Keywords
Summary

Keywords

Approximation of laws – Procedures for the award of public supply contracts – Directive 93/36 – Derogations from common rules – Restrictive interpretation – Protection of the essential interests of a Member State’s security

(Art. 296(1)(b) EC; Council Directive 93/36, Arts 2(1)(b), 3, 6 and 9)

Summary

A Member State has failed to fulfil its obligations under Directive 93/36 coordinating procedures for the award of public supply contracts, and in particular under Articles 2(1)(b), 6 and 9 thereof, where it has adopted national legislation authorising a derogation from the Community rules on public supply contracts in respect of the purchase of light helicopters for the use of police forces and the national fire service, without any of the conditions capable of justifying that derogation having been satisfied.

As regards the legitimate requirements of national interest foreseen by Article 296(1)(b) EC, any Member State may take such measures as it considers necessary for the protection of the essential interests of its security and which are connected with the production of or trade in arms, munitions and war materials, provided, however, that such measures do not alter the conditions of competition in the common market regarding products which are not intended for specifically military purposes.

It is clear from the wording of that provision that the products in question must be intended for specifically military purposes. It follows that the purchase of equipment, the use of which for military purposes is hardly certain, must necessarily comply with the rules governing the award of public contracts. Since it is not disputed that the national legislation applies to helicopters which are clearly for civilian use whereas their military use is only potential, Article 296(1)(b) EC, to which Article 3 of Directive 93/36 refers, cannot properly be invoked by the Member State concerned to justify national legislation authorising recourse to the negotiated procedure for the purchase of those helicopters.

Furthermore, resort to Article 2(1)(b) of Directive 93/36 in respect of the purchase of the helicopters in question appears disproportionate as regards the objective of preventing the disclosure of sensitive information relating to their production in so far as the Member State concerned has not shown that such an objective was unattainable within a competitive tendering procedure such as that specified by that directive. It follows that the mere fact of stating that the supplies at issue are declared secret, that they are accompanied by special security measures or that it is necessary to exclude them from the Community rules in order to protect the essential interests of State security cannot suffice to prove that the exceptional circumstances justifying the derogations provided for in Article 2(1)(b) of Directive 93/36 actually exist.

(see paras 25-28, 31-34, operative part 1)