Additional legal bases für notice type 38 (contract modification)

[RolfKewitz]

There is also a need for notices on TED of contract modifications in the area of defence and security.
This is explicitly foreseen in article 18(5) of Regulation (EU) 2025/1106 (SAFE) of 27 May 2025 and in Article 34(5) of the draft EDIP Regulation. There is also a need in the area of 2009/81/EG.

Therefore notice type 38 (contract modification) should also be applicable for directive 2009/81/EG as well as (EU) 2025/1106 (SAFE) and in the foreseeable future for the EDIP regulation. (As the notices of these contract modifications are mandatory, a voluntary form such as E6 should not be used here.)

For this purpose, the following codes should be included in the code list ‘Legal basis’:

• '(EU) 2025/1106 (SAFE)'
• 'EDIP'

In addition, the following codes should be included in the code list “legal-basis_legal-basis-38” (used by BT-01 in notice type 38):

• '(EU) 2025/1106 (SAFE)'
• 'EDIP'
• '2009/81/EG'

[ferrakaop]

At this stage, we are not thinking about adding a new legal basis (for BT-01) as the procurement will still be carried out under directive 2009/81 so we'll see what other changes are needed beyond just mentioning SAFE or EDIP in the text that is required with every contract modification justification. Form E6 could perhaps also no longer be considered as "voluntary" but we can still use the same subtype as it was primarily created to satisfy the needs of 2009/81 procedures.

These new defence regulations will be discussed at the next eForms workshop. We'll be able to move this discussion to the GitLab issue.

[RolfKewitz]

Should BT-01 include the legal basis of the underlying procurement procedure or the form used?
The legal basis for the procedure may be 2009/81/EC. But the legal basis of a contract modification in this area would be EDIP or SAFE. Up to now 2009/81/EC does not mention a contract modification at all.

[julemari]

Whilst it is true that “contract modification” is not mentioned in Directive 2009/81, through the SAFE Regulation, this possibility was now introduced for procedures under Directive 2009/81. However, the legal base for the procedure will not change, as the procedure will still take place under Directive 2009/81. SAFE only introduces contract modifications for such procedures.

Therefore, the only envisaged changed based on the adoption of the SAFE Regulation is that Directive 2009/81 will be added to the list of legal bases for Notice subtype 38. “SAFE” itself will not be added as a legal basis to the code list.

Any further or more significant changes would only be carried out under the 3rd amendment.