JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
23 July 2025 (*) (1)
( Public supply contracts – Tendering procedure – Trans-European Services for Telematics between Administrations – New Generation Extension (TESTA-ng II Ext) – Directive 2014/24/EU – Regulation (EU, Euratom) 2018/1046 – Decision to modify the existing contract without publishing a new call for tenders – Unforeseeable circumstances – Action for annulment – Locus standi – Individual concern – Admissibility )
In Case T‑1081/23,
BT Global Services Belgium, established in Machelen (Belgium), represented by V. Dor, A. Lepièce and M. Vilain XIIII, lawyers,
applicant,
v
European Commission, represented by L. André, M. Ilkova and S. Romoli, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of R. da Silva Passos, President, T. Pynnä (Rapporteur) and H. Cassagnabère, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 27 February 2025,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, BT Global Services Belgium, seeks annulment of the decision of the European Commission of 18 August 2023, by which the Commission modified the contract with reference DIGIT/A3/PN/2019/026 and entitled ‘Trans-European Services for Telematics between Administrations – New Generation Extension (TESTA-ng II Ext)’ (OJ 2023/S 158-500221) without launching a new procurement procedure.
Background to the dispute
2 The TESTA network is a project developed in the form of a network service in order to provide a communication platform for the exchange of data between the European public administrations, such as data from the Schengen Information System and from the Visa Information System, connectivity to several specific sites of Europol and the delivery of academic records and civil status documents in the European Union.
3 In 2011, the Commission launched restricted call for tenders DIGIT/R2/PR/2011/039, entitled ‘Trans-European Services for Telematics between Administrations – new generation (TESTA-ng)’. The corresponding contract, for which the applicant had submitted a tender, was awarded to T-Systems International GmbH (‘T-Systems’) in July 2012.
4 On 6 June 2017, the Commission awarded T-Systems the contract in procurement procedure DIGIT/A3/PN/2017/018, entitled ‘Trans-European Services for Telematics between Administrations – new generation (TESTA-ng II)’, by means of a negotiated procedure without prior publication of a contract notice, on the ground that the services concerned could be provided only by a particular economic operator, due to the absence of competition for technical reasons.
5 On 23 May 2019, the Commission launched restricted call for tenders DIGIT/A3/PR/2019/RP/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’. The corresponding contract was awarded to the applicant on 21 January 2022 (‘the decision of 21 January 2022’).
6 On 26 June 2019, the Commission launched procurement procedure DIGIT/A3/PN/2019/026, entitled ‘Trans-European Services for Telematics between Administrations – New Generation Extension (TESTA-ng II Ext), by means of a negotiated procedure without prior publication of a contract notice. On 29 May 2020, the corresponding contract was awarded to T-Systems, on the ground that the services concerned could be provided only by a particular economic operator, due to the absence of competition for technical reasons (‘the contract’). The objective was to ensure continuity of service by the TESTA network until migration to a new contractor, once the restricted procedure referred to in paragraph 5 above was concluded. The maximum contract value (‘the ceiling’) was fixed at EUR 121.9 million. The contract was to expire on 17 June 2024, but allowed for certain contracts to be performed up to 17 December 2024.
7 On 30 March 2022, T-Systems brought an action for annulment of the decision of 21 January 2022 (Case T‑173/22). On 31 March 2022, Telefónica de España, SA also brought an action for annulment of that decision, and submitted an application for interim measures (Cases T‑170/22 and T‑170/22 R).
8 By order of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published), the President of the General Court suspended operation of the decision of 21 January 2022 pending the order determining the proceedings for interim measures.
9 By order of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460), the President of the General Court dismissed the application for interim measures lodged by Telefónica de España.
10 Telefónica de España lodged an appeal before the Court of Justice against the order of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460) (Case C‑478/22 P(R)), and submitted an application for interim measures seeking, inter alia, an order requiring the Commission to suspend the signing of the contract with the applicant (Case C‑478/22 P(R)-R).
11 By order of 22 July 2022, Telefónica de España v Commission (C‑478/22 P(R)-R, not published, EU:C:2022:598), the Vice-President of the Court of Justice ordered the Commission to refrain from signing a contract in the context of procurement procedure DIGIT/A3/PR/2019/RP/010 until the making of an order terminating the proceedings for interim measures or ruling on the appeal in Case C‑478/22 P(R), whichever was earlier.
12 By order of 22 November 2022, Telefónica de España v Commission (C‑478/22 P(R), EU:C:2022:914), the Vice-President of the Court of Justice set aside the order of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460), and referred the case back to the General Court.
13 By order of 28 February 2023, Telefónica de España v Commission (T‑170/22 R-RENV, not published, EU:T:2023:89), the Vice-President of the General Court dismissed the application for interim measures and cancelled the order of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published).
14 Telefónica de España lodged an appeal before the Court of Justice against the order of 28 February 2023, Telefónica de España v Commission (T‑170/22 R-RENV, not published, EU:T:2023:89) (Case C‑141/23 P(R)), and submitted an application for interim measures (Case C‑141/23 P(R)-R).
15 By order of 14 March 2023, Telefónica de España v Commission (C‑141/23 P(R)‑R, not published, EU:C:2023:292), the Vice-President of the Court of Justice again ordered the Commission to refrain provisionally from signing a contract in the context of call for tenders DIGIT/A3/PR/2019/RP/010.
