Case T‑849/19

Leonardo SpA

v

European Border and Coast Guard Agency

Judgment of the General Court (Ninth Chamber, Extended Composition), 26 January 2022

(Public supply contracts – Tendering procedure – Aerial surveillance services – Action for annulment – No interest in bringing proceedings – Inadmissibility – Non-contractual liability)

1. Action for annulment – Natural or legal persons – Interest in bringing proceedings – Tendering procedure – Aerial surveillance services – Remotely piloted aircraft systems – Contract notice – Decision of the contracting authority addressed to tenderers – Action brought by a company which did not participate in the procedure on account of allegedly discriminatory technical specifications – Failure to demonstrate the discriminatory nature of those specifications – No interest in bringing proceedings – Inadmissibility

   (Art. 263 TFEU; Council Directive 89/665, Art. 1(3))

   (see paragraphs 23-29, 31-39)

2. Non-contractual liability – Conditions – Real and certain damage caused by an illegal measure – Concept – Loss of opportunity – Included – Conditions

   (Art. 340, second para., TFEU)

   (see paragraphs 46-52)

Résumé

On 18 October 2019, by contract notice, ( 1 ) the European Border and Coast Guard Agency (Frontex) launched a tendering procedure ( 2 ) (‘the contested contract notice’) in order to acquire aerial surveillance services by the means of Medium Altitude Long Endurance Remotely Piloted Aircraft System for maritime purposes.

The applicant, Leonardo SpA, a company operating in the aerospace sector, did not participate in the tendering procedure launched by the contested contract notice.

On 31 May 2020, the tender evaluation committee submitted its evaluation report to the authorising officer responsible who then approved the tender evaluation report and signed the contract award decision (‘the contested award decision’).

The applicant then brought an action before the General Court, first, for annulment of the contested contract notice and its annexes ( 3 ) and the contested award decision and, secondly, for compensation for the damage it claims to have suffered as a result of the unlawful nature of the call for tenders at issue. ( 4 )

By its judgment, delivered in a chamber sitting in extended composition, the Court dismisses the applicant’s action in its entirety. The principal feature of the case is that the action for annulment is directed against a contract notice and its annexes and has been brought by an undertaking which did not participate in the tendering procedure organised by that notice. The question whether such an action is admissible is without precedent.

Findings of the Court

In the first place, examining the admissibility of the applications for the annulment of the contested acts, the Court notes that, in the light of the applicant’s assertion that it did not participate in the tendering procedure at issue since the requirements of the tender specifications prevented it from submitting a tender, the question is whether, in such circumstances, it has an interest in bringing proceedings for the purposes of Article 263 TFEU against that call for tenders. In that context, the General Court recalls the position taken in that regard by the Court of Justice in a preliminary ruling, according to which, since it is only in exceptional cases that a right to bring proceedings is given to an operator which has not submitted a tender, it cannot be regarded as excessive to require that operator to demonstrate that the clauses in the call for tenders make it impossible to submit a tender. ( 5 ) Although that judgment was delivered in response to a question referred for a preliminary ruling on the interpretation of provisions of Directive 89/665, ( 6 ) which is binding only on the Member States, the Court considers that the solution it provides can be applied, mutatis mutandis, in a case such as the present one, in which the applicant claims that it was prevented from submitting a tender on account of the technical specifications of the tender documents launched by an agency of the European Union, technical specifications which it disputes. It must therefore, in the Court’s view, be determined whether the applicant has established that it was prevented from submitting a tender and, therefore, whether it has an interest in bringing proceedings.

In that regard, first, in respect of the tendering procedure at issue, the Court recalls that, in the present case, that procedure was preceded by the tendering procedure FRONTEX/OP/800/2017/JL, launched in 2017, for the trials of two types of remotely piloted aircraft systems (RPAS). That contract was divided into two lots and the applicant won the contract for the second lot. Once those contracts were performed, Frontex carried out detailed assessments and it was on the basis of those evaluation reports that it established the requirements contained in the contested contract notice and its annexes, the questions and answers and the minutes of the informative meeting, referred to in the application, which include those which the applicant considers to be discriminatory. The establishment of those requirements was therefore, in the Court’s view, at the end of a staged process marked by feedback which enabled Frontex to assess their necessity in detail and diligently.

Secondly, with regard to the applicant’s assertion that ‘the rules of the call for tenders contain clauses which are contra legem and unjustified and which expose potential competitors to claims which are not technically feasible’, the Court finds that three undertakings submitted a tender and two of them, at the very least, fulfilled all of the technical specifications as the contract was awarded to them.

Thirdly, with regard to the treatment of the applicant in relation to the other candidates, the Court considers that the applicant has not established either that the technical specifications were applied differently to it than to the other candidates or, more generally, that it was treated differently even though it was in a similar situation to those candidates.

Fourthly, with regard to the applicant’s assertion that its participation was made ‘impossible’ or that it was subject to ‘excessive economic burdens to the point of undermining the submission of a competitive tender’, the Court finds that that argument cannot demonstrate any discrimination against the applicant.

In those circumstances, the Court holds that the applicant has not demonstrated that the requirements of the call for tenders at issue could be discriminatory against it. Therefore, the applicant has not established that it was prevented from submitting a tender and therefore it does not have an interest in seeking the annulment of the contested acts. Consequently, the Court rejects as inadmissible the claims for annulment of those acts and, as a result, those directed against the award decision, without there being any need to rule on the requirements relating to the existence of a challengeable act and the applicant’s standing to bring proceedings, or on the effectiveness of the measures of inquiry sought.

In the second place, examining the claim for compensation, the Court recalls that, as regards the condition requiring actual damage to have been suffered, the European Union will incur liability only if the applicant has actually suffered ‘real and certain’ loss. Consequently, it is for the applicant to produce to the EU Courts the evidence to establish the fact and the extent of such loss. In the present case, the Court finds that the applicant is merely seeking compensation for all the damage that has been suffered and continues to be suffered as a result of the unlawful nature of the call for tenders at issue, without adducing evidence to establish the fact and the extent of that damage. It follows that the condition requiring actual damage to have been suffered has not been satisfied for the European Union to incur non-contractual liability. ( 7 )

In those circumstances, the Court holds that the applicