Article 3 — Definitions
In brief
This article provides the definitions used throughout the Regulation. It fixes the meaning of central concepts including R&D procurement, pre-commercial procurement, public buyer, innovation agency, economic operator, and results. It also defines terms specific to the R&D context, such as multiple sourcing, value engineering and its related clauses, and functional, performance and design requirements, and it cross-refers to existing EU instruments for terms such as SME, innovative enterprises, critical technologies and critical raw materials.
Key points
- Defines R&D procurement as covering fundamental research, industrial research and experimental development up to original development, while excluding quantity production for commercial viability.
- Defines pre-commercial procurement as R&D services involving risk-benefit sharing under market conditions and competitive development in phases.
- Anchors the meaning of public buyer, innovation agency, tenderer, contractor and economic operator by reference to the procurement directives and to market activity.
- Defines results broadly to include tangible and intangible outcomes and attached rights, including intellectual property rights.
- Introduces value engineering, value engineering change proposals and value engineering clauses, and distinguishes functional, performance and design requirements.
- Relies on external instruments for SME, innovative startup, scaleup and enterprise, critical technologies, critical raw materials and CPV codes.
What it means in practice
These definitions determine who and what the Regulation covers. Public buyers, tenderers and contractors should read the operative articles against this vocabulary, because a term such as results or value engineering carries a defined meaning that shapes rights and obligations. Several definitions borrow from separate EU recommendations and regulations, so their content is set by those instruments rather than restated in full here.
Official text — Article 3 (COM(2026) 567)
For the purposes of this Regulation, the following definitions shall apply:
(1) ‘procurement of research and development services (‘R&D procurement’)
means the procurement of fundamental research, industrial research and
experimental development up to original development, where
(a) original development of a first product, service or work may include limited
production or supply in order to incorporate the results of field testing and to
demonstrate that the product, service or work concerned is suitable for
production or supply in quantity to acceptable quality standards, but shall not
include quantity production or supply to establish commercial viability or to
recover research and development costs.
(b) procurement of research and development services may include obtaining the
ownership of prototypes or first products, services or works that are developed
at the public buyer’s request in the course of and for a particular R&D
procurement contract, but shall not include the commercial deployment of end -
products, services or works;
(2) ‘pre-commercial procurement means the procurement of research and
development services that involves risk -benefit sharing under market conditions, and
competitive development in phases.
(3) ‘public buyer’ means a contracting authority as defined in Article 6(1) of Directive
2014/23/EU, in Article 2(1), point (1), of Directive 2014/24/EU, in Article 3(1) of
Directive 2014/25/EU, or a contracting entity as defined in Article 7(1) of Directive
2014/23/EU and within the meaning of Article 4(1)of Directive (EU) 2014/25;
(4) ‘innovation agency’ means a specialised agency whose principal statutory task is the
financing or procurement of research and development;
(5) ‘R&D procurement contract ’ means a contract concluded in writing between one
or more economic operators and one or more public buyers and having as its subject -
matter the provision of research and development services falling within the scope of
this Regulation;
(6) ‘tenderer’ means an economic operator that has submitted a tender;
(7) ‘contractor’ means an economic operator that has been awarded an R&D
procurement contract;
(8) ‘CPV codes for research and development services’ means the c odes under
Division 73 of the Common Procurement Vocabulary laid down by Commission
Regulation (EC) No 213/200822.
22 Commission Regulation (EU) 213/2008 of 28 November 2007 amending Regulation (EC) No
2195/2002 of the Europe an Parliament and of the Council on the Common Procurement Vocabulary (CPV) and
Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement
procedures, as regards the revision of the CPV (O L 74, 15.3.2008, pp. 1,
ELI: http://data.europa.eu/eli/reg/2008/213/oj).
(9) ‘economic operator’ means any natural or legal person, or public entity or group of
such persons and/or entities, including any temporary association of undertakings,
which offers the execution of works and/or a work, the supply of products or the
provision of services on the market;
(10) ‘procurement document ’ means any document produced or referred to by the
public buyer to describe or determine elements of the procurement or the procedure,
including the contract notice, the prior information notice where it is used as a means
of calling for competition, the technical specifications, the descriptive document,
proposed conditions of contract, formats for the presentation of documents by
tenderers, information on generally applicable obligations and any additional
documents;;
(11) ‘multiple sourcing ’ means an R&D procurement whereby one or more public
buyers award multiple R&D procurement contracts in parallel to multiple economic
operators and entrust them with the execution of identical or quasi -identical R&D
services to be performed in parallel;
(12) ‘minor informality or irregularity of a tender’ means an objectively identifiable
defect in a tender that is purely formal in nature and does not concern an essent ial
element of the tender, the correction or clarification of which does not result in a
modification of the tender, does not amount to the submission of a new tender, and
does not distort competition or infringe the principles of equal treatment and
transparency;
(13) ‘innovation’ means the implementation of a new or significantly improved product,
service, work or process, marketing method, or organisational method in business
practices, workplace organisation or external relations;
(14) ‘SME’ means a mic ro, small or medium -sized enterprise as defined in the Annex to
Commission Recommendation 2003/361/EC23;
(15) ‘innovative startup’ means, for the purposes of this Act and without making such
definition binding for other purposes, an enterprise that fulfils the criteria of an
innovative startup set out in point 3 of the Annex to Commission Recommendation
(EU) 2026/72024;
(16) ‘innovative scaleup’ means, for the purposes of this Act and without making such
definition binding for ot her purposes, an enterprise that fulfils the criteria of an
innovative scaleup set out in point 4 of the Annex to Commission Recommendation
(EU) 2026/720;
(17) ‘innovative enterprise’ means, for the purposes of this Act and without making such
definition b inding for other purposes, an enterprise that fulfils the criteria of an
innovative enterprise set out in point 2.1 of the Annex to Commission
Recommendation (EU) 2026/720;
(18) ‘emergency situation ’ means a sudden, unexpected, and severe disruption to
economic operations, involving shortages of critical products, works or services,
23 Commission Recommendation of 6 May 2003 concerning the definition of micro, small and m edium-
sized enterprises (OJ L 124, 20.5.2003, p. 36, ELI: http://data.europa.eu/eli/reco/2003/361/oj).
24 Commission Recommendation (EU) 2026/720 of 18 March 2026 on the definition of innovative
enterprises, innovative startups and innovative scaleups, (OJ L, 2026/720, 24.03.2026, ELI:
http://data.europa.eu/eli/reco/2026/720/oj).
extreme price volatility, or supply chain breakdowns that necessitates immediate
action to prevent further harm to the economy, businesses, or consumers in the
Union;
(19) ‘functional requirement ’ means a requirement that describes the functions to be
performed, without prescribing the specific technical means, design, solution or
methods by which those functions are to be achieved;
(20) ‘performance requirement ’ means a require ment that defines the performance or
outcomes to be achieved, including criteria for verifying compliance, without
prescribing the specific technical means, design, solution or methods by which those
outcomes are to be achieved;
(21) ‘design requirement ’ means a requirement that defines in detail technical
characteristics that prescribe how the products, services or works that are developed
at the public buyer’s request in the course of and for a particular R&D procurement
contract shall be designed, including materials, dimensions, and solutions, methods
or processes that are to be used;
(22) ‘results’ means any tangible or intangible outcomes of research, development and
innovation activities, such as data, knowledge or knowhow, whatever it s form or
nature, whether or not it can be protected, as well as any rights attached to such
outcomes, including intellectual property rights, that are generated, in whole or in
part, through activities performed under the R&D procurement contract;
(23) ‘value engineering’ means a technique used by public buyers to require or allow
contractors to innovate during the performance of R&D procurement contract to
create additional value for the public buyer that improves the performance, quality,
cost or charac teristics of the awarded research and development services and any
prototypes, first products, services or works that are developed in the course of and
for a particular R&D procurement contract, and to share any agreed resulting savings
between the public buyer and the contractor;
(24) ‘value engineering change proposal ’ means a proposal submitted by contractors
during the performance of the R&D procurement contract to improve the awarded
research and development services and any prototypes, first goods, services or works
that are developed in the course of and for a particular R&D procurement contract or
to replace those research and development services or prototypes, first goods,
services or works by others that incorporate technological advances or inn ovations,
and which may involve replacing or adding a new consortium partner or
subcontractor;
(25) ‘value engineering clause’ means a contract clause in an R&D procurement contract
that defines the rights and oblig30ations of the buyer, contractors and su bcontractors
regarding how value engineering shall be applied under that contract;
(26) ‘critical technologies’ means the technologies in the critical technology areas listed
in the Annex to Commission Recommendation (EU) 2023/211325;
(27) ‘critical raw ma terial’ means a raw material listed in Annex II to Regulation (EU)
2024/1252 of the European Parliament and of the Council26;
25 Commission Recommendation (EU) 2023/2113 of 3 October 2023 on critical technology areas for the
EU’s economic security for further risk assessment with Member States (OJ L, 2023/2 113, 11.10.2023,
ELI: http://data.europa.eu/eli/reco/2023/2113/oj)
(28) ‘public and private entities in the fields of finance and insurance’ means public
authorities, public sector bodies, public u ndertakings and other natural or legal
persons active in the provision, financing, regulation, supervision or intermediation
of financial services, as defined in of Article 2, point (120 of Directive 2011/83/EU
of the European Parliament and of the Council27.
Chapter 2
PROCUREMENT OF RESEARCH AND DEVELOPMENT
SERVICES
SECTION 1
R&D PROCUREMENT PROCEDURE AND CONTRACT PERFORMANCE
Source: European Commission, proposal for a Regulation establishing the European Innovation Act, COM(2026) 567 final, 9 September 2026. Read the official proposal (PDF). Text may change during the legislative process.
Anthony Bochon’s analysis
Definitions are never neutral, and this article is the load-bearing wall of the whole text. In my view the most consequential choices are the boundary drawn around R&D procurement — permitting limited first-of-a-kind production but stopping short of quantity supply or recovering development costs — and the codification of pre-commercial procurement as risk-benefit sharing under market conditions with competitive development in phases. That line between developmental and commercial deployment is precisely where State aid and competition concerns have historically arisen, and I read it as a deliberate attempt to keep these contracts inside a defensible, market-conform frame.
I also note the imported definitions of innovative startup, scaleup and enterprise and the concepts of value engineering and results, which reach directly into intellectual property. What addressees should anticipate is that any drift in these definitions during negotiation will ripple through every operative provision, so I would follow the Council’s edits here more closely than anywhere else.