on the optimal selection of a qualitatively sound tenderer, on which the contracting authority can rely, but on the fact that the supplier or persons associated with it pose a significant security risk to the entire Member State. Consequently, as the assessment of risks to national security cannot be entrusted solely to the procuring authority, it is reasonable that the assessment of grounds for exclusion from a procurement procedure based on such risks should not be entrusted to it either.

---

64      See point 68 above.

---

65      See the judgment in Infraestruturas de Portugal, paragraphs 77 and 80 and the case-law cited.

---

66      See, to that effect, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 76).

---

67      Such as, for example, in the cases pending before the referring court, the possible termination of commercial ties or activities relating to hostile third countries.

---

68      See, inter alia, judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others (C‑159/21, EU:C:2022:708, paragraph 44).

---

69      See, to that effect, by analogy, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 89), and also judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others (C‑159/21, EU:C:2022:708, paragraph 45).

---

70      See judgments of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 90), and of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others (C‑159/21, EU:C:2022:708, paragraph 46).

---

71      See judgments of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 91), and of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others (C‑159/21, EU:C:2022:708, paragraph 47).

---

72      Judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 94).

---

73      See, to that effect, by analogy, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraphs 79, 80 and 87).

---

74      Judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 96).

---

75      See, to that effect, by analogy, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 97 and the case-law cited).

---

76      The referring court also refers to Articles 36 and 80 of Directive 2014/25 and Articles 56 and 57 of Directive 2014/24. However, as is clear from point 67 of the present Opinion, those provisions are not relevant for the purpose of answering the question referred.

---

77      As has already been stated, the same provision is also laid down in point 4 of Article 45(2¹) of the Law on Public Procurement.

---

78      That law aims to ensure that these types of ‘objects’ (businesses, plants and assets, as well as economic sectors) and the associated land, as well as the transactions of key players in cyber security, are protected from all risk factors that could pose a threat to national security. See, in more detail, the order for reference in Case C‑334/25, paragraph 45 et seq.

---

79      See the order for reference in Case C‑334/25, paragraphs 45 to 49.

---

80      See point 68 above.

---

81      See point 71 et seq. of the present Opinion.

---

82      See, inter alia, the judgment in Infraestruturas de Portugal, paragraph 87 and the case-law cited.

---

83      Judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras (C‑927/19, EU:C:2021:700, paragraph 120 and the case-law cited). According to the Court’s settled case-law, if the judicial review guaranteed by Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based. This makes it possible for him or her to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his or her applying to the court with jurisdiction, and also makes it possible to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question. See judgment of 29 July 2024, protectus (C‑185/23, EU:C:2024:657 paragraph 79 and the case-law cited).

---

84      See, to that effect, by analogy, judgment of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 57).

---

85      See points 98 and 103 above and the case-law cited.

---

86      See, to that effect, by analogy, judgment of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 64 in fine).

---

87      See, by analogy, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 95 and the case-law cited). On this point, see also, most recently, judgment of 16 July 2026, Bukla (C‑26/25, EU:C:2026:593, paragraph 109).

---

88      See, by analogy, judgment of 25 April 2024, NW and PQ (Classified information) (C‑420/22 and C‑528/22, EU:C:2024:344, paragraph 96 and the case-law cited).

---

89      See points 71, 72 and 83 above.

---

90      See, by analogy, paragraph 123 of the judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras (C‑927/19, EU:C:2021:700). That precedent, which has also been cited by the referring court, is, in my view, only partially relevant – however pertinent it may be – in cases such as those covered by the present Opinion. That judgment, in fact, concerned a different case involving the protection of confidential information disclosed by economic operators, whereas the present cases concern classified information relating to national security – and therefore information relating to the fundamental interests of the State – the disclosure of which would have a far more serious and widespread impact than the mere breach of commercial information concerning a single operator.

---

91      See the order for reference in Case C‑271/25, paragraph 52.

---

92      See the order for reference in Case C‑271/25, paragraph 53.

---

93      In its question, the referring court also refers to Directive 89/665. However, for the reasons set out in point 130 of the present Opinion, that directive is not relevant in the present context.

---

94      See, by analogy, judgments of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 58), and also of 29 July 2024, protectus (C‑185/23, EU:C:2024:657, paragraph 82).

---

95      See, to that effect, by analogy, judgments of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 59), and also of 29 July 2024, protectus (C‑185/23, EU:C:2024:657, paragraph 83).

---

96      See, to that effect, by analogy, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras (C‑927/19, EU:C:2021:700, paragraph 130 and the case-law cited).

---

97      See, by analogy, judgments of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 125), and of 29 July 2024, protectus (C‑185/23, EU:C:2024:657, paragraph 81).

---

98      See, by analogy, judgment of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraphs 55 and 56).

---

99      See, by analogy, judgment of 29 July 2024, protectus (C‑185/23, EU:C:2024:657, paragraph 86 and the case-law cited).

---

100      See, by analogy, judgments of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraphs 65 and 68), and of 29 July 2024, protectus (C‑185/23, EU:C:2024:657, paragraph 92).

---

101      See, by analogy, judgments of 4 June 2013, ZZ (C‑300/11, EU:C:2013:363, paragraph 66), and of 29 July 2024, protectus (C‑185/23, EU:C:2024:657, paragraph 90).

---

102      In its question, the referring court also refers to Directive 2014/25. However, for the reasons set out in point 67 of the present Opinion, that directive is not relevant in the present context.

---

103      See judgment of 5 June 2025, Veolia Water Technologies and Others (C‑82/24, EU:C:2025:396, paragraph 34 and the case-law cited).

---

104      See, among others, most recently, judgment of 16 April 2026, Sof Medica (C‑568/24, EU:C:2026:305, paragraph 44 and the case-law cited).

---

105      See, on this point, the Opinion of Advocate General Campos Sánchez-Bordona in Pizzo (C‑27/15, EU:C:2016:48, points 51 to 53 and the case-law cited).

---

106      See, to that effect, judgment of 2 May 2019, Lavorgna (C‑309/18, EU:C:2019:350, paragraph 28).