As one of the last bastions of purely national competence, trade in arms is excluded from the application of the Treaty rules. Article 346 TFEU provides that the Treaties do not preclude Member States to trade and procure war material for the protection of the essential interests of its security. Nonetheless, this provision is strictly interpreted by the Court and the case discussed here exemplifies that only goods intended for specifically military purposes qualify for the exemption under article 346 TFEU. But what exactly is equipment intended for specifically military purposes?
At issue in case C-615/10 Ins Tiimi is the procurement of the Finnish defense authorities of tiltable turntable equipment. This equipment is used to facilitate the ‘carrying-out of electromagnetic measurements and the simulation of combat situations’. As such it was argued by the Finnish authorities that it was procured for military purposes. Ins Tiimi, a company which lost the tender, did not agree, claiming that the equipment could be used for civilian uses as well. Whether or not the tiltable turntable equipment qualified for the exemption was important because otherwise the procurement procedure had to comply with the public procurement directive (directive 2004/18/EC).
There are essentially two conditions that Member States have to fulfill in order to escape the application of EU law according to article 346 TFEU when procuring military material:
- The measures relating to military procurement must concern ‘arms, munitions and war material’;
- And secondly, those measures must be necessary for the protection of the essential interests of the security of that Member State.