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
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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