16 On 4 April 2023, the Commission cancelled call for tenders DIGIT/A3/PR/2019/RP/010 (see paragraph 5 above). It stated in particular that, almost four years after publication of that call for tenders, it was still prevented from signing the contract and that, since publication of the call for tenders, there had been significant changes in the geopolitical, technological and macroeconomic environment. Cancellation of the call for tenders invalidated the award of the related contract to the applicant and meant that there was no longer any need to adjudicate in Cases C‑141/23 P(R), T‑170/22 and T‑173/22.
17 On 18 August 2023, the Commission’s decision to modify the contract in procedure DIGIT/A3/PN/2019/026 (see paragraph 6 above) without launching a new procurement procedure was published in the Supplement to the Official Journal of the European Union (OJ 2023/S 158-500221) (‘the contested decision’). The modifications to the contract included, inter alia, adding additional services and increasing the maximum value of the contract from EUR 121.9 million to EUR 160.9 million, in order to allow six months of service provision for the specific contracts signed before expiry of the contract.
18 The reasons stated for those modifications were unforeseeable circumstances such as those resulting from the COVID-19 pandemic and from the orders of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published), of 22 July 2022, Telefónica de España v Commission (C‑478/22 P(R)‑R, not published, EU:C:2022:598), and of 14 March 2023, Telefónica de España v Commission (C‑141/23 P(R)‑R, not published, EU:C:2023:292), delivered by the Courts of the European Union, which had led to the cancellation of call for tenders DIGIT/A3/PR/2019/RP/010 in April 2023 (see paragraph 16 above) and had made it impossible to migrate to a new network or to have a new network fully operational by expiry of the contract.
Events subsequent to the bringing of the action
19 On 16 December 2024, the Commission’s decision to award to T-Systems, which in the meantime had become Deutsche Telekom Business Solutions GmbH (‘Deutsche Telekom’), the contract in procurement procedure DIGIT/2023/NP/0017, entitled Trans-European Services for Telematics between Administrations – New Generation (TESTA-ng III) (OJ S S/2024/244-769694) (‘the new contract’), by means of a negotiated procedure without prior publication of a contract notice and with the aim of ensuring continuity in the provision of new generation TESTA network services beyond 18 December 2024 (see paragraph 6 above), was published in the Supplement to the Official Journal of the European Union.
Forms of order sought
20 The applicant claims that the General Court should:
– annul the contested decision;
– grant any other appropriate measure;
– order the Commission to pay the costs.
21 The Commission claims that the Court should:
– dismiss the action as inadmissible;
– in the alternative, dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
Admissibility
22 The Commission submits that the action is inadmissible because the applicant lacks standing, specifically because it is not individually concerned within the meaning of the fourth paragraph of Article 263 TFEU.
23 First, according to the Commission, neither the fact that the applicant participated in a previous procurement procedure, nor even the fact that it was successful in such a procedure, is sufficient to distinguish it individually. As the needs of the contracting authorities have changed substantially since the launch of procedure DIGIT/A3/PR/2019/RP/010, in which the applicant had been successful, any future procurement procedure in the field will not be a mere repetition of that procedure. It is therefore impossible to know whether the applicant would be successful in any hypothetical procurement procedure that might have been launched had the existing contract not been modified.
24 According to the Commission, in paragraph 71 of the judgment of 21 February 2024, Inivos and Inivos v Commission (T‑38/21, EU:T:2024:100), the General Court held that, in the context of a negotiated procedure without prior publication of a contract notice, an operator which had not been invited to submit a tender could have standing to challenge the decision awarding the contract if it satisfied the criteria which the contracting authority had applied when selecting the undertakings to be invited to submit a tender.
25 The Commission claims that, in accordance with that case-law, if the applicant had challenged procedure DIGIT/A3/PN/2019/026 (see paragraph 6 above), in so far as it was based on an absence of competition for technical reasons, the applicant would undoubtedly have been distinguished from all the other economic operators in the same sector that had not challenged the contested decision, and could have been considered to be part of a limited class of entities that were identified or identifiable when the contested decision was adopted and that were affected in a particular way by that decision.
26 The Commission disputes the applicant’s assertion that the identifiable limited class of persons individually concerned by the contested decision would be ‘the group of competitors for the … contract’. Until and unless a future procedure is launched, it is impossible to determine which companies would have both an interest in submitting a tender and the capacity to do so. In the judgment of 21 February 2024, Inivos and Inivos v Commission (T‑38/21, EU:T:2024:100), the General Court attached decisive importance, for the purposes of verifying the existence of individual concern, to assessing the applicant’s interest in tendering and capacity to do so in the light of the specific requirements of the call for proposals. If no procedure had been launched, no such assessment could have been carried out.
27 Second, in order to establish individual concern, the case-law requires an alteration of previously acquired rights. The contested decision, unlike the decision of 4 April 2023 by which the Commission cancelled call for tenders DIGIT/A3/PR/2019/RP/010, does not entail any significant change in the applicant’s legal position that is peculiar to the applicant. The applicant does not belong to any ‘limited class’ of entities that were identified or identifiable at the time the contested decision was adopted and that are affected in a particular way by that decision, since it holds no right of which the content was altered or restricted by the contested decision. The fact that the applicant has in the past participated in procurement procedures with a view to providing services for the TESTA network, including once successfully, does not confer on it any right to be awarded or to sign new contracts in the same sector in the future.
28 Having a chance of winning a contract in a future hypothetical procedure does not constitute a right that has been altered by the contested decision. The applicant was an interested economic operator, as were many others, before the contested decision was adopted, and it has remained one thereafter.
