A new Opinion from Advocate General Tamara Ćapeta signals that European Union law allows Member States to exclude telecommunications equipment from suppliers deemed to pose national security risks—while drawing a clear legal boundary around how such powers must be exercised.
The case, referred to the Court of Justice of the European Union by a court in Tallinn, arises from a dispute involving Estonian telecom operator Elisa Eesti AS. In 2022, the company sought approval to use equipment from Huawei in its 2G–4G and 5G networks. Estonian authorities refused, citing the “high-risk” nature of the supplier and potential threats to national security.
In her Opinion, Ćapeta confirms that Member States may, “in principle, exclude hardware and software from their telecommunications infrastructure on the basis that the manufacturer of that equipment poses a risk to their national security.” This position reinforces the broad discretion governments retain in safeguarding critical infrastructure, particularly in sensitive sectors such as telecommunications.
However, the Opinion firmly rejects the idea of unchecked discretion. Measures adopted on national security grounds must remain subject to judicial scrutiny and comply with core principles of EU law. In particular, the Advocate General stresses that such decisions must be proportionate. Authorities cannot rely on “a general suspicion” toward a supplier but must instead carry out “a specific assessment of the use of the intended equipment and the risks associated therewith.”
The Opinion also highlights the role of the European Electronic Communications Code, which establishes security requirements for telecom networks across the EU. Because these rules align national and EU security interests, Member States may rely on risk assessments conducted at EU level or by other national authorities, reinforcing a coordinated approach to telecom security.
On the question of property rights, the Advocate General draws an important distinction. Restrictions on using certain equipment do not amount to a deprivation of property under Article 17 of the EU Charter, but rather a limitation on its use. As a result, companies are “in principle, not entitled to compensation,” unless a national court determines that the burden imposed is disproportionately severe.
While the Opinion is not binding, it provides a strong indication of how the Court may approach the balance between national security and internal market freedoms. The final judgment, expected at a later stage, will be closely watched for its implications on Europe’s approach to high-risk vendors and the legal limits of security-driven market restrictions.