JUDGMENT OF THE GENERAL COURT (Third Chamber)
1 October 2025 (*)
( Award of grants in the field of defence – EDF – Funding of research actions – Call for proposals EDF‑2022-RA – Rejection of the applicant’s proposal – Manifest error of assessment )
In Case T‑1191/23,
Fincantieri NexTech SpA, established in Milan (Italy), represented by F. Di Gianni, A. Scalini and G. Pregno, lawyers,
applicant,
v
European Commission, represented by R. Tricot, T. Isacu de Groot and A. Koričić, acting as Agents,
defendant,
THE GENERAL COURT (Third Chamber),
composed, at the time of the deliberations, of P. Škvařilová-Pelzl, President, G. Steinfatt (Rapporteur) and D. Kukovec, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 17 March 2025,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Fincantieri NexTech SpA, the coordinator of the Nessos consortium, seeks the annulment of the Commission Decision of 20 October 2023 rejecting project proposal No 101121451 ‘NESSOS – Networked Sonars System of Systems’, submitted in response to the European Defence Fund (EDF) call for proposals EDF‑2022-RA-UWW-ODAC and confirming the conclusions in the evaluation summary report of 23 June 2023 (‘the contested decision’).
Background to the dispute
2 Project proposal No 101121451 ‘NESSOS – Networked Sonars System of Systems’ was submitted in connection with the EDF, which is one of the new funding programmes of the European Union falling under the 2021-2027 Multiannual Financial Framework.
3 Grants under that programme are governed by the rules and procedures established in Regulation (EU) 2021/697 of the European Parliament and of the Council of 29 April 2021 establishing the EDF and repealing Regulation (EU) 2018/1092 (OJ 2021 L 170, p. 149; ‘the EDF Regulation’) and 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) (‘the Financial Regulation’).
4 In accordance with Article 24 of the EDF Regulation, the EDF is implemented through annual work programmes adopted by the European Commission through implementing acts, which are published once a year and structured along a number of thematic and horizontal categories of actions. The work programmes are to set out in detail the research topics and the categories of actions to be supported by the EDF.
5 On 25 May 2022, the Commission adopted Implementing Decision C(2022) 3403 final on the financing of the EDF and the adoption of the work programme for 2022 – Part II (‘the work programme’).
6 The topics and actions set out in the work programme were subsequently implemented through calls for proposals published on the EU ‘Funding & Tenders’ portal, which contain the legal framework and conditions for the calls for proposals.
7 Point 3 of the work programme sets out the actions implemented for 2022. Point 3.1.14 concerns the category of actions designated as ‘Underwater warfare (UWW)’. It states that that category of actions would lead to a call for proposals in 2022, comprising two topics.
8 One of the two topics appears in point 3.1.14.2 of the work programme and is designated as follows: ‘EDF‑2022-RA-UWW-ODAC: Underwater observation, detection, acquisition and communications’.
9 On 21 June 2022, the call for proposals EDF‑2022-RA-UWW-ODAC was opened for submissions on the ‘Funding & Tenders’ portal. The deadline for the submission of proposals was 24 November 2022.
10 On 24 November, the applicant, in its capacity as coordinator and member of the Nessos consortium, submitted the project proposal in response to the call for proposals EDF‑2022-RA-UWW-ODAC.
11 On the same day, the applicant lodged, in its capacity as a member of the consortium led by DI Danish Defence and Security Industries Association, a proposal for the SWAT-SHOAL project, which fell within a different call for proposals, namely that bearing the reference EDF‑2022-CSA-NFP, relating to the coordination and support of network of National Focal Points (NFP) for the EDF and concerning the topic EDF‑2022-RA-UWW-UTS.
12 On 26 June 2023, the applicant received a letter informing it that the Nessos proposal could not be funded because the score obtained did not reach the minimum threshold required for that purpose. That letter was accompanied by an evaluation summary report dated 23 June 2023 (‘the ESR’) setting out the comments and scores given by the evaluation committee.
13 On 25 July 2023, the applicant submitted a request for review of the evaluation.
14 On 20 October 2023, the applicant received the contested decision, which confirmed the initial evaluation result.
Forms of order sought
15 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
16 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
17 The applicant raises, in essence, two pleas in law, alleging (i) manifest errors of assessment in the evaluation of the proposal and (ii) an infringement of Article 12 of the EDF Regulation.
The first plea, alleging manifest errors of assessment in the evaluation of the proposal
18 By its first plea, the applicant alleges manifest errors of assessment in the evaluation of its proposal.
19 It follows from settled case-law that, in the area of the grant of financial assistance, the Commission enjoys a wide discretion as regards the existence of the conditions justifying the grant of such assistance (see judgment of 14 February 2019, Poland v Commission, T‑366/17, not published, EU:T:2019:90, paragraph 35 and the case-law cited; judgment of 18 September 2024, Safran Aircraft Engines v Commission, T‑617/22, not published, EU:T:2024:629, paragraph 109).
20 It also follows from settled case-law that, as regards the comparative evaluation of numerous projects in complex scientific and technical fields, judicial review is limited to verifying whether there has been a breach of procedural rules and of the obligation to state reasons, material inaccuracy of the facts, a manifest error of assessment or misuse of powers (see judgment of 18 September 2024, Safran Aircraft Engines v Commission, T‑617/22, not published, EU:T:2024:629, paragraph 110 and the case-law cited). Furthermore, the assessment of the scientific excellence of a proposal by a panel of experts and by individual assessors from the disciplines concerned belong to the category of comparative evaluation of numerous projects in a field of a complex scientific and technical nature within the meaning of that case-law (judgment of 25 November 2020, BMC v Clean Sky 2 Joint Undertaking, T‑71/19, not published, EU:T:2020:567, paragraph 74).
21 According to the case-law, in order to establish that an institution has made a manifest error in the assessment of complex facts such as to justify the annulment of an act, the evidence adduced by the applicant must be sufficient to make the factual assessments used in that act implausible. Subject to that review of plausibility, it is not the Court’s role to substitute its assessment of complex facts for that made by the author of that decision. Consequently, a plea alleging the existence of a manifest error of assessment must be rejected if, despite the evidence adduced by the applicant, the assessment in question may still be accepted as true or valid (see judgment of 25 November 2020, BMC v Clean Sky 2 Joint Undertaking, T‑71/19, not published, EU:T:2020:567, paragraph 76 and the case-law cited; judgments of 29 March 2023, Universität Bremen v REA, T‑660/19 RENV, not published, EU:T:2023:170, paragraph 36, and of 18 September 2024, Safran Aircraft Engines v Commission, T‑617/22, not published, EU:T:2024:629, paragraph 111).
22 Thus, the only situation in which the assessments, which form a decision taken on the basis of complex facts, are capable of being examined by the Court is that in which the applicant alleges that the factual assessments at issue are implausible (judgments of 25 November 2020, BMC v Clean Sky 2 Joint Undertaking, T‑71/19, not published, EU:T:2020:567, paragraph 77; of 29 March 2023, Universität Bremen v REA, T‑660/19 RENV, not published, EU:T:2023:170, paragraph 37, and of 18 September 2024, Safran Aircraft Engines v Commission, T‑617/22, not published, EU:T:2024:629, paragraph 112).
23 To that end, it is up to the applicant to provide the factual or legal elements capable of establishing that the Commission’s assessment is vitiated by such a manifest error of assessment (see judgment of 14 February 2019, Poland v Commission, T‑366/17, not published, EU:T:2019:90, paragraph 38 and the case-law cited; judgment of 16 December 2020, Balti Gaas v Commission and INEA, T‑236/17 and T‑596/17, not published, EU:T:2020:612, paragraph 151). Furthermore, that review implies that the EU judicature determines whether the evidence provided by the applicant is sufficient to render the assessments of the complex facts contained in the contested decision implausible (see judgments of 16 December 2020, Balti Gaas v Commission and INEA, T‑236/17 and T‑596/17, not published, EU:T:2020:612, paragraph 151, and of 18 September 2024, Safran Aircraft Engines v Commission, T‑617/22, not published, EU:T:2024:629, paragraph 113).
The first part of the first plea, alleging manifest errors of assessment in the evaluation of the proposal in respect of award criterion 1.
24 In the first place, the applicant submits, in essence, that the Commission made a manifest error of assessment in finding that the fact that the Nessos project relied on the SWAT-SHOAL project presented a ‘tremendous risk’.
25 First, the applicant claims that the Nessos project and the SWAT-SHOAL project will be developed in parallel in order to avoid any duplication, as explicitly required by the call for proposals. If the Nessos project had contained a proposal about swarming, in work package 4, that was totally unrelated to SWAT-SHOAL, the proposal would have resulted in the duplication of efforts and a failure to ‘substantiate synergies and complementarity’, thus breaching a specific objective of the call for proposals. Although it was possible for those projects to be co-ordinated, the Nessos project could be carried out autonomously even if the SWAT-SHOAL project were not to be funded. The system-of-systems on which the Nessos project is based merely constituted a way to integrate the outcomes of the SWAT-SHOAL project.
26 Secondly, since they responded to different calls for proposals, the Nessos and SWAT-SHOAL projects necessarily addressed different topics and therefore had to be distinct.
27 Thirdly, the applicant states that, of the six work packages of the Nessos project relating to the field of technical research, only work package 4 appears to be coordinated with the SWAT-SHOAL project. Moreover, the tasks envisaged in that work package were not limited solely to the technology of the SWAT-SHOAL project, but also involved the assessment of other available technologies.
28 Fourthly, the proposal clarified that, as part of the Nessos project, the consortium would be monitoring available results from the SWAT-SHOAL project, but that those results were not yet certain or taken for granted.
29 Fifthly, according to the evaluation committee, the underwater swarming envisaged by the proposal was one of the potentially ‘game-changing’ aspects of the Nessos project, which implied that the committee considered the underwater swarming to be a very positive aspect of the project.
30 Sixthly, the term ‘interdependent’ was only used in relation to the ODAC and UTS calls for proposals and did not appear anywhere else in the proposal. The Nessos and SWAT-SHOAL projects were not ‘interdependent’, and the former did not depend on the latter.
31 Seventhly, the applicant observes that the SWAT-SHOAL project was ultimately financed by the Commission and therefore the concerns which the Commission raised in relation to the alleged dependence of the Nessos project on the SWAT-SHOAL project are no longer relevant and in any event are unfounded. Furthermore, it is surprising that the alleged interdependence between the Nessos and SWAT-SHOAL projects was considered to be a ‘tremendous risk’ for the Nessos project but not for the SWAT-SHOAL project.
32 In the second place, the other two shortcomings identified by the evaluation committee, namely that the Nessos project lacked both a concept to address underwater challenges and a scientific part of research topics that represent critical shortfalls and challenges, are also unconvincing. The proposal included in particular ‘a scientifically focused part of research topics that represent critical shortfalls’, which encompassed not only work packages 2 and 8, but also work packages 3 to 7.
33 The applicant concludes that the misinterpretation of the proposal had a negative impact on its evaluation under award criterion 1 and, consequently, on its overall evaluation, particularly since that award criterion was double-weighted.