29 The applicant disputes the Commission’s arguments.
30 Pursuant to the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to that person, and against a regulatory act which is of direct concern to that person and does not entail implementing measures.
31 In the present case, the contested decision is a contract modification notice, published in the Supplement to the Official Journal of the European Union.
32 Since it should be found that the applicant is not an addressee of the contested decision and that such a decision is not a regulatory act of general application, it is necessary to determine whether the applicant is directly and individually concerned by that decision.
33 In the first place, as regards whether the applicant is directly concerned by the contested decision, it must be recalled that the requirement laid down in the fourth paragraph of Article 263 TFEU, that a natural or legal person must be directly concerned by the measure which is the subject matter of the proceedings, requires the fulfilment of two cumulative criteria, namely the contested measure should, first, directly affect the legal situation of the individual and, second, leave no discretion to the addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (see judgment of 21 February 2024, Inivos and Inivos v Commission, T‑38/21, EU:T:2024:100, paragraph 60 and the case-law cited).
34 It is necessary to examine in turn whether the applicant satisfies each of those two requirements.
35 First, it is necessary to examine whether the contested decision directly affects the applicant’s legal situation.
36 In that regard, the contested decision had the effect of permanently depriving the applicant of the chance to participate in a procedure. Accordingly, the contested decision directly affected the applicant’s legal situation. Moreover, the applicant is active in the market concerned.
37 Second, the contested decision permanently modified the contract in procurement procedure DIGIT/A3/PN/2019/026 with immediate binding effect. Since that decision produces its legal effects in that regard without any additional measure being required, the second requirement, referred to in paragraph 33 above, is satisfied.
38 It follows that the contested decision directly affected the applicant. That point, moreover, has not been disputed by the Commission.
39 In the second place, as regards whether the contested decision is of individual concern to the applicant, it is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed (see judgment of 21 February 2024, Inivos and Inivos v Commission, T‑38/21, EU:T:2024:100, paragraph 68 and the case-law cited).
40 It is therefore necessary to ascertain whether the contested decision affects the applicant by reason either of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons within the meaning of the case-law cited in paragraph 39 above.
41 In that regard, it is apparent from settled case-law that, where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of economic operators (see judgment of 21 February 2024, Inivos and Inivos v Commission, T‑38/21, EU:T:2024:100, paragraph 70 and the case-law cited).
42 In the field of public procurement, the Court of Justice has held that it was apparent from the provisions of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1), that effective judicial protection required that unsuccessful tenderers have a real possibility of bringing an action (see, to that effect, order of the Vice-President of the Court of 22 November 2022, Telefónica de España v Commission, C‑478/22 P(R), EU:C:2022:914, paragraph 47).
43 In addition, recital 17 of Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31) states that ‘a review procedure should be available at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement’.
44 In the specific circumstances of use by a contracting authority of the negotiated procedure without prior publication of a contract notice, an operator which had not been invited to participate in that procedure, even though it was able to fulfil the criteria applied by the contracting authority to select the undertakings to be invited to tender, must be regarded as belonging to a limited class of competitors able to submit a tender if they had been invited to participate in the procedure (judgment of 21 February 2024, Inivos and Inivos v Commission, T‑38/21, EU:T:2024:100, paragraph 71).
45 In the present case, the contested decision is a contract modification notice. It is therefore not possible for the applicant to prove, as it could have done, as the case may be, in the event of a negotiated procedure without prior publication of a contract notice, that it was able to fulfil the criteria applied by the contracting authority to select the undertakings to be invited to tender and, accordingly, that it formed part of a limited class of competitors able to submit a tender if they had been invited to participate in the procedure.
46 However, first, the applicant participated in restricted call for tenders DIGIT/R2/PR/2011/039, entitled ‘Trans-European Services for Telematics between Administrations – new generation (TESTA-ng)’, launched in 2011. It also participated in restricted call for tenders DIGIT/A3/PR/2019/RP/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’, in which the contract was awarded to it (see paragraphs 3 and 5 above). Irrespective of the fact, highlighted by the Commission, that it is indeed impossible to be certain that the applicant would win a subsequent contract, it is nevertheless true, as the applicant notes, that the applicant was the only person to succeed in the last procurement procedure open to competition relating to TESTA network services.
47 Second, there is a close link between call for tenders DIGIT/A3/PR/2019/RP/010, in which the applicant won the contract, and the contract in procedure DIGIT/A3/PN/2019/026, which was modified by the contested decision. The objective of procurement procedure DIGIT/A3/PN/2019/026 was to ensure continuity of service by the TESTA network until migration to a new contractor, once restricted procedure DIGIT/A3/PR/2019/RP/010 was concluded (see paragraph 6 above).
48 Third, there is a direct link between the cancellation of call for tenders DIGIT/A3/PR/2019/RP/010, in which the applicant had won the contract, and the adoption of the contested decision, which modified procurement procedure DIGIT/A3/PN/2019/026. The reasons stated by the Commission for adoption of the contested decision were unforeseeable circumstances, such as those resulting from the orders of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published), of 22 July 2022, Telefónica de España v Commission (C‑478/22 P(R)‑R, not published, EU:C:2022:598), and of 14 March 2023, Telefónica de España v Commission (C‑141/23 P(R)‑R, not published, EU:C:2023:292), delivered by the Courts of the European Union, which had led to the cancellation of call for tenders DIGIT/A3/PR/2019/RP/010, making it impossible to migrate to a new network or to have a new network fully operational by expiry of the contract (see paragraph 18 above).
