Heckler & Koch v. FN Herstal strategic partnership: suspension rejected — Article 346 TFEU correctly applied for light weapons systems
Heckler & Koch's extreme urgency suspension claim against the Defense Minister's and Council of Ministers' decisions of 26 April 2024 to award and conclude a multinational strategic partnership with FN Herstal for light weapons systems (approx. EUR 1.463 billion, 20 years) is rejected — the contracting authority prima facie demonstrates that all conditions for applying Article 346(1)(b) TFEU are met: the products are listed in List 255/58 of military equipment, the partnership does not alter competition for non-military products, it is necessary to protect essential security interests (DTIB, security of supply, strategic autonomy), and the objective cannot be achieved through less restrictive measures.
What happened?
The Belgian Ministry of Defense initiated a multinational strategic partnership with FN Herstal for light weapons systems, planned for twenty years, covering five components: patrimony maintenance, patrimony management, engineering/consulting/R&D, weapons rental, and ammunition supply. The contract was placed under Article 346(1)(b) TFEU and Article 25(1)(b) of the 2011 Defense Procurement Act, via negotiated procedure without publication, with only FN Herstal invited as the sole Belgian manufacturer of small-caliber weapons and ammunition. Budget inspectors and the State Secretary for Budget issued unfavorable opinions. The Council of Ministers approved on 17 November 2023. Heckler & Koch, a German weapons manufacturer that had expressed interest, filed a first suspension claim rejected by ruling No. 258,383 (10 January 2024). After further contract negotiations, on 26 April 2024 the Council of Ministers approved the award (EUR 1,463,187,000 incl. VAT) and the Minister took the motivated award decision, reserving the right to consider integrated police participation later. Heckler & Koch filed a second extreme urgency claim. FN Herstal intervened. The first plea (four branches) challenged the application of Article 346(1)(b) TFEU. Branches 1-2: products are on List 255/58 and intended for military purposes; the partnership does not alter competition for non-military products; no state aid (market-conform prices after thorough price verification). Not serious. Branch 3: essential security interests justified (national DTIB, security of supply, strategic autonomy); fear of export restrictions by other Member States not merely hypothetical (concrete examples including refusals to supply Ukraine, France refusing combat rations to Belgium). Not serious. Branch 4 (proportionality): objective cannot be achieved through less restrictive measures — supply security criteria under Directive 2009/81/EC do not address conflict/crisis situations; system approach requires single supplier; 20-year duration justified by investment depreciation. Not serious. New plea in pleading note (integrated police participation — Article 24 Public Procurement Act 2016): inadmissible — applicant fails to show this could not have been raised earlier; moreover, examination would disproportionately restrict respondent's and intervener's right of defense. Claim rejected.
Why does this matter?
This ruling provides one of the most detailed Council of State analyses of Article 346(1)(b) TFEU application in defense procurement. It clarifies the four cumulative conditions: products must be on List 255/58 (read with the annual EU Common Military List); measures must not alter competition for non-military products; essential security interests must require protection with a link to the measure; and the objective must not be achievable through less restrictive means (proportionality). The ruling confirms Member States' broad discretionary power in assessing essential security interests, and that secondary economic effects are permissible provided the measure primarily serves security interests.
The lesson
As contracting authority invoking Article 346(1)(b) TFEU: motivate each application condition separately — confirm products are on List 255/58, competition for non-military products is unaffected, essential security interests exist with a concrete link to the measure, and less restrictive measures cannot achieve the objective. Support the necessity with concrete elements (geopolitical context, export restrictions, DTIB documentation). Conduct thorough price verification to counter state aid arguments. As competitor challenging a defense procurement under Article 346 TFEU: recognize the broad discretionary power of Member States. Concretely demonstrate that specific products are not listed, that the measure alters competition for non-military products, or that less restrictive measures are available. Raise new pleas timely — a plea submitted only the day before the hearing risks being declared inadmissible.
Ask yourself
As contracting authority invoking Article 346 TFEU: did I separately motivate each of the four application conditions? Are the products on List 255/58? Did I demonstrate the measure does not alter competition for non-military products? Did I concretely substantiate the link between essential security interests and the partnership? Did I examine whether less restrictive measures could achieve the objective? As competitor: do I have concrete elements showing the conditions are not met?
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 →