JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

23 July 2025 ( * )

( 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 )

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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.

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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.

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Substance

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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

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– 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.

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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.

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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.

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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.

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119 In that context, no breach of the principles of transparency or of equal treatment can be established.

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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.

[Signatures]

* Language of the case: English.

1 Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.