| | ECT-296Essential interests of security    
| ECT | Article 296 | 1. The provisions of this Treaty shall not preclude the application of the following rules:
(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;
(b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the common market regarding products which are not intended for specifically military purposes.
2. The Council may, acting unanimously on a proposal from the Commission, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply. |
| Case | Pte | Ref | Text | C-157/06
Italy | 24-28 | G2-10 | 24 In the present case, the Italian Republic maintains that the Ministerial Decree fulfils the conditions set out in Article 296 EC and Article 2(1)(b) of Directive 93/36 on the ground, inter alia, that the helicopters covered by that decree are dual-use items, that is to say, they may serve both military and civilian purposes.
25 In that regard, it is important to point out that, under 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 (see Commission v Italy, paragraph 46).
26 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 (see Italy v Commission, paragraph 47).
27 It is not disputed that the Ministerial Decree applies, as the Italian Republic admits, to helicopters which are clearly for civilian use whereas their military use is only potential.
28 Consequently, Article 296(1)(b) EC, to which Article 3 of Directive 93/36 refers, cannot properly be invoked by the Italian Republic to justify national legislation authorising recourse to the negotiated procedure for the purchase of those helicopters. | C-337/05
Italy | 45-49 | ECT-296.1.b | 45. In this case, the Italian Republic contends that the purchases of Agusta and Agusta Bell helicopters meet the legitimate requirements of national interest foreseen in Articles 296 EC and 2(1)(b) of Directive 93/36, on the ground that those helicopters are dual-use items, that is to say, they may serve as well for civilian as for military purposes.
46. First, it is important to point out that, under 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.
47. 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. The supply of helicopters to military corps for the purpose of civilian use must comply with those same rules.
48. It is established that the helicopters in question, as the Italian Republic admits, are certainly for civilian use and possibly for military use. 49. Consequently, Article 296(1)(b) EC, to which Article 3 of Directive 93/36 refers, cannot properly be invoked by the Italian Republic to justify recourse to the negotiated procedure for the purchase of those helicopters. |
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