34 The Commission disputes the applicant’s arguments.
35 In that regard, award criterion 1, entitled ‘Excellence and potential of disruption’, is described in the call for proposals, as including the following aspects:
– ‘Excellence of the overall concept and soundness of the proposed approach for the solution, including main ideas, technologies and methodology[;]
– Compliance of the proposal with the objectives, scope and types of activities, functional requirements and expected impact of the topic as set out in section 2[;]
– Extent to which the objective and expected outcome of the proposed project differs from (and represents an advantage at strategic, technological or defence operational level over) existing defence products or technologies, or has a potential of disruption in the defence domain[.]’
36 It is stated in the ESR that, in respect of the evaluation of the proposal having regard to award criterion 1, that it obtained a score of 2 out of 5, which corresponds to an evaluation of ‘Fair: the proposal broadly addresses the criterion, but there are significant weaknesses’. The score was accompanied by the following comments:
‘The goal of the proposal is to merge and integrate existing technologies in a System-of-systems concept demonstrating their added-value in the underwater situational awareness for a broad spectrum of underwater missions against moving subsurface threats. However, Nessos does not propose a concept to face the challenges and mainly highlights ongoing work and existing technologies, with low maturity level and current limitations, without specifying quantitative performance targets.
The proposed methodology building on several steps is rather credible. However, the consortium relies, specifically for swarming, on a proposal to an EDF22 call which is a tremendous risk as an award [of the financing] of this proposal is not guaranteed and project outcome will be available only after several years.
Nessos addresses all the objectives, the scope, the functional requirements and the expected impact while the best practices from the civilian sector will be gathered and analysed, particularly of unmanned vehicles domain. The proposal describes and lists the state-of-the-art technologies with detail. However, the proposal must have a scientifically focused part of research topics that represent critical shortfalls in the process chain from sensor to underwater situational awareness and challenges in coordinated operation of unmanned system-of-systems but this is mostly missing, only [work packages] 2 and 8 cover this requirement.
The proposal contains some potentially game-changing aspects such as underwater swarming, data fusion, AI applications. However, the proposal presents few other tangible advantages and the section 1.3 of the proposal mostly lists well-known challenges and things to do. Moreover, facts and figures are lacking to substantiate any advantage of expected outcome.’
37 The applicant submits, in the first place, that the Commission erred in finding that the Nessos project and the SWAT-SHOAL project were interdependent, whereas they were in fact self-standing.
38 Accordingly, by that argument, it submits that the facts on which the Commission’s evaluation rests are incorrect.
39 First, it is stated in particular, in section 1.2 of the proposal, entitled: ‘Objectives – Scope and types of activities – Functional requirements – Expected impact’ as follows:
‘In order to further ensure that the consortium avoids unnecessary duplication of efforts and favours interoperability, several measures have already been identified: […] the approach set out hereafter has been designed in full coordination between i) the present “NESSOS” proposal and ii) the EDF‑2022-RA-UWW-UTS (“SWAT-SHOAL”). Joint meetings have taken place, so as to ensure consistency between the two proposals and several consortium members have directly contributed to the design of the two proposals in parallel. Consequently, both projects integrate, by design, the need to coordinate with one another.’
40 It is clear from that passage that the consortium led by the applicant considered that reciprocal coordination between the Nessos and SWAT-SHOAL projects would be necessary.
41 Secondly, in the part setting out the summary of the Nessos project, it is stated that ‘from a defence research perspective, the Nessos project is well positioned to address capability gaps identified at the EU level and positively contribute to the implementation of several priorities’, that ‘Nessos will draw from the many connections developed by its participants to a series of ongoing Defence R&D initiatives (EDA and EDF based), in general, and to the synergies identified with the 2022 EDF “UUW-R-UTS” topic, more specifically’, and that, ‘on the EU level, this close interdependence between the UTS and ODAC calls has been integrated in the “SWAT SHOAL” proposal to the 2022 EDF UTS call, to which several NESSOS participants also contribute to, and vice versa’. That last sentence also appears in section 2.2 of the proposal, entitled ‘Complementarity with previous and ongoing R&D activities’.
42 While the applicant is correct in submitting that that passage uses the word ‘interdependence’ regarding the topics UTS and ODAC of the call for proposals only, and not as regards the Nessos and SWAT-SHOAL projects, it remains the case that it nevertheless follows that it was foreseen that the Nessos project would be supported by connections developed with the participants in the SWAT-SHOAL project and the synergies with the EDF‑2022 ‘UWW-R-UTS’ topic, which the latter project is part of.
43 Thirdly, in section 2.2 of the proposal, it is stated that the Nessos consortium will be monitoring available results from the ‘UTS project’, that is to say the SWAT-SHOAL project as was confirmed by the applicant at the hearing, with regard to the management and control of swarms to be transferred for the resulting system-of-systems. That sentence indicates that, for swarms, the Nessos project will be based on the results of the SWAT-SHOAL project.
44 Similarly, it is also stated in section 2.2 of the proposal, in essence, that the decision of the consortium not to engage in research on collective control of underwater vehicles, in other words underwater swarming as confirmed by the applicant at the hearing, made it possible to preserve a sound division of labour and complementarity with the UTS project, which supports the interpretation of the proposal made by the Commission that the aspect of collective control of underwater vehicles depended on the SWAT-SHOAL project.
45 It follows that the Commission did not misinterpret the proposal in considering that, according to that proposal, the Nessos project depended, at least in part, on the SWAT-SHOAL project. The applicant’s argument that the facts on which the Commission’s evaluation rests are incorrect cannot therefore succeed.
46 In the second place, the applicant submits that the Commission committed a manifest error of assessment in finding that that interdependence presented a tremendous risk for the Nessos project.
47 In order to demonstrate a manifest error of assessment in that respect, the applicant’s arguments must be such as to show the implausibility of the assessment made by the evaluation committee and confirmed by the Commission (see the case-law cited in paragraphs 19 to 23 above).
