AUSTRIA Law and Practice Contributed by: Martin Schiefer and Christian Richter-Schöller, Schiefer Rechtsanwälte GmbH
vernehmen ) requirements, most visibly in war material licensing. 1.3 Definition of “Defence” and “Dual-Use” “War material” ( Kriegsmaterial ) is defined by the War Material Regulation issued under the War Material Act and covers weapons, munitions and equipment specifically designed or adapted for combat use. It triggers the strictest licensing regime. Military or defence goods in the broader sense are defined under the Foreign Trade Act 2011 by refer - ence to the EU Common Military List and include defence-related products within the meaning of Direc - tive 2009/43/EC (the “Transfers Directive”). For pro - curement purposes, the Federal Procurement Act for Defence and Security 2012 refers to military equip - ment on the basis of the Council list of 1958 read together with the Common Military List. Dual-use items are defined by Article 2 of the EU Dual- Use Regulation as items, including software and tech - nology, that can be used for both civil and military purposes; the control list is Annex I of that Regulation. The practical consequence of the layered definitions is that war material falls under the War Material Act, other military goods under the Foreign Trade Act 2011, and dual-use items under the directly applicable EU Regulation as supplemented by national provisions. 1.4 International Frameworks and Treaty Obligations EU law is the dominant layer, more specifically: • the Defence Procurement Directive; • the Transfers Directive on intra-EU transfers; • the EU Dual-Use Regulation; and • Common Foreign and Security Policy (CFSP) sanc - tions regulations, which apply directly or through implementing statutes. Austria is not a NATO member due to its permanent neutrality, but it has participated in the Partnership for Peace since 1995 and takes part in the EU’s Common Security and Defence Policy, in PESCO projects and in the European Defence Agency. Since 2023, Austria has participated in the European Sky Shield Initiative
for joint air defence procurement, framed by the gov - ernment as compatible with neutrality. UN Security Council resolutions, including arms embargoes, are implemented through EU law and the Sanctions Act 2024. Austria ratified the Arms Trade Treaty in 2014, is a founding participant of the Was - senaar Arrangement, whose secretariat is seated in Vienna, and participates in the Missile Technology Control Regime, the Australia Group, the Nuclear Suppliers Group and the Zangger Committee. Austria also has a strong humanitarian arms control profile, including the Anti-Personnel Mine Ban Convention, the Convention on Cluster Munitions and the Treaty on the Prohibition of Nuclear Weapons, of which Austria was a driving force. 2. Procurement and Government Contracts in the Defence Sector 2.1 Defence Procurement Legislation Austria has a bespoke defence procurement regime: the Federal Procurement Act for Defence and Security 2012 implements the Defence Procurement Directive and governs contracts for military equipment, sensi - tive equipment and related works and services, as well as works and services for specifically military pur - poses or involving classified information. The Federal Procurement Act 2018 remains the general framework and applies to non-sensitive purchases by defence authorities. The exemptions mirror those of the Directive: the “essential security interests” carve-out of Article 346 of the Treaty on the Functioning of the European Union (TFEU); contracts governed by international rules; government-to-government contracts; contracts for intelligence activities; contracts awarded in third coun - tries during deployments; and certain research and development services. In line with the case law of the CJEU, exemptions are interpreted narrowly and the burden of justification lies with the contracting author - ity. Below the EU thresholds, a lighter national regime within the Federal Procurement Act for Defence and Security 2012 applies.
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