Introduction: The Importance of Article 346 TFEU
In an important judgment of 16 February 2026 (No. 265.758), the Belgian Council of State rejected the action for annulment lodged by a German arms manufacturer against the decisions of the Belgian authorities to enter into a multinational strategic partnership for light weapons systems with the Belgian arms manufacturer FN Herstal. The Council confirmed that Belgium was entitled to conclude the partnership without launching an open and competitive public procurement procedure, on the basis of Article 346 TFEU.
The importance of this judgment cannote not be underestimated. The number of occasions on which a national or European court has had to rule on Article 346 TFEU remains limited. Moreover, little is known about its use. Nevertheless, there is broad consensus within the defence industry that the provision can (and must) play a key role in the security policy of EU Member States.
Under Article 346 TFEU, EU Member States may take any measures they consider necessary for the protection of their essential security interests in connection with the production of or trade in arms and ammunition. The provision allows Member States, for example, to disapply European procurement and State aid rules, thereby granting them greater freedom to choose their cooperation partners.
At a time of increasing geopolitical tensions and widespread calls for greater investment in defence, it is clear that Article 346 TFEU constitutes a key provision for governments seeking to develop a security policy.
The FN Herstal Case
In the “FN Herstal case”, Belgium entered into a multinational strategic partnership with FN Herstal at the end of 2023, a company wholly owned by the Walloon Region. Through this cooperation, the Belgian arms manufacturer became responsible for a large part of the supply and maintenance of the Belgian army’s light firearms and ammunition.
According to both partners, the partnership was historic and crucial for Belgian security. Whereas previously 85% of the Belgian army’s ammunition came from outside the European Union, a Belgian company would henceforth ensure that the Belgian armed forces had sufficient military equipment at their disposal.
Given that the protection of Belgium’s essential security was a key driver behind the partnership, the federal government decided to rely on Article 346 TFEU when structuring the arrangement. This allowed Belgium to negotiate directly with a Belgian arms manufacturer without launching a public and competitive procurement procedure.
However, this approach was not without criticism. A German competitor of FN Herstal argued that the strategic partnership primarily pursued economic objectives, namely job creation, and that the conditions for applying Article 346 TFEU were not fulfilled. The company considered that Belgium had wrongly excluded competition and lodged an appeal before the Belgian Council of State.
After previously rejecting applications for suspension of the partnership, the Council—following an extensive analysis with numerous references to EU case law—confirms that Belgium was entitled to rely on Article 346 TFEU in the FN Herstal case. In particular, the Council confirms that Belgium could classify the safeguarding of supply to the Belgian armed forces as an essential security interest.
The fact that the partnership may also serve secondary economic interests, such as job creation, does not prevent the application of Article 346 TFEU, according to the Council. It also emphasizes that the partnership concerns only “weapons with a military purpose”. This is important. Weapons for civilian use, such as those intended for police services, as well as items that may potentially be used as weapons but lack a military purpose, fall outside the scope of the Treaty provision.
Finally, the Council finds that the federal government’s approach is neither disproportionate nor unnecessary for the protection of Belgium’s security interest. Interestingly, the Council explicitly takes into account Belgium’s intention to develop a stronger Belgian Defence Technological and Industrial Base.
Conclusion: An Important Judgment for Practice
Given the depth and significance of the judgment, it can be expected that it will be thoroughly studied not only by academics and legal scholars, but also by public authorities and the defence industry. Through this ruling, the Council clearly indicates for what purposes Article 346 TFEU may (and may not) be used.
The case undoubtedly provides inspiration for policymakers seeking to refine their security strategy, possibly in cooperation with privileged partners. At the same time, the judgment underlines the importance of vigilance and critical scrutiny by companies active in the defence sector.
Since the provision allows Belgian policymakers, under certain conditions, to use a negotiated procedure without prior publication, it is advisable for them to carefully ensure compliance with Article 346 TFEU when awarding contracts. Only when the strict conditions for its application are met can reliance on this exceptional provision be justified.
The FN Herstal case shows that the Council will likely not hesitate to intervene (if resqueted) should those conditions not be fulfilled. A mere invocation of national security is insufficient to set aside public procurement rules. Those wishing to read the judgment can find it here: http://www.raadvst-consetat.be/arr.php?nr=265758
At Tender Law, we continue to closely monitor further developments concerning public procurement with a security component, and Article 346 TFEU in particular. We will soon publish a more extensive analysis of the 16 February 2026 judgment in several specialised journals. Should you require legal assistance in this complex area, please do not hesitate to contact us.