48 In the ESR, it was explained that, in respect of the proposal’s excellence and potential of disruption, it was notably the underwater swarming that was one of the potentially ‘game-changing’ aspects. However, given that, precisely for that aspect of the proposal, it is stated in the latter that the Nessos project would not undertake research in the collective control of underwater vehicles, but would rely on the results of a project whose financing had not yet been granted at the time of the evaluation of the proposal (see paragraph 44 above), the Commission did not commit a manifest error of assessment in finding that those circumstances presented a tremendous risk for the execution of the Nessos project. The Commission submitted inter alia that the proposal did not specify the results on which the Nessos project could be based in the absence of results from the SWAT-SHOAL project or pending the latter results; and the applicant has not provided a response in that regard.
49 At the hearing, the applicant referred to certain passages in the proposal which appear on pages 153 and 166 of the annexes to the application. Those passages set out certain objectives in the matter, inter alia, of controlling platforms of unmanned underwater vehicles, but in the absence of more detailed explanations, they do not make it clear how a potential lack of results from the SWAT-SHOAL project could be overcome, all the more so since it is stated in the proposal that the Nessos project would not undertake research in the field of the collective control of underwater vehicles (see paragraph 48 above). The applicant has not referred to any passage of the proposal that deals explicitly with the scenario that could arise in the event of the failure of the SWAT-SHOAL project. Such an argument does not therefore demonstrate the implausibility of the evaluation set out in the ESR.
50 It follows that the Commission did not make a manifest error of assessment in finding that the fact that the Nessos project depended on another project, namely the SWAT-SHOAL project, posed a tremendous risk.
51 That finding is not called in question by the other arguments put forward by the applicant.
52 First, as regards the argument that the SWAT-SHOAL project was ultimately financed by the Commission, with the result that the concerns as regards the fact that the Nessos project depended on the SWAT-SHOAL project were no longer relevant and, in any event, unfounded, it suffices to recall that the two projects were evaluated concomitantly. The results of those two evaluations were communicated on 26 June 2023, with the result that, at the time that the proposal was being evaluated, it was not certain that the SWAT-SHOAL project, the evaluation of which was ongoing, would be financed.
53 Even if the evaluation committee assessing the Nessos project received information, at the end of its evaluation, regarding the result of the evaluation of the SWAT-SHOAL project, it remains the case that the financing of the latter had still not been obtained. As is stated at the end of point 8 of the call for proposals at issue, and likewise in the Commission’s defence, an invitation for grant preparation does not constitute a formal commitment for funding, given that the Commission still needs to make various legal checks, such as the validation of the legal entity and its financial capacity, or checking the exclusion criteria. Therefore, the risk as to whether the project would be carried out was certainly present at the end of the evaluation of the Nessos project.
54 In addition, even if the financing of the SWAT-SHOAL project had been certain, it remains the case that it was not clear what results that project would produce, if any. The ESR clearly explains that ‘the consortium relies, specifically for swarming, on a proposal to an EDF22 call which is a tremendous risk as an award of this proposal is not guaranteed and project outcome will be available only after several years’.
55 Those are risks which the evaluation committee and the Commission could validly take into consideration.
56 Secondly, as regards the argument that the integration of the programmes with each other was not prohibited by the call for proposals which, on the contrary, specifically required that integration, the Commission was correct in its assertion that the call for proposals required only that the proposals showed synergies and complementarity, while avoiding duplication with concepts and architectures developed in complementary ongoing European work streams and projects where relevant, but not with projects that were not yet begun. In the proposal, section 2.2 is moreover entitled ‘Complementarity with previous and ongoing R&D activities’. That section includes a sub-section devoted to the connection of the Nessos project with ongoing research and development activities, but also a sub-section on the specific and particularly strong connection with the SWAT-SHOAL project which was not an ongoing activity as suggested by the title of section 2.2, but merely a proposed activity.
57 Thirdly, the applicant submits that only work package 4 appeared to be coordinated with the SWAT-SHOAL project. While it is true that that concerned an important stage of the project, the five other technical work packages would also contribute to attaining the general objectives of the project and would provide inputs for the subsequent work packages. The importance of that work package cannot therefore be overestimated.
58 The Commission noted that work package 4 was intended to come at the beginning of the project and that all later work packages would afterwards build on that specific work package. That work package would have represented a crucial part of the execution of the proposal and therefore the Commission did not make a manifest error of assessment in finding that reliance on the uncertain outcomes of the SWAT SHOAL proposal could in fact endanger the realisation of all the other work packages and was a particularly large risk for the Nessos proposal. It explained that it was not only on the basis of that work package that the applicant was to fill the critical gaps in the reference contract – a crucial step for aspect 3 of award criterion 1 – and was to examine how to improve the current situation, but it was also on the basis of that work package that the applicant anticipated obtaining useful results for the execution of technology readiness level (TRL) 5 and of work package 9, in the context of which the activities of experimentation and demonstration would take place.
59 In that regard, it is clear from the proposal that work package 4 was to take place from the fourth to thirtieth month of the project, and that it was regarded as being an input for all the other subsequent work packages, namely work packages 5 to 9. Consequently, to rely on the uncertain results of the SWAT-SHOAL project could place the implementation of all the other work packages in jeopardy.
60 In addition, the references to the need for coordination with the SWAT-SHOAL project are not found directly in the detailed description of work package 4, but in the more general parts of the proposal (see paragraphs 39 to 44 and 48 above). Therefore, the applicant’s argument that only work package 4 was coordinated with the SWAT-SHOAL project cannot succeed.
61 Fourthly, the applicant submits that the Commission’s references to the additional shortcomings of the proposal are not convincing.
62 In the ESR, it was found that, as regards award criterion 1, first, the Nessos project did not propose a concept to address the challenges presented by its objective of merging and integrating existing technologies in a system-of-systems concept. The project mainly highlighted ongoing work and existing technologies, with low maturity level and current limitations, without specifying quantitative performance targets.
63 Secondly, it was criticised for lacking a scientifically focused part of research topics that represent critical shortfalls in the process chain from sensor to underwater situational awareness and challenges in coordinated operation of unmanned system-of-systems, as only work packages 2 and 8 covered that requirement.
64 As regards the first shortcoming, referred to in paragraph 62 above, the applicant submits, referring to pages 120, 121 and 123 to 126 of the annexes to the application, that the proposal did in fact advance a concept to meet the challenges in question.
65 However, on pages 120 and 121 of the annexes to the application, the proposal sets out, in essence, the challenges and the need to follow certain steps without, however, explaining in concrete terms how the necessary results would be achieved. On pages 123 to 126 of those annexes, the proposal merely describes the state of the art of certain technologies and objectives to be attained.
66 The question of whether that information provides a sufficiently concrete concept is within the Commission’s margin of appreciation. The applicant’s allegations, which merely refer to several pages of the proposal without providing any further support to them, are not capable of rendering the assessments contained in the ESR implausible. On the contrary, those assessments appear to be confirmed by the content of those pages.
67 As regards the second shortcoming, referred to in paragraph 63 above, the applicant submits, referring to pages 123 to 126 of the annexes to the application, that the proposal does include, in fact, a ‘scientifically focused part of research topics that represent critical shortfalls’, which also includes work packages 3 to 7.
68 As has been found in paragraph 65 above, in pages 123 to 126 of the annexes to the application, the proposal describes the state of the art of certain technologies and objectives to be attained. It is not apparent therefrom, or at least not clearly, that the work packages 3 to 7 are devoted to scientific research intended to address critical shortfalls in the process chain from sensor to underwater situational awareness and challenges in coordinated operation of an unmanned system-of-systems.
69 In any event, as the applicant has not substantiated its allegation, it cannot succeed.
70 The first part of this plea must therefore be rejected as unfounded.
The second part of the first plea, alleging manifest errors of assessment in the evaluation of the proposal in respect of award criterion 5
71 In the first place, the applicant submits that 6 of the 28 members of the Nessos consortium as well as a sub-contractor taking part in the project are small and medium-sized enterprises (SMEs). It is therefore surprising that the ESR considered the number of participating SMEs in the proposal as being ‘low’. In any event, Article 12(e) of the EDF Regulation specifically mentions subcontractors in relation to the evaluation of cross-border cooperation with SMEs and therefore, in the present case, the SME subcontractors participating in the project should be taken into account.
72 In the second place, the three aspects described in detail in the call for proposals for the evaluation of projects under award criterion 5 lack clarity. In particular, the difference between the concept of ‘new cross-border cooperation’ and ‘planned future cross-border cooperation’, mentioned in the first and second aspects, is particularly vague.
73 In the third place, first, it remains unclear to which sub-criterion of award criterion 5 the comment ‘a deeper cross-border cooperation between large industries and SMEs is not convincingly presented’ should be attributed. Second, the expression ‘deeper … cross-border cooperation’ referred to in the ESR suggests that the evaluation committee carried out a qualitative assessment of that cooperation, which would, however, fall outside the scope of that award criterion, since that expression does not appear in any of the aspects described in section 9 of the call for proposals.
74 In the fourth place, it was contradictory to maintain in the ESR that ‘the cooperation of the industry with cross-border SME is good’, when it was also stated in the ESR that that cooperation was not ‘convincingly presented’. It therefore follows that the evaluation committee made contradictory assessments of the same aspect being examined, namely cross-border cooperation between large industries and SMEs, even if those assessments related to two different aspects.
75 The applicant concludes that those errors had a significant negative impact on the evaluation of the proposal under that criterion 5 and, consequently, on the overall evaluation of the proposal, particularly since that criterion was double-weighted.
76 The Commission disputes the applicant’s arguments.
77 In the first place, a contradiction in the assessment of the proposal is capable of rendering that assessment implausible, with the result that, if that contradiction is proven, the Commission has made a manifest error of assessment (see the case-law cited in paragraphs 19 to 23 above).
78 In the contested decision, the Commission did not specifically adopt a position on award criterion 5, but responded to the applicant’s general criticism according to which the ESR contained contradictions. In that regard, it informed the applicant that the evaluation committee had examined carefully its claims, but had not found any error of assessment or contradiction in its reasoning.
79 It is stated in the ESR that, in respect of the evaluation of the proposal having regard to award criterion 5, it obtained a score of 3 out of 5, which corresponds to an evaluation of ‘Fair: the proposal broadly addresses the criterion, but there are significant weaknesses’.
80 The assessment of award criterion 5 in the ESR is worded as follows:
‘The proposal presents a broad range of diverse opportunities for cross-border cooperation between 28 partners, while it does not describe in sufficient detail the extent of new cooperation. Nevertheless, a deeper cross-border cooperation between large industries and SMEs is not convincingly presented.
Planned future cross-border cooperation is very weak, however, the cooperation of the industry with cross-border SMEs is good even if the number of participating SMEs is low.’
81 Award criterion 5, entitled ‘Creation of new cross-border cooperation’, comprises, according to section 9 of the call for proposals, the following aspects:
– ‘Extent to which the proposed project will create new cross-border cooperation between legal entities established in Member States or EDF associated countries, in particular SMEs and [middle capitalisation companies (mid-caps)], especially compared to former activities in the technological area of the call and taking into account the specificity of the market[;]
– Planned future cross-border cooperation between legal entities established in Member States or EDF associated countries and cooperation opportunities created by the proposed activities[;]
– Extent to which SMEs and mid-caps which cooperate cross-border participate substantially, and industrial or technological added value brought by them[.]’
82 Accordingly, award criterion 5 implements Article 12(e) of the EDF Regulation, which provides that each proposal is to be assessed on the basis of its contribution to the creation of new cross-border cooperation between legal entities established in Member States or associated countries, in particular SMEs and mid-caps with a substantial participation in the action, as recipients, subcontractors or as other legal entities in the supply chain, and which are established in Member States or associated countries other than those where the legal entities cooperating within a consortium which are not SMEs or mid-caps are established.
83 It is common ground between the parties that the first sentence of the assessment (namely ‘the proposal presents a broad range of diverse opportunities for cross-border cooperation between 28 partners, while it does not describe in sufficient detail the extent of new cooperation.’) responds to the first aspect of award criterion 5 (namely ‘extent to which the proposed project will create new cross-border cooperation between legal entities established in Member States or EDF associated countries, in particular SMEs and mid-caps, especially compared to former activities in the technological area of the call and taking into account the specificity of the market’).
84 It is also common ground that the passage ‘planned future cross-border cooperation is very weak’ refers to the second aspect of award criterion 5 (namely ‘planned future cross-border cooperation between legal entities established in Member States or EDF associated countries and cooperation opportunities created by the proposed activities’).
85 As to the passage ‘however, the cooperation of the industry with cross-border SMEs is good even if the number of participating SMEs is low’, the parties agree that it responds to the third aspect of award criterion 5 (namely ‘extent to which SMEs and mid-caps which cooperate cross-border participate substantially’).
86 The applicant submits, however, that it is unclear to which aspect of award criterion 5 the comment ‘a deeper cross-border cooperation between large industries and SMEs is not convincingly presented’ should be attributed. The expression ‘deeper cross-border cooperation’ also does not appear in any of the aspects of that criterion.
87 In that regard, the Commission has said that that phrase in the ESR was part of the assessment of the proposal in the light of the third aspect of award criterion 5, and that the expression ‘deeper cross-border cooperation’ had been used to refer to the quantitative added value that SMEs and mid-caps, which co-operate cross-border, could have brought to the European supply chain under the proposal. That explanation is plausible.
88 Furthermore, even without that explanation, it was possible to link that element of the assessment to the third aspect of award criterion 5. Although it is true that the expression ‘deeper cross-border cooperation’ does not appear as such in the description of award criterion 5 set out in the call for proposals, it remains the case that it is clear therefrom that both the extent to which the proposed project would create new cross-border cooperation compared with earlier activities in the technological field of the call for proposals and the industrial or technological added value brought by SMEs participating in cross-border cooperation would be evaluated. It follows that that call for proposals did indicate that there would be an evaluation of the potential of a proposal to develop deeper cross-border cooperation in the context of which SMEs or mid-caps would bring a substantial contribution. Thus, the expression ‘deeper cross-border cooperation’ clearly refers to that aspect of award criterion 5.
89 As to the alleged contradiction between the passages ‘however, a deeper cross-border cooperation between large industries and SMEs is not convincingly presented’ on the one hand, and ‘the cooperation of the industry with cross-border SME is good’, on the other hand, a reading of the ESR in the light of the third aspect of award criterion 5 shows that there is no such contradiction.
90 The passage, ‘the cooperation of the industry with cross-border SME is good’ responds to the part of the third aspect concerning the ‘extent to which SMEs and mid-caps which cooperate cross-border participate substantially’ (see paragraph 83 above). By contrast, the comment ‘however, a deeper cross-border cooperation between large industries and SMEs is not convincingly presented’ concerns the part of the third aspect relating to the ‘industrial or technological added value brought by [SMEs and mid-caps involved in cross-border cooperation]’ (see paragraphs 87 and 88 above). It follows that the evaluation committee found that the industry cross-border cooperation with SMEs was good, but that the share of SMEs did not make it possible to find that there was deeper cross-border cooperation between large industries and SMEs.
91 In the second place, the applicant disputes the finding that the number of SME participants in the proposal was ‘low’.
92 In so doing, the applicant does not allege that the facts found by the evaluation committee and the Commission were incorrect. In fact, the parties do not disagree as to the number of SME participants in the consortium. It is common ground that 6 of the 28 members of the consortium are SMEs. While the applicant had admittedly initially submitted, in paragraph 61 of the application, that there had been 7 SMEs out of a total of 28 members of the consortium, it acknowledged however, in paragraph 45 of the reply, that one of the SME participants was not a member of the consortium but a subcontractor. Under Article 9(8) of the EDF Regulation, subcontractors participating in an action are not members of the consortium.
93 Having regard to the wording of the aspects of award criterion 5, and in the light inter alia of Article 12(e) of the EDF Regulation, it is clear that the participation of SMEs as subcontractors must also be taken into account, which the Commission does not dispute.
94 In any event, finding that 6 companies out of 28 or 7 out of 29 were SMEs is of little significance. The applicant seeks in reality to replace the assessment made by the Commission with its own assessment. However, the question of whether a certain percentage of SMEs amongst the companies participating in a project must be regarded as low falls within the wide margin of appreciation available to the Commission. The Commission’s assessment could be regarded as being vitiated by a manifest error only if the applicant had raised arguments that demonstrated that assessment to be implausible. However, that is not the case. It is entirely plausible to find that ‘the number of participating SMEs is low’ where there is a share of SMEs of 1/4 or 7/29 amongst the participating companies.
95 In the third place, as regards the allegedly vague nature of the three aspects of award criterion 5, the Commission was correct to recall that there had been several ways for the candidates to ask for clarifications before submission of their proposal, as is clear inter alia from section 12 of the call for proposals. In addition, the allegedly vague nature of the award criterion in the call for proposals does not in itself vitiate the assessment made by the Commission under that criterion.
96 The second part of the first plea, and therefore the first plea in its entirety, must therefore be rejected as unfounded.
The second plea, alleging an infringement of Article 12(f) of the EDF Regulation
97 The applicant alleges that the Commission infringed Article 12(f) of the EDF Regulation since, first, it erred in assessing SME participation in the proposal also under award criterion 6 and, secondly, it did not review its assessment in the contested decision.
98 First, the level of SME participation in the action should have been assessed solely under award criterion 5, which corresponds to Article 12(e) of the EDF Regulation. By contrast, when assessing the proposal against award criterion 6 (‘quality and efficiency of implementation’), which corresponds to Article 12(f) of the EDF Regulation, the degree of SME participation plays no role whatsoever.
99 Secondly, the applicant observes that the wording used by the evaluation committee in relation to the assessment of award criterion 6, relating to the adequacy of the role of SMEs, suggests that that committee carried out a ‘quantitative’ assessment of the participation of SMEs in the project. However, according to the Commission’s own arguments, that assessment should be covered by award criterion 5.
100 Thirdly, while the applicant accepts that award criteria 5 and 6 focus on different aspects of the proposals, it nevertheless submits that there is a significant overlap between the third aspect of award criterion 5 and the fourth aspect of award criterion 6 since they both assessed the appropriateness of the allocation of tasks among the members of the projects and the added value brought by their contribution. However, Article 12(f) of the EDF Regulation requires an assessment of the ‘quality and efficiency of the carrying out [of] the action’ and therefore the Commission is not required to assess the quantitative participation of SMEs in the project and the allocation of tasks to them, and even less to do so twice. Thus, the double assessment of the allocation of tasks to SMEs lacked a legal basis and was thus unwarranted.
101 Fourthly, even assuming that the Commission did not err in carrying out a double assessment of the allocation of tasks to SMEs, the fact remains that the Commission did not assess the allocation of tasks and resources among the members of the project, including the SMEs, with a view to analysing the ‘quality and efficiency of … carrying out the action’, but did so merely to assess the participation of the SMEs and the allocation of tasks per se, without having regard to the quality and efficiency of the project.
102 The Commission disputes the applicant’s arguments.
103 In that regard, award criterion 6, entitled ‘Implementation’, is described in the call for proposals, as including the following aspects:
– ‘Effectiveness and practicality of the structure of the work plan (work breakdown structure), including timing and inter-relation of the different work packages and their components (illustrated by a Gantt chart, Pert chart or similar)[;]
– Usefulness and comprehensiveness of the milestones and deliverables of the project; coherence and clarity of the criteria for reaching the milestones, which should be measurable, realistic and achievable within the proposed duration[;]
– Appropriateness of the management structures and procedures, including decision-making mechanisms, to the complexity and scale of the project; quality of the risk management, including identification and assessment of the project specific critical risks, which could compromise the achievement of the stated project's objectives and detail of proposed risk treatments (e.g. mitigation measures)[;]
– Appropriateness of the allocation of tasks and resources between consortium members, ensuring that all participants have a valid and complementary role; allocation of the work share that ensures a high level of effectiveness and efficiency for carrying out the project[.]’
104 The findings set out in the ESR regarding award criterion 6, are as follows:
‘The proposal provides an efficient and adequate work plan. The organisation of the GANTT chart is coherent, including timing and interrelations of the different work packages and their tasks. The content of some of the work packages are written in very general terms so that their real content is not always clear, while in specific work packages (e.g. [work package] 2) the time needed to run the activities is underestimated.
The milestones and deliverables of the project have been selected sensibly and the criteria for reaching them are clear. Dissemination activities in task 1.4 are rather limited and a roadmap with recommendations is missing. The distribution in time of the deliverables is reasonable. The two required deliverables “Special Report” are missing. The timing of the military scenarios in month 8 is rather late and puts pressure on other work-packages that depend on that.
The proposal professionally describes the management structure, the procedures and the decision-making mechanisms which correspond to the complexity of the tasks. However, the General Assembly is not the highest authority to decision mechanisms. The involvement of the end-users board of navies is foreseen but it is unclear if this can deliver in time. The risk assessment and mitigation is sufficiently detailed but it is limited only to managerial risks. Further risks [such] as technological, operational and external ones are not considered.
The allocation of efforts is well formulated and distributed in work packages. These resources are well aligned with work package objectives and deliverables. The proposed objectives and the resources are allocated [appropriately] to all partners reflecting their roles.
The consortium lacks sufficient SME participation and the percentage of the budget (9%) and tasks for SMEs is low, while there is not significant role for SME in the demonstration ([work package] 9). The percentage of academia’s participation (18.6%) is well balanced.’
105 The contested decision indicates, in essence, that the evaluation committee found that there was no contradiction or procedural or factual errors and it therefore confirmed the result of that criteria indicated in the evaluation.
106 In the first place, the applicant submits that the allegedly incorrect consideration as regards award criterion 6 as to the low participation of SMEs significantly undermined an otherwise positive assessment of the allocation of work and resources of the proposal.
107 However, the evaluation of the proposal as regards award criterion 6 also contains other criticisms.
108 First, the ESR criticised the fact that the real content of some work packages was not always clear, whilst, in other work packages, the time needed to complete the activities was underestimated.
109 Secondly, the dissemination activities in task 1.4 are rather limited and there lacks a roadmap with recommendations. In addition, the two required deliverables ‘Special Report’ are missing. The timing of the military scenarios in month 8 is rather late and puts pressure on other work-packages that depend on that.
110 Thirdly, the ESR criticised the fact that the General Assembly is not the highest authority as regards decision mechanisms, and that it was unclear whether the involvement of the end-users board of navies could deliver in time. In addition, the risk assessment and mitigation is limited only to managerial risks, whereas further risks, such as technological, operational and external risks, are not considered.
111 The applicant is admittedly correct in observing that the assessment made by the ESR is positive overall. The score attributed to the proposal in respect of award criterion 6 is 3.5/5, which is thus between a score of 3 (‘Good[, t]he proposal addresses the criterion well, but a number of shortcomings are present.’) and a score of 4 (‘Very good[, t]he proposal addresses the criterion very well, but a small number of shortcomings are present.’). It remains the case, however, that the low participation of SMEs is clearly not the only element that had a negative impact on the assessment of the proposal with regard to that award criterion.
112 In the second place, the applicant states that, as the low participation of SMEs was already taken into account in the assessment of the proposal in respect of award criterion 5, the evaluation committee should not have taken it into consideration in the assessment of award criterion 6, otherwise it would penalise that proposal twice for the same defect.
113 At the outset, it should be noted that, following a question by the Court at the hearing, the applicant explained that it did not allege that Article 12(f) of the EDF Regulation was infringed by the call for proposals, but was infringed by the evaluation made by the evaluation committee.
114 In that regard, the third aspect of award criterion 5 covers the ‘extent to which SMEs and mid-caps which cooperate cross-border participate substantially, and industrial or technological added value brought by them’, whilst the fourth aspect of award criterion 6 assesses the ‘appropriateness of the allocation of tasks and resources between consortium members, ensuring that all participants have a valid and complementary role; allocation of the work share that ensures a high level of effectiveness and efficiency for carrying out the project’.
115 It is clear therefrom that there is some overlap only between the ‘extent to which SMEs and mid-caps which cooperate cross-border participate substantially’ and the ‘appropriateness of the allocation of tasks and resources between consortium members, ensuring that all participants have a valid and complementary role’, and only with regard to the ‘valid’ role of SMEs involved in cross-border cooperation.
116 It is clear, however, from a comparison of award criteria 5 and 6 that award criterion 5 specifically refers to the creation of new cross-border cooperation, particularly, but not exclusively, involving SMEs, and the extent to which the SMEs involved in cross-border cooperation participate substantially in the project in question. By contrast, award criterion 6, entitled ‘Implementation’, refers, more generally, to the overall implementation of the proposal, one of the aspects being the appropriateness of the allocation of tasks and resources between consortium members, without SMEs being specifically taken in account. As the Commission explained, the sole reason for the explicit reference to SMEs in the ESR in the assessment regarding criterion 6 was the fact that the weaknesses in the allocation of tasks and resources concerned only the SMEs, as the proposal was found, for the remainder, to be good as regards award criterion 6.
117 It follows that it was not the same weakness which was described in the ESR in the context of both award criteria but that those criticisms were in fact of two different kinds, namely, on the one hand, the adequacy of the allocation of the tasks and resources in general and as regards all the members of the consortium (award criterion 6) and, on the other hand, more specifically, the substantial participation of the only SMEs involved in cross-border cooperation (award criterion 5).
118 Therefore, the applicant’s argument that the Commission made a manifest error of assessment by penalising the applicant’s proposal twice on the same aspect cannot succeed.
119 In the third place, the applicant submits that the Commission made a quantitative assessment in the context of award criterion 6, whereas that assessment should have been made under award criterion 5. However, as the Commission rightly explains, one of the aspects of award criterion 6 is the appropriateness of the allocation of tasks and resources between consortium members, ensuring that all participants have a ‘valid’ and complementary role. To assess whether that allocation is appropriate and, as the case may be, balanced, the percentage of the budget and tasks allocated to SMEs may be used as an indicator of their participation in the project. In addition, the ESR does not merely set out that indicator, but also contains a qualitative assessment. First, that is clear from the fact the ESR does not indicate that the participation of SMEs is insufficient due to the low percentage of SMEs, but juxtaposes the assessment of the low level of their participation and the simple factual finding of the low percentage of SMEs (‘the consortium lacks sufficient SME participation and the percentage of the budget (9%) and tasks for SMEs is low’). Secondly, the statement that ‘there is not significant role for SME in the demonstration ([work package] 9)’ supports the qualitative assessment of the role that the SMEs were supposed to play.
120 In the fourth place, the applicant’s argument that the Commission restricted its assessment to the participation of SMEs, without taking into account the quality and efficiency of the project, cannot succeed. Only the first sentence of the last paragraph of the evaluation under award criterion 6 addresses the allocation of tasks and resources to SMEs. The remainder of that assessment concerns various aspects of award criterion 6. By way of example, its fourth paragraph, according to which ‘the allocation of efforts is well formulated and distributed in work packages’, ‘[those] resources are well aligned with work package objectives and deliverables’, and ‘the proposed objectives and the resources are allocated [appropriately] to all partners reflecting their roles’, shows that the Commission properly evaluated the proposal with regard to its quality and efficiency. The same is true, for example, as regards the passage of the evaluation under award criterion 6, according to which ‘the proposal provides an efficient and adequate work plan’ and ‘the organisation of the GANTT chart is coherent, including timing and interrelations of the different work packages and their tasks’.
121 It follows that the second plea in law and, consequently, the action in its entirety must be dismissed as unfounded.
Costs
122 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
123 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action.
2. Orders Fincantieri NexTech SpA to pay the costs.
Škvařilová-Pelzl | Steinfatt | Kukovec |
Delivered in open court in Luxembourg on 1 October 2025.
V. Di Bucci | | M. van der Woude |