Advocate General backs conditional national 5G vendor exclusions in pending Elisa Eesti case

• The Court of Justice of the European Union has not approved a national 5G vendor ban. On 19 March 2026, Advocate General Tamara Ćapeta delivered a non-binding Opinion in the pending Elisa Eesti case; the judges will rule later.
• The proposed legal answer would allow Member States, in principle, to exclude hardware and software whose manufacturer poses a national-security risk, but not on general suspicion alone. The intended equipment, its use and the associated risk must be specifically assessed and the measure must be proportionate.

This is an Advocate General's Opinion, not a Court judgment

The Court's press release identifies the document as Advocate General Ćapeta's Opinion in Case C-354/24, Elisa Eesti. It expressly says the Opinion does not bind the Court and that judgment will be delivered later. The EUR-Lex case file lists the Opinion but no judgment, so the case remains pending. Calling the event a court approval, preliminary ruling or binding precedent changes its legal effect and is therefore inaccurate.

The dispute is Estonian, not Czech

Elisa Eesti, an Estonian telecommunications operator, applied in 2022 to use Huawei hardware and software in its 2G-4G and 5G networks. Estonian authorities considered the equipment to pose a national-security risk because Huawei was treated as a high-risk manufacturer. Elisa challenged the decisions before the Administrative Court in Tallinn, which sent questions on EU law to the Court of Justice. The request summary names Elisa and the Estonian Cybersecurity Council and Consumer Protection and Technical Regulatory Authority; it does not describe a Czech government challenge or a ZTE procurement ban.

What the Advocate General proposes

The full Opinion proposes that Member States may, in principle, exclude hardware and software from telecommunications infrastructure where the manufacturer poses a national-security risk. The questions engage the European Electronic Communications Code, particularly Articles 40 and 41 on network and service security, alongside Member States' national-security responsibility. The proposal covers the 2G-4G and 5G equipment at issue; it is not a licence for every authority to impose any vendor-wide ban on any network asset.

The legal conditions are the centre of the Opinion

The proposed exclusion must remain open to judicial review, including review of proportionality. A third-country manufacturer may be assessed differently from an EU manufacturer, but the decision cannot rest on general suspicion. It needs a specific assessment of the intended equipment, the way it would be used and the risks connected with that use. The Advocate General also says authorities may draw on risk assessments by EU institutions and national or EU bodies where EU and national security interests converge. Those assessments inform a decision; they do not eliminate the need to justify the measure before a court.

Property and replacement cost remain fact-dependent

The Advocate General characterises a restriction on using the equipment as a limitation on the use of property, not a deprivation of property under Article 17(1) of the Charter. On that analysis, an operator is not entitled to compensation in principle. The national court may still find compensation relevant if the burden is disproportionately heavy, even where the security restriction itself is necessary. The Opinion therefore does not settle Elisa's cost exposure or create a general no-compensation rule for every removal programme.

Estonia's authorisation system allows conditions as well as refusal

Sections 87³ and 87⁴ of Estonia's Electronic Communications Act require operators to seek authorisation for covered network hardware and software. Security bodies provide opinions, and the authority can approve, conditionally approve or refuse an application. Conditions may address time, network parts, functions or configuration. That statutory design helps explain why an equipment- and use-specific proportionality review matters: the available measure is not always a binary, permanent ban.

The EU 5G Toolbox is policy context, not the judgment

The Commission's 2020 Toolbox explanation describes a risk-based, non-binding coordinated approach and recommends restrictions, including necessary exclusions, for high-risk suppliers in critical and sensitive assets. In 2023, the Commission stated that Member State restrictions on Huawei and ZTE were justified and consistent with the Toolbox. Those policy positions form part of the risk-assessment environment, but they are distinct from a final interpretation of EU law in Elisa Eesti.

The operational consequence is a higher evidence burden, not an automatic ban

If the Court follows the Opinion, national authorities would gain a clearer route for security-based exclusions while operators would retain arguments about the evidence, intended deployment, proportionality and replacement burden. The European Court of Auditors previously found divergent national approaches, non-binding Toolbox measures and potentially high substitution costs. The decisive next records are the Court's judgment, the Tallinn court's application of it, the scope and timing of any authorisation conditions, and documented network migration and cost effects.