Security Interests in Europe

Article 296 of the Treaty

Article 296 of the Treaty offers an exemption for cases where the application of European law would undermine Member States’ security:

• Article 296 (1)(a) allows Member States to keep secret information the disclosure of which they consider contrary to the essential interests of their security.
• Article 296 (1)(b) allows Member States to take measures they consider necessary for the protection of their essential security interests which are connected with the production of and trade in arms, munitions and war material. The latter are specified in a list established in 1958. Measures taken under Article 296 (1)(b) shall not adversely affect the conditions of competition on the common market for products which are not intended for specifically military purposes.

Application of Article 296 TEC

The application of Article 296 can create problems, because it is vague and open to interpretation. First, the field of application of Article 296 is not always clear, in particular since the 1958 list is rather generic. Second, uncertainties persist on the conditions for the use of the exemption, since there is no commonly agreed definition of “essential security interests” and what is necessary to protect them.

In practice, Member States have used the exemption provided by Article 296 very differently and often extensively. This is incompatible with the case law of the European Court of Justice, which states that Article 296 must be limited to exceptional and clearly defined cases. Moreover, the extensive use of the exemption hampers fair and open intra-European competition.

Derogation under Article 296 is a politically and legally serious matter. The Treaty therefore contains strict conditions for the use of the exemption, balancing Member States’ security interests with the principles and objectives of the Community. According to the Court of Justice, the use of the derogation must be limited to clearly defined and exceptional cases and interpreted in a restrictive way.