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7 Eur. Procurement & Pub. Private Partnership L. Rev. 289 (2012)
Defence Procurement: The ECJ Keeps Its Ground on Dual Use Products

handle is hein.journals/epppl2012 and id is 311 raw text is: Defence Procurement: The ECJ Keeps its Ground on Dual Use Products | 289 Defence Procurement: The ECJ Keeps its Ground on Dual Use Products Case C-61 5/10, Insindaritoimisto InsTiimi Oy. Judgment of the Court (4th Chamber) of 7 June 2012 Agnieszka Chwialkowska and Jerzy Masztalerz* Practical appliance of the exemptions relating to defence purchases that require the pro- tection of the essential interest of the national security and therefore may be brought outside the scope of the EU public procurement directives gives rise to numerous legal problems. The key condition of the exemption is the specifically military purposes of the product, which is hard to determine in case of products of a possible dual use' or mixed use' - not only as military devices but also having their civil equivalents. In this respect a strict approach has been recently presented by the Court of Justice in the case C-65/lio where the Court reminds that only in very exceptional cases the products of dual use may be regarded as intended to be specifically military. I. Background of the case The Finnish Supreme Administrative Court requested a preliminary ruling on the interpreta- tion of Article io of Directive 2004/18/EC, Article 346(i)(b) of the Treaty on the Functioning of the European Union (TFEU) and the list of arms, munitions and war material included in Council Decision 255/58 of 15 April 1958 (hereinafter re- ferred to as the 1958 list) to which that provision of the TFEU applies. The Finnish Defence Forces issued a call for ten- ders for tiltable turntable equipment with a value of Ei.650.000 without prior publication of a contract notice in the Official Journal of the EU. Four compa- nies were invited to submit tenders. The contract was awarded pursuant to a negotiated procedure, which, however, did not satisfy the requirements of the Directive 2004/18. One of the bidders invited to submit tenders (Insinooritoimisto InsTiimi Oy - InsTiimi) dissat- isfied with the result of the procedure, brought an action before the Market Court, claiming that the contract award procedure did not comply with WKB Wiercinski, Kwiecinski, Baehr Directive 2004/18. The court of first instance dis- missed the claim since it regarded it as settled that the tiltable turntable equipment was suited prima- rily to military purposes and that the contracting authority intended to use it solely for such purposes - therefore in the court's opinion there were grounds to use the exception provided for in the law. InsTiimi appealed to the Supreme Administra- tive Court, where the dispute between the bidder and the contracting authority concentrated around the possibility of excluding the scope of Directive 2004/18 due to the essential interests of the security of the Member State, when the contract involves a product that has both civilian and military use. InsTiimi argued that the tiltable turntable is a tech- nical innovation from the civilian sector and not a war material, since the technical implementation of the tiltable turntable equipment at issue is based on a combination of freely available materials, components and assembly systems, and its design is solely a matter of the appropriate selection and attachment of structural components. The Finnish Defence Forces replied that the tiltable turntable equipment would be used exclusively for military purposes, as it was purchased in order to simulate combat situations, especially practicing counter- EPPPL 4|2012

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