Council of State rejects annulment appeal against 20-year defence partnership with FN Herstal – Article 346 TFEU validly invoked
The Council of State rejected Heckler & Koch's annulment appeal against the 20-year strategic partnership between Defence and FN Herstal for light weapons systems, finding that the minister lawfully invoked Article 346 TFEU and that H&K moreover failed to demonstrate it could perform all five components of the contract.
What happened?
The Belgian Minister of Defence concluded a 20-year strategic partnership with FN Herstal worth €1.46 billion through a negotiated procedure without prior publication. The contract covers five components: maintenance and upkeep of light weapons systems, asset management, engineering and R&D, weapon rental, and ammunition supply. The minister invoked Article 346 TFEU (protection of essential security interests) and Article 25 of the Act of 13 August 2011 to consult only FN Herstal. Heckler & Koch, a German weapons manufacturer, challenged both the Council of Ministers' authorisation and the award decision. The inspectors-general of Finance had previously issued negative opinions and the State Secretary for Budget refused budgetary approval, but the Council of Ministers approved the contract nonetheless.
Why does this matter?
This is the first ruling in which the Council of State conducts an extensive review of whether a defence contract may be excluded from competition under Article 346 TFEU. The Council accepts that building a Defence Technological and Industrial Base (DTIB) constitutes an essential security interest, that security of supply poses a genuine risk — citing concrete examples of export bans by other EU member states — and that a systems approach combining five integrated components can justify a single-supplier award. At the same time, the Council confirms that the proportionality test remains strict: the minister had to demonstrate that the standard defence directive (2009/81/EC) and the transfer directive (2009/43/EC) were insufficient.
The lesson
Article 346 TFEU is not a blank cheque: anyone invoking it must concretely demonstrate that essential security interests are at stake, that the standard defence directives offer insufficient protection, and that the chosen procedure is proportionate to the aim pursued. Conversely, a competitor seeking to challenge such an award must prove it can perform the entire contract — it is not enough to be able to deliver only part of the required services.
Ask yourself
Am I using Article 346 TFEU as a well-founded instrument to protect a genuine security interest, or as a convenient shortcut to avoid competition?
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 →