49 That factual situation, which differentiates the applicant from any other person, serves to distinguish the applicant individually on the basis of the case-law cited in paragraph 39 above.
50 The Commission has stated, in the rejoinder and at the hearing, that the applicant could have had standing to bring proceedings in relation to the contested decision if it had, at the outset, challenged the decision to award the contract in procedure DIGIT/A3/PN/2019/026. That argument must be rejected. Irrespective of whether the applicant chose to bring an action against that decision or not, the applicant is distinguished individually by the factual situation set out in paragraphs 46 to 48 above.
51 It follows that the Commission’s argument that the action is inadmissible because the applicant lacks standing, specifically because it is not individually concerned, must be rejected, and that the action is admissible.
Subject matter of the action
52 The Commission claims that the applicant’s arguments relating to the alleged unlawfulness of the Commission’s 2017 and 2020 decisions awarding contracts by negotiated procedure without prior publication of a contract notice (see paragraphs 4 and 6 above), which predated the contested decision and have now, in the absence of any appeal, become final, are inadmissible and, in any event, ineffective.
53 The applicant submits that the present action is not seeking to challenge past decisions relating to other procurement procedures but that, as a result of those successive Commission procedures and decisions, T-Systems has in fact benefited from extensions or direct awards, without any competition, under a procurement procedure in which the contract was initially awarded 11 years previously.
54 It should be noted that, in paragraphs 50 and 52 of the application, under the first plea in law, the applicant puts forward arguments concerning the Commission’s decision of 4 April 2023 cancelling call for tenders DIGIT/A3/PR/2019/RP/010 (see paragraph 16 above). Moreover, in paragraphs 55, 56, 74 and 75 of the application, under the first and third pleas in law respectively, it submits arguments concerning the 2017 and 2020 negotiated procedures without a prior call for competition (see paragraphs 4 and 6 above).
55 However, since it is not those decisions that are the subject matter of the action, those arguments must be found to be ineffective, in so far as they concern annulment of decisions other than the contested decision.
Substance
56 In support of its action, the applicant puts forward three pleas in law. It claims that, by increasing the maximum value of the contract without launching a new procurement procedure, the Commission erred in law contrary to, respectively, Article 72(1)(c) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65) and to Article 172(3)(b) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) (first plea), to Article 172(3)(a) of Regulation 2018/1046 (second plea) and to the principles of equality and transparency (third plea).
57 In addition, following the award of the new contract to Deutsche Telekom in December 2024 (see paragraph 19 above), the applicant submitted two new pleas relating, respectively, to its continued interest in annulment of the contested decision and to the fact that the Commission allegedly further erred in law by awarding the new contract without launching a procurement procedure.
First plea in law, alleging infringement of Article 72(1)(c) of Directive 2014/24 and of Article 172(3)(b) of Regulation 2018/1046
58 By its first plea, the applicant claims that the first and third conditions subject to which a contract can be modified under Article 72(1)(c) of Directive 2014/24 were not met since, first, the need for modification was not brought about by circumstances which a diligent contracting authority could not foresee and, second, the consecutive modifications made to the initial contract were aimed at circumventing the directive.
59 The applicant recalls in that regard that, according to the case-law, the burden of proving the actual existence of exceptional circumstances justifying a derogation from the rule that a framework agreement cannot be modified while it is being performed, and therefore the burden of proving that the conditions laid down in Article 72(1)(c) of Directive 2014/24 are met, lies on the person seeking to rely on those circumstances, that is to say, in the present case, the Commission.
60 As regards the legal basis of the contested decision, the applicant claims in the reply that, given that the Commission itself relied on Article 72(1)(c) of Directive 2014/24 in the contested decision, a breach of the principles enshrined by that provision is not irrelevant. In any event, according to recital 96 of Regulation 2018/1046, ‘procurement rules and principles applicable to public contracts awarded by Union institutions on their own account should be based on the rules set out in … Directive 2014/24’. Last, as the wording of the articles is identical, an infringement of Article 72(1)(c) of Directive 2014/24 necessarily entails an infringement of Article 172(3)(b) of Regulation 2018/1046.
61 As regards the first condition laid down in Article 72(1)(c) of Directive 2014/24, none of the circumstances set out by the Commission to justify its decision to modify the contract can, according to the applicant, be characterised as a circumstance which a diligent contracting authority could not foresee. By referring to ‘the sequence of events outside the control of the contracting authority (such as the COVID-19 pandemic and three subsequent Orders issued by the EU Courts on [1] April 2022, [22] July 2022 and [14] March 2023 – and ordering the suspension of signature of the [framework contract]) which finally led to the cancellation of the TESTA RP in April 2023’, the Commission has not proved the existence of the exceptional circumstances on which it relies.
62 Last, it is not impossible to migrate to a new network or to have a new network fully operational by expiry of the contract concerned, and therefore the need to continue to operate on the current new generation TESTA network until the replacement solution is available and fully operational is not in itself justification for the modifications made by the contested decision. In any event, any such impossibility is due solely to lack of diligence on the part of the Commission.
