12 Nuctech customs scanners have been running for years — but for the 5 new ones, Chinese ownership was suddenly a security risk, and the Council sided with customs
The Council refuses the suspension of the award to Rapiscan Systems for mobile X-ray scanners for the Belgian customs (port of Antwerp and the entire Belgian territory) — Nuctech Warsaw, Polish-law subsidiary of the Chinese state-owned Nuctech group, was not even invited under article 33 §2 of the Procurement Act 2016 ('essential security interests of the realm'), supported by a confidential profile analysis from the State Security Service on the Chinese national intelligence law of 2017 and ties to Tsinghua University.
What happened?
February 2021: Belgian media and parliamentary questions (Vermeersch, Freilich) put pressure on Belgian customs over its 12 Nuctech scanners — Nuctech is Chinese state-owned. The Minister of Finance reassured: stand-alone use, no transmission sources found, no security risk identified, ongoing dialogue with State Security. September 2021: State Security delivers a confidential profile analysis of Nuctech to the Federal Public Service Finance. The position hardens. 11 March 2022: the Council of Ministers decides to launch two contracts via 'negotiated procedure without prior publication'. 14 March 2022: the minister approves tender document S&L/DA/2021/088 for 'supply, commissioning and maintenance of mobile X-ray scanners' — minimum 5 units, option for 4 more, initially for the port of Antwerp. The legal key sits in section B.1 of the tender: the procedure is removed from the 17/06/2016 Act under article 33 §2, which 'for reasons of essential security interests of the realm' allows the procedure to be conducted outside the Act. Reason: 'it is essential that information from goods screening can in no way be shared with parties that could misuse it. This risk can only be avoided if the contracting authority can address only absolutely reliable economic operators.' For amounts above the European threshold the 2016 Act does not allow a 'limited track' (invitation only) — hence the recourse to article 33 §2. Two suppliers were invited. The contract went to Rapiscan Systems Limited (English law). Nuctech Warsaw — Polish-law subsidiary — got no invitation. Nuctech Warsaw filed extreme urgency proceedings with two grounds: violation of article 33 §2 + Directive 2014/24 (first ground) and violation of articles 34/36 TFEU on free movement of goods (second ground). The Council, in a three-member chamber chaired by Paul Lemmens, rejected systematically. On article 33 §2: the concept of 'essential security interests' is interpreted in line with CJEU C-601/21 Commission v Poland — protection of the highest interests of the state. The contracting authority enjoys broad discretion that may evolve over time. The fact that customs still used 12 Nuctech scanners in 2021 is no obstacle: the new equipment will no longer be used 'stand-alone' but integrated into a broader FPS Finance network — fundamentally changing the risk profile. On the factual basis: the Council was able to consult the State Security profile analysis and finds it 'does contain elements supporting the risk assessment'. Specifically: Nuctech founded within Tsinghua University (high security risk, defence research, alleged cyberattacks); under Chinese state control; subject to the Chinese national intelligence law of 27 June 2017 (obligation to participate in intelligence activities, secrecy, dedicated relationships with Chinese intelligence officers). Notable detail: Nuctech in its application 'said not a word' about its Chinese ties. Only at the hearing did the topic come up. Even Nuctech being incorporated under Polish law (EU member state) is 'of less or even no importance' given Chinese state control. On the TFEU ground: the Council accepts that non-invitation qualifies as a measure equivalent to a quantitative import restriction (art. 34 TFEU). But the justification under art. 36 TFEU ('protection of public security') stands. Outcome: extreme urgency suspension rejected. Nuctech pays €994 in costs.
Why does this matter?
This judgment confirms for the first time explicitly that a contracting authority can invoke article 33 §2 of the Procurement Act 2016 to exclude a specific supplier in advance — not only to remove the procedure from the Act, but also to base the invitation decision on geopolitical and security considerations. For the tender market this has far-reaching consequences: in sectors with a security dimension (defence, customs, energy, telecom, AI, cybersecurity, critical infrastructure), companies with ties to third countries (China, Russia, Iran, etc.) can be systematically excluded without classical transparency and competition principles changing that. The bar to challenge this is extremely high: the authority only needs to present a credible security assessment (typically a State Security report), the Council rules prima facie and does not examine the profile analysis on the merits.
The lesson
If you suspect a contract will pass you by under article 33 §2 of the Procurement Act 2016: immediately request the publication decision (or the tender), check whether the motivation actually refers to 'essential security interests' and not to ordinary economic motives, and build your ground on TWO pillars: (1) factual: contest the credibility of the security assessment — table all your certifications, audits, governance documents, legal opinions on the inapplicability of foreign intelligence laws; (2) legal: argue that less restrictive measures were possible (technical monitoring, audit clauses, data geo-fencing, local storage, etc.). Do NOT stay silent on the ties the authority sees as risk — that stands out and is used against you.
Ask yourself
If you work for a company with foreign shareholders, particularly from countries seen as 'systemic risk' in Western security analyses (China, Russia, Iran): can you give, for each current public contract you are bidding on, a concrete answer to the question 'which foreign intelligence legislation applies to our parent and how is it ensured that it does not extend to our Belgian/EU operations?' No answer = direct risk factor in any sector with a security dimension.
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →