Article 11 — Conditions for access to R&D procurement procedures and place of performance
In brief
This Article governs which economic operators may take part in R&D procurement and where the activities must be carried out. As a rule, participation is open to operators originating in Member States and in countries that have concluded an international agreement with the Union covering R&D procurement. It provides derogations linked to security and public safety, rules on subcontracting, a place-of-performance requirement, and a Commission tool listing the Union’s procurement commitments.
Key points
- Access is limited to operators from Member States and from agreement countries whose commitments cover R&D procurement; the Commission may exclude a third country by delegated act on defined grounds.
- For security or public safety reasons, buyers may restrict participation to Member State operators not under third-country control, and may apply place-of-performance and subcontracting limits.
- Where listed-country operators cannot supply the services, none suitable were offered, or costs would be disproportionate, access may be opened more widely; a cost difference above 20% may be presumed disproportionate.
- Unless contrary to security interests, contractors must perform at least 50% of the R&D activities in the eligible countries, including the work of principal R&D staff.
- The Commission will provide a free online tool setting out the Union’s procurement commitments, which buyers use to determine eligible countries and applicable thresholds.
What it means in practice
Contracting authorities must verify the origin of bidders and their subcontractors and decide, on justified grounds, whether to apply the security-related restrictions and place-of-performance conditions. Innovative firms, start-ups and SMEs need to confirm that they, their supporting entities and their subcontractors meet the origin rules, and to plan for carrying out at least half of the R&D work in eligible countries. Operators that fail, without reasonable explanation, to provide information allowing verification of the place of performance can be excluded from the procedure.
Official text — Article 11 (COM(2026) 567)
requirements
1. Public buyers shall open the participation in R&D procurement only to:
(a) economic operators having their origin in Member States;
(b) economic operators having their origin in countries that have concluded an
international agreement with the Union, provided that R&D procurement falls
within the scope of the Union’s public procurement commitments in that
agreement.
2. The Commission is empowered to adopt delegated acts in accordance with Article 39
to supplement this Regulation by excluding, in whole or in part, subject to the
Union’s international obligations, a third country from the scope of paragraph 1,
point (b) based on any of the following criteria:
(a) that th ird country has failed to provide national treatment related to Union
R&D services or entities under the agreements referred to in paragraph 1, first
subparagraph, point (b);
(b) such exclusion is justified to avoid dependencies or any other developments
that may threaten the security of supply in the Union of the relevant products,
works or services in question;
(c) such restriction is justified under any other exception under the applicable
agreement.
3. By way of derogation from paragraph 1 of this Arti cle, where necessary and justified
for ensuring the protection of the security interests of the Union or one or several of
its Member States within the meaning of article 28(2) , public buyers may restrict
participation in R&D procurement only to economic operators that have their origin
in Member States and that are not subject to control of a third country or of a legal
entity that is subject to control of a third country.
4. By way of derogation from paragraph 1 point (b), public buyers may open the access
to the R&D procurement also only to economic operators that have their origin in
countries that have concluded an international agreement with the Union in which
the Union h as made public procurement commitments but not for R&D
procurements, only in one of the following cases where:
(d) through a market research that includes an extensive, widely disseminated
market consultation, the public buyer can determine that the requ ired R&D
services cannot be provided by economic operators in the countries listed in
paragraph 1, and no reasonable alternative or substitute exists;
(e) no suitable tenders or requests to participate have been submitted, including in
response to a simila r R&D procurement procedure launched by any public
buyer in the countries listed in paragraph 1 in the two years preceding the
launch of the planned new R&D procurement procedure; or
(f) limiting the access to the R&D procurement procedures in accordance w ith
paragraph 1 would entail that the public buyer would have to procure the R&D
services at disproportionate costs.
For the purposes of the first subparagraph, point (b), an estimated difference of more
than 20 % between the estimated cost of an offer fr om an economic operator having
their origin in a country referred to in paragraph 1 and that from an economic
operator having their origin in a country that has concluded an international
agreement with the Union in which the Union has made public procurem ent
commitments but not for R&D procurements on the basis of on objective and
transparent data, may be presumed by public buyers to be disproportionate.
5. Subcontracting shall not be used with the intent or effect to circumvent the rules on
access to R&D procurement. The conditions for access to R&D procurement shall
not apply to entities on whose capacity the tenderer relies or to subcontractors, unless
public buyers limit subcontracting:
(a) where paragraph 1 or 4 applies, to subcontractors that have their origin in the
countries listed in paragraph 1; or
(b) where paragraph 3 applies and where necessary and justified for ensuring the
protection of the sec urity and public safety interests of the Union or one or
several of its Member State within the meaning of Article 28(2), to
subcontractors that have their origin in Member States and that are not subject
to control of a third country or of a legal entity that is subject to control of a
third country.