63 In that regard, the applicant claims in the reply that, even though the Commission could not, in 2019, foresee the COVID-19 pandemic and the cancellation of call for tenders DIGIT/A3/PR/2019/RP/010, it ought to have acted diligently, from 2020, when that pandemic struck, and at the beginning of 2022, when the war in Ukraine broke out, and then when the decision of 21 January 2022 was challenged, by taking the necessary measures to allow a transition and by launching a new procurement procedure before the end of the previous contract. In the present case, the need for modification of the contract was not brought about by the circumstances, but by the lack of diligence on the part of the Commission.
64 As regards the third condition laid down in Article 72(1)(c) of Directive 2014/24, that the consecutive modifications must not be aimed at circumventing that directive, the applicant claims that the contested decision is a new way for the Commission to avoid a call for competition in the context of the services concerned, which constitutes a means of circumventing Directive 2014/24 in breach of the principles of transparency, equality and free competition that it enshrines.
65 In the reply, the applicant claims that that condition is applicable, even though it was not expressly restated in Regulation 2018/1046, since it is merely a reminder of the general principle that contracting authorities must not use procurement law to circumvent the general principles of EU directives, including free competition, transparency and non-discrimination. In addition, there were indeed successive modifications to the same contract in the present case, given that the Commission has extended the contract concerned, or re-awarded it to the same contractor, since 2012.
66 The Commission disputes the applicant’s arguments.
67 Article 72 of Directive 2014/24, entitled ‘Modification of contracts during their term’, provides as follows in paragraph 1:
‘Contracts and framework agreements may be modified without a new procurement procedure in accordance with this [d]irective in any of the following cases:
…
(c) where all of the following conditions are fulfilled:
(i) the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee;
(ii) the modification does not alter the overall nature of the contract;
(iii) any increase in price is not higher than 50% of the value of the original contract or framework agreement. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this [d]irective;
…’
68 Article 172(3) of Regulation 2018/1046 provided as follows:
‘A contract, a framework contract or a specific contract under a framework contract may be modified without a new procurement procedure in any of the following cases:
…
(b) where all of the following conditions are fulfilled:
(i) the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee;
(ii) any increase in price does not exceed 50% of the initial contract value;
…’
69 According to the case-law of the Court of Justice, derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in connection with public supply contracts must be interpreted strictly. In addition, it must be recalled that the burden of proving the existence of exceptional circumstances justifying the derogation from those rules lies on the person seeking to rely on those circumstances (see judgment of 8 April 2008, Commission v Italy, C‑337/05, EU:C:2008:203, paragraphs 57 and 58 and the case-law cited).
– Legal basis of the contested decision
70 By its first plea, the applicant claims that the Commission infringed Article 72(1)(c) of Directive 2014/24. In that regard, it should be recalled that, as set out in recital 29 of Directive 2014/24, that directive applies only to contracting authorities of Member States. In addition, the first line of the contested decision clearly identifies Regulation 2018/1046 as its legal basis. It is therefore conceivable that the first plea could be rejected as ineffective on the ground that Directive 2014/24 does not apply to a decision taken by the Commission.
71 However, for the purposes of examining the first plea it should be understood that the applicant is, by that plea, referring to an infringement of Article 172(3)(b) of Regulation 2018/1046.
72 First, Article 161 of Regulation 2018/1046 provides that ‘Union institutions, when awarding contracts on their own account, apply the same standards as those imposed on contracting authorities covered by Directives [2014/23] and [2014/24]’. It is in fact clear from paragraphs 67 and 68 above that the provisions of Article 72(1)(c) of Directive 2014/24 and of Article 172(3)(b) of Regulation 2018/1046 are in part identical, with the effect that the arguments set out by the applicant can apply equally to that latter provision.
73 Second, the contested decision itself refers to Article 72(1)(c) of Directive 2014/24.
74 Admittedly, under the heading ‘Legal Basis’, the contested decision indicates ‘Regulation … 2018/1046’. In addition, Section VII.2.1 of the contested decision, entitled ‘Description of the modifications’, states as follows:
‘…
In conclusion, the maximum amount covering all purchases under the contract was increased from EUR 121 942 044.66 to EUR 160 977 913.06, based on [Article] 172(3)(a) and (b) of [Regulation 2018/1046]. …’
75 However, Section VII.2.2 of the contested decision, entitled ‘Reasons for modification’, states as follows:
‘Need for modification brought about by circumstances which a diligent contracting authority/entity could not foresee ([Article] 43(1)(c) of Directive 2014/23/EU, [Article] 72(1)(c) of Directive 2014/24/EU, [Article] 89(1)(c) of Directive 2014/25/EU)
…
… The need to continue operating on the current TESTA-ng network until the replacing solution will be available and fully operational, prompts the changes described in Section VII.2.1). In addition, some of the necessary modifications are also based on [Article] 172(3)(a) of [Regulation 2018/1046].’
76 The Commission states that the fact that reference is made to the three public procurement directives, and in particular to Directive 2014/24, in Section VII.2.2 of the contested decision is due to a technical limitation of the embedded drop-down list in that section of the form for notifying contract modifications. It should be noted in that regard that, even if that reference was made as the result of a technical limitation, the applicant cannot be criticised for relying on a directive that the contested decision itself presented as being one of its legal bases.
77 Third, in the reply, the applicant supplemented the title of its first plea by the addition of a reference to Article 172(3)(b) of Regulation 2018/1046.
78 In that context, for the purposes of examination, the arguments submitted by the applicant under its first plea must be understood as referring to an infringement of Article 172(3)(b) of Regulation 2018/1046.
