Court clears the way for Heckler & Koch to order an assault rifle
The Bundeswehr has been receiving assault rifles from Heckler & Koch for a good six decades. In the meantime, during a lengthy procurement procedure for new rifles, it looked as if a competitor would prevail. But it stays the same.
After a court order, the way is clear for the rearmament of the armed forces with 120,000 Heckler & Koch assault rifles. The Düsseldorf Higher Regional Court rejected a complaint by the Thuringian gunsmith CG Haenel on Wednesday. The federal government decided in 2021 to award the prestigious major contract to the Black Forest company Heckler & Koch. However, Haenel appealed to get back into the race. The Higher Regional Court was the final instance in the complaints procedure. It is now clear that the award decision stands.
Now the contract negotiations start. Once the contract has been negotiated, the budget committee of the Bundestag agree. His green light is considered almost certain. In addition, a technical test in the Bundeswehr is pending. It should be at least two years before the first large batches are delivered to the troops.
The tender for the rifle, which is to replace the “G36”, also from Heckler & Koch, had already begun in 2017. The major order is prestigious and, to a certain extent, a door opener for other arms deals. Because if you can show that the Bundeswehr is a major customer, you also have a good hand in talks with the military from other countries – that’s the norm in the defense industry. The volume of the assault rifle order is a maximum of 245 million euros. However, the companies participating in the tender process submitted lower bids. Heckler & Koch’s last bid is likely to be well below 200 million euros.
In the course of award procedure In the meantime it looked like a big surprise: in 2020 the federal government announced that Haenel had won with its offer. In the arms industry, this news was like a moderate earthquake, also because Heckler & Koch is considered a kind of house supplier to the Bundeswehr and is much larger than its small competitor from Suhl. The fact that Haenel has Arab owners annoyed some politicians.
In March 2021, the federal government backed down and excluded Haenel from the large order for an assault rifle due to patent infringement. Haenel took legal action against this decision by the Federal Armed Forces Procurement Office, but was unsuccessful before the Federal Cartel Office’s procurement chamber. After that, the Thuringians went before the Higher Regional Court Dusseldorf.
The core of the dispute was whether Haenel infringed a Heckler & Koch patent on his gun. This affects tiny holes designed to allow liquids and gases to drain quickly. This is important when soldiers have to wade through a river and be ready to fire quickly, for example, even though the rifles were underwater. This is called “over the beach” in industry parlance. Haenel doubted that the patent was legal – according to the company, it was rather a widespread industry standard that was not patentable at all.
If the patent were invalid, it could not have been infringed at all – according to Haenel’s line of argument. The company filed a so-called nullity action before the Federal Patent Court to overturn the H&K patent. However, the Düsseldorf judges did not want to wait for a judgment in Munich. The outcome of the Munich patent process is “completely open,” according to the justification for the Düsseldorf decision on Wednesday. “This was at the expense of the applicant, who would have had to prove that the patent was overridingly likely to be destroyed.”
For the Thuringian gunsmiths, the court decision is a severe setback. “We are disappointed and expected something different,” said a Haenel spokesman on Wednesday. The written justification will now be examined in detail.
Heckler & Koch pointed out that the rifle model offered was already in use in different versions in the military of other countries, for example in France, Norway and the US Marines. “In the future, the soldiers will be equipped with one of the best assault rifles in the world.”