6. Where paragraph 4 applies, public buyers may reserve a number of R&D
procurement contracts within the same R&D procurement procedure:
(a) for economic operators that have their origin in the countries re ferred to in
paragraph 1, first subparagraph points (a) and (b); or
(b) where necessary and justified for protecting the security or public safety
interests of the Union or one or several of its Member States within the
meaning of article 28(2), for econom ic operators that have their origin in
Member States and that are not subject to control of a third country or of a
legal entity that is subject to control of a third country.
7. Unless contrary to security or public safety interest of the Union or one or several of
its Member States within the meaning of Article 28(2) for reasons justified in the
procurement documents, public buyers shall require that contractors perform at least
50% of the research and development activities under the R&D procurement con tract
in the countries referred to in paragraph 1, including the work of principal research
and development staff with scientific responsibility for the R&D procurement
contract.
8. Where necessary and justified for protecting the security or public safet y interests of
the Union or one or several of its Member States within the meaning of Article 28(2),
public buyers may require, in addition to the measure in paragraph 7 of this Article,
contractors to perform all research and development activities relati ng to new
security components of the intended results in the Union, including the work of
principal research and development staff with scientific responsibility for the R&D
procurement contract.
9. Where an economic operator fails to provide information or documentation requested
by the public buyer related to the verification of the place of performance conditions
referred in paragraphs 7 and 8 without any reasonable explanation and thereby
prevents the verification of the economic operator’s compliance w ith the place of
performance conditions by public buyers or makes such a verification practically
impossible or very difficult, that economic operator shall be excluded from
participation in the R&D procurement procedure.
10. In addition to, or by derogati on from any rules set out under this Regulation,
including or by derogation from the list of countries referred to in paragraph 1 and
paragraph 4, for the award and execution of R&D procurement contracts supported
by a Union programme or instrument, public buyers shall apply any conditions
necessary to comply with requirements for Union support in all management modes
established in Article 62 of Regulation (EU, EURATOM) 2024/250929.
11. The Commission shall establish and make available free of charge a publicly
accessible online tool, which sets out, in a comprehensive and up-to-date manner, the
Union’s public procurement commitments, including the R&D procurement
commitments, in international agreements.
Public buyers shall determine, for the purposes of a given R&D procurement
procedure, the countries referred to in paragraph 1, point (b), and paragraph 4 on the
basis of the applicable international agreements as reflected in the online tool
referred to in subparagraph 1 of this paragraph.
12. Public buyers shall determine, for the purposes of a given procurement procedure, on
the basis of the applicable international agreements as reflected in the online tool
referred to in paragraph 1 for the parameters entered, including the public buyer
concerned, the subject -matter and the estimated value of the contract in relation to
the applicable thresholds.
13. Public buyers shall:
(a) restrict participation in R&D procurement procedures in the case of groups of
economic operators referred to in Article 6, to groups which are composed
solely of economic operators having their origin in countries referred to in
paragraphs 1 to 4 in this Article;
(b) reject a tender in the course of a R&D procurem ent procedure where it is not
submitted by economic operators having their origin in countries referred to in
paragraphs 1 to 4 in this Article or groups thereof as referred to in point (a).
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
Here the Regulation moves squarely onto the terrain of economic security and European preference, and this is the provision I would flag first to any client with a non-EU footprint in its ownership or supply chain. Access is confined to operators originating in Member States or in countries bound by relevant Union procurement commitments, with a battery of derogations, a place-of-performance rule requiring at least 50% of the R&D activities to be carried out in eligible countries, and anti-circumvention discipline on subcontracting — the whole set clearly informed by the same anxieties that produced the Foreign Subsidies Regulation and the International Procurement Instrument.
My reading is that the most litigable feature is the interface with the Union’s international obligations, the WTO Government Procurement Agreement in particular; the delegated-act power in paragraph 2 and the 20% presumption of disproportionate cost in paragraph 4 give buyers real discretion, and discretion of that kind invites challenge. The promised free online tool mapping the Union’s commitments is welcome, because without a single authoritative source the origin assessment risks becoming inconsistent from one buyer to the next, and I would expect Parliament and Council to sharpen both the reciprocity criteria and the safeguards against arbitrary exclusion.