79 In the absence of case-law on that latter provision, and given its similarities with Article 72(1)(c) of Directive 2014/24, it should be examined in the light of the recitals of Directive 2014/24 and of the case-law that exists on Article 72(1)(c) of Directive 2014/24, in particular that arising from the judgment of 7 December 2023, Obshtina Razgrad (C‑441/22 and C‑443/22, EU:C:2023:970).
– First part of the first plea in law
80 By the first part of its first plea, the applicant relies on an infringement of Article 72(1)(c)(i) of Directive 2014/24, the content of which corresponds to Article 172(3)(b)(i) of Regulation 2018/1046. It claims that the need for the modification was not brought about by circumstances that a diligent contracting authority could not foresee.
81 In that regard, it should be recalled that, pursuant to Article 72(1)(c)(i) of Directive 2014/24 and to Article 172(3)(b)(i) of Regulation 2018/1046, it is possible to modify a contract without a new procurement procedure where ‘the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee’ and where certain other conditions laid down by those provisions, which are not the subject matter of the first part of the first plea, are also met.
82 Recital 109 of Directive 2014/24 states as follows:
‘Contracting authorities can be faced with external circumstances that they could not foresee when they awarded the contract, in particular when the performance of the contract covers a long period. In this case, a certain degree of flexibility is needed to adapt the contract to those circumstances without a new procurement procedure. The notion of unforeseeable circumstances refers to circumstances that could not have been predicted despite reasonably diligent preparation of the initial award by the contracting authority, taking into account its available means, the nature and characteristics of the specific project, good practice in the field in question and the need to ensure an appropriate relationship between the resources spent in preparing the award and its foreseeable value. …’
83 As can be seen from the wording itself of recital 109 of Directive 2014/24, unforeseeable circumstances are external circumstances that the contracting authority, despite reasonably diligent preparation of the initial award, could not foresee when awarding the contract concerned, taking into account its available means, the nature and characteristics of the specific project, good practice in the field in question and the need to ensure an appropriate relationship between the resources spent in preparing the award and its foreseeable value (judgment of 7 December 2023, Obshtina Razgrad, C‑441/22 and C‑443/22, EU:C:2023:970, paragraph 68).
84 In the present case, call for tenders DIGIT/A3/PN/2019/026 was launched on 26 June 2019 and the corresponding contract was awarded on 29 May 2020 (see paragraph 6 above).
85 The contested decision states as follows:
‘The sequence of events outside the control of the contracting authority (such as the COVID-19 pandemic and three subsequent Orders issued by the EU Courts on [1] April 2022, [22] July 2022 and [14] March 2023 – and ordering the suspension of signature of the [framework agreement]) which finally led to the cancellation of the TESTA RP in April 2023, makes it impossible to migrate to a new network/have a new network fully operational by the expiry of the [framework agreement]. In this context, it is evident that this conclusion of the tendering process constitutes an exceptional circumstance which could not have been foreseen by a diligent contracting authority before the signature of the [framework agreement]. The need to continue operating on the current TESTA-ng network until the replacing solution will be available and fully operational, prompts the changes described in Section VII.2.1).’
86 At the time of preparation of the call for tenders in question, which was launched in June 2019, and when the corresponding contract was awarded, in May 2020, the Commission could not foresee any of the external circumstances identified in the contested decision, that is to say, neither the severity of the COVID-19 pandemic, which, at the time the contract was awarded, had just been declared, nor the succession of procedural events summarised in paragraphs 8 to 15 above, which constitutes a particularly unusual state of affairs.
87 It therefore follows from Article 72(1)(c)(i) of Directive 2014/24 and Article 172(3)(b)(i) of Regulation 2018/1046, read in the light of recital 109 of Directive 2014/24, that, as the Commission has claimed, the COVID-19 pandemic and the decisions handed down by the General Court and the Court of Justice between April 2022 and March 2023, ordering suspension of the signature of the preceding framework contract, can be regarded as circumstances that a diligent contracting authority could not foresee within the meaning of those provisions.
88 Furthermore, the reasonable diligence with which the contracting authority must have acted when preparing the initial award so as to be able to rely on Article 72(1)(c)(i) of Directive 2014/24 or on Article 172(3)(b)(i) of Regulation 2018/1046 does not require the Commission to have taken into consideration, when preparing the public contract concerned, that it might be impossible, by reason of those unforeseeable circumstances, to migrate to a new network or to have a new network fully operational by expiry of the framework contract.
89 In the light of the foregoing, the first part of the first plea must be rejected.
– Second part of the first plea in law
90 By the second part of its first plea, the applicant relies on an infringement of Article 72(1)(c)(iii) of Directive 2014/24, in so far as the consecutive modifications to the initial contract were allegedly aimed at circumventing that directive.
91 In that regard, it should be noted that Article 72(1)(c)(iii) of Directive 2014/24, on the fact that any increase in price must not be higher than 50% of the value of the initial contract, provides that, ‘where several successive modifications are made, that limitation shall apply to the value of each modification’ and that ‘such consecutive modifications shall not be aimed at circumventing [that] directive’. By contrast, the equivalent provision in Regulation 2018/1046, that is to say, Article 172(3)(b)(ii) of that regulation, does not contain that proviso.
92 Since Directive 2014/24 does not apply to the Commission, no infringement of Article 72(1)(c)(iii) of Directive 2014/24 can be held to have occurred in the present case.
