Recital (98)

In light of the increased deterioration in the Union’s security context, linked to Russia’s persistent and intensified threat in the context of its war of aggression against Ukraine, it is crucial to address the difficulties that Member States might face in the placing of an order or in the execution of a contract related to the supply of defence products, in particular where such difficulties result from disruptions in the provision of crisis-relevant products which are not defence products. Indeed, where crisis-relevant products are dual-use or civilian products, defence supply chains can face competition from non-defence supply chains with a significantly stronger buying power when trying to access those crisis-relevant products. It is therefore necessary to provide for an additional instrument of last resort, in cases where the production or supply of such crisis-relevant products which are not defence products cannot be achieved by any other measure, including a priority-rated request. Therefore, priority-rated orders should enable the Commission to oblige economic operators established in the Union to produce or supply certain crisis-relevant products which are not defence products after receiving the prior agreement of the Member State on whose territory the production site of the economic operator concerned is located and of the Member State on whose territory the executive management structure of the economic operator is located. The Commission should not issue priority-rated orders where the economic operator is unable to fulfil the order even if prioritised, be it due to insufficient production capability or production capacity or on technical grounds, or because it would place an unreasonable economic burden on and entail particular hardship for the economic operator, including substantial risk relating to business continuity. Where such reasons arise after the Commission has adopted an implementing act subjecting an economic operator to any priority-rated order or request, that economic operator should be able to request the Commission to modify the implementing act concerned.