93 In any event, as the Commission has correctly claimed, the raison d’être of the limitation laid down in the last sentence of Article 72(1)(c)(iii) of Directive 2014/24 is to prevent any misuse of that provision and, in particular, to avoid a situation in which the contracting authority devises a number of successive modifications to a single contract with the aim of circumventing the obligations under Directive 2014/24. That limitation therefore applies to consecutive modifications to a specific contract. It does not extend to past procurement procedures.
94 In the present case, the Commission modified the contract only once. Consequently, the second part of the first plea must be rejected.
95 As regards the claim alleging breach of the principles of transparency, equality and free competition (see paragraphs 64 and 65 above), it will be examined under the third plea.
96 It follows that the first plea, alleging infringement of Article 72(1)(c) of Directive 2014/24 and of Article 172(3)(b) of Regulation 2018/1046, must be rejected.
Second plea in law, alleging infringement of Article 172(3)(a) of Regulation 2018/1046
97 By its second plea, the applicant claims that the conditions for modifying the contract in accordance with Article 172(3)(a) of Regulation 2018/1046 were not met. In the contested decision, the Commission does not specify the manner in which the conditions set out in that provision are met in the present case.
98 The applicant recalls in that regard that, according to the case-law, the burden of proving the actual existence of exceptional circumstances justifying a derogation from the rule that a framework agreement cannot be modified while it is being performed, and therefore of proving that the conditions set out in Article 172(3)(a) of Regulation 2018/1046 are met, lies on the person seeking to rely on those circumstances, that is to say, in the present case, the Commission (see paragraph 59 above).
99 In any event, even if those conditions were met in the present case, a change of contractor would have been possible without a substantial duplication of costs if the Commission had acted diligently.
100 As regards the first condition laid down in Article 172(3)(a) of Regulation 2018/1046, concerning the fact that a change of contractor would be impossible for technical reasons, the applicant claims that it is not met. If the Commission had acted diligently, it would have been able to launch a new procurement procedure in time to ensure that a transition took place between the previous provider and a new provider. Furthermore, the specifications for the contract awarded to the applicant state that the current and new contractors had to work together closely to facilitate the migration, which shows that such a stipulation is possible.
101 The second condition laid down in Article 172(3)(a) of Regulation 2018/1046, concerning the fact that a change of contractor would cause a substantial duplication of costs, is likewise not met. The timing constraints on which the Commission relies are attributable to its lack of diligence since 2020.
102 Last, the third condition laid down in Article 172(3)(a) of Regulation 2018/1046, concerning the fact that the increase in price, including the net cumulative value of successive modifications, would not exceed 50% of the initial contract value, is not met. The contested decision follows on from a number of other modifications to the initial contract since 2012, in the form of extensions or awards without a prior call for competition. In practice, a framework agreement initially awarded on the basis of a call for tenders with a value of EUR 49.8 million in 2012 was increased, up to 2024, by a total of EUR 264.4 million.
103 The Commission disputes the applicant’s arguments.
104 Article 172(3) of Regulation 2018/1046 provides as follows:
‘A contract, a framework contract or a specific contract under a framework contract may be modified without a new procurement procedure in any of the following cases:
(a) for additional works, supplies or services by the original contractor that have become necessary and that were not included in the initial procurement, where the following conditions are fulfilled:
(i) a change of contractor cannot be made for technical reasons linked to interchangeability or interoperability requirements with existing equipment, services or installations;
(ii) a change of contractor would cause substantial duplication of costs for the contracting authority;
(iii) any increase in price, including the net cumulative value of successive modifications, does not exceed 50% of the initial contract value;
…’
105 It should be noted, as a preliminary point, that the contested decision cites both Article 172(3)(a) of Regulation 2018/1046 and Article 172(3)(b) of that regulation among its legal bases. Moreover, it appears to refer to Article 172(3)(a) of Regulation 2018/1046 in the alternative (see paragraphs 74 and 75 above).
106 Section VII.2.2 of the contested decision, entitled ‘Reasons for modification’, indicates that this is a modification where the ‘need for modification [is] brought about by circumstances which a diligent contracting authority/entity could not foresee’, provided for in Article 72(1)(c) of Directive 2014/24 and, in almost identical terms, in Article 172(3)(b) of Regulation 2018/1046.
107 The scenario provided for in Article 172(3)(b) of Regulation 2018/1046 is therefore presented as the principal reason. The contested decision in fact offers Article 172(3)(a) of Regulation 2018/1046 as an additional legal basis, stating that ‘some of the necessary modifications are also based on [Article] 172(3)(a) of [Regulation 2018/1046]’.
108 In other words, since the modifications to the contract can have as their sole basis the circumstances referred to in Article 172(3)(b) of Regulation 2018/1046, given that the Commission has established, under the first plea, that those circumstances existed in the present case, the second plea, alleging infringement of Article 172(3)(a) of Regulation 2018/1046, must be rejected as ineffective.
Third plea in law, alleging breach of the principles of equality and transparency
109 By its third plea, the applicant claims that, by increasing the maximum ceiling of the framework agreement from EUR 121.9 million to EUR 160.9 million without issuing a new call for tenders, the Commission acted in breach of the fundamental principles of equality, competition and transparency enshrined in Article 18(1) of Directive 2014/24 and in the case-law of the Court of Justice.
110 It is apparent from the case-law of the Court of Justice and, in particular, from paragraphs 67 and 68 of the judgment of 17 June 2021, Simonsen & Weel (C‑23/20, EU:C:2021:490), that, by virtue of the principles of equal treatment and transparency, and as a manifestation of the prohibition on using framework agreements improperly or in such a way as to prevent, restrict or distort competition, the contracting authority is under an obligation to determine at the outset the quantity or the maximum value that it may order during the performance of a framework agreement and that that ceiling may not be exceeded.
111 The Commission disputes the applicant’s arguments.
112 Article 18(1) of Directive 2014/24 provides as follows:
‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
The design of the procurement shall not be made with the intention of excluding it from the scope of this [d]irective or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.’
113 Recital 107 of Directive 2014/24 reads as follows:
‘It is necessary to clarify the conditions under which modifications to a contract during its performance require a new procurement procedure, taking into account the relevant case-law of the [Court of Justice]. A new procurement procedure is required in case of material changes to the initial contract, in particular to the scope and content of the mutual rights and obligations of the parties, including the distribution of intellectual property rights. Such changes demonstrate the parties’ intention to renegotiate essential terms or conditions of that contract. This is the case in particular if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure.
Modifications to the contract resulting in a minor change of the contract value up to a certain value should always be possible without the need to carry out a new procurement procedure. To this effect and in order to ensure legal certainty, this [d]irective should provide for de minimis thresholds, below which a new procurement procedure is not necessary. Modifications to the contract above those thresholds should be possible without the need to carry out a new procurement procedure to the extent they comply with the relevant conditions laid down in this Directive.’
114 In other words, Directive 2014/24 lays down the conditions under which modifications to a contract during its performance do not require a new procurement procedure, in compliance with the principles of equality and transparency recalled in Article 18(1) of that directive. The same reasoning can be applied, by analogy, to Regulation 2018/1046.
115 In paragraphs 68 to 72 of the judgment of 17 June 2021, Simonsen & Weel (C‑23/20, EU:C:2021:490), which the applicant cites, the Court of Justice, first, stated that the contracting authority which is an original party to the framework agreement can make commitments only up to a maximum quantity or a maximum value and that, once that limit has been reached, the agreement will no longer have any effect. That was what occurred in the present case, since the contract ceiling was set at EUR 121.9 million (see paragraph 6 above).
116 The Court of Justice, second, stated that, in accordance with Article 72 of Directive 2014/24, modifications to the framework agreement were nevertheless allowed where they were not substantial, since compliance with the principles of transparency and equality of treatment set out in Article 18(1) of Directive 2014/24 could be ensured if those conditions were met. Although the Court of Justice appears in that way to be referring to Article 72(1)(e) of Directive 2014/24, according to which ‘contracts and framework agreements may be modified without a new procurement procedure in accordance with this [d]irective … where the modifications, irrespective of their value, are not substantial’, the same reasoning can be applied, by analogy, to the situations under Article 72(1)(b) and (c) of Directive 2014/24 and under Article 172(3)(a) and (b) of Regulation 2018/1046.
117 In the present case, the Commission has established, under the first plea, that the exceptional circumstances referred to in Article 172(3)(b) of Regulation 2018/1046 actually existed. It follows that the modification of the contract is covered by one of the situations provided for in Article 172 of Regulation 2018/1046.
118 On the other hand, the applicant has not provided any evidence to show that the Commission was pursuing an aim other than that of meeting its operational requirements, such as that of unduly favouring or disadvantaging certain economic operators.
119 In that context, no breach of the principles of transparency or of equal treatment can be established.
120 It follows that the third plea, alleging breach of the principles of equality and transparency, must be rejected.
The two new pleas in law submitted by the applicant
121 Following the award of the new contract to Deutsche Telekom in December 2024 (see paragraphs 19 and 57 above), the applicant submitted two new pleas.
122 At the hearing, the applicant indicated that it was withdrawing the first new plea, relating to its continued interest in annulment of the contested decision, since that interest is not disputed by the Commission. It is therefore not necessary to examine that plea.
123 By the second new plea, the applicant claims that the Commission further erred in law by awarding the new contract without launching a procurement procedure. That circumstance confirms its line of argument that in reality the Commission made successive modifications to the initial contract in order to circumvent the general principles of equal treatment, transparency and free competition.
124 The Commission disputes the applicant’s line of argument. It claims, inter alia, that the plea in question is inadmissible or ineffective.
125 In that regard, it should be recalled that, under Article 84(1) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which have come to light in the course of the procedure.
126 In addition, it has been acknowledged by the case-law that the legality of an EU measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted. Consequently, elements post-dating the adoption of the EU measure cannot be taken into account in assessing the legality of that measure (see judgment of 27 September 2006, Roquette Frères v Commission, T‑322/01, EU:T:2006:267, paragraph 325 and the case-law cited).
127 In the present case, it should be noted, first, that the applicant restates the same head of claim that it submitted in the application, seeking annulment of the contested decision, but has not applied for annulment of the new contract. The applicant has therefore not modified the form of order sought in order to refer to the new contract.
128 Second, it should be noted that, in accordance with the case-law cited in paragraph 126 above, any unlawfulness affecting the new contract would not be such as to show that the contested decision is unlawful, since the new contract post-dates the bringing of the action.
129 Accordingly, irrespective of whether the second new plea raised by the applicant is admissible, that plea must in any event be rejected as ineffective.
130 The action must therefore be dismissed in its entirety.
Costs
131 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders BT Global Services Belgium to pay the costs.
da Silva Passos | Pynnä | Cassagnabère |
Delivered in open court in Luxembourg on 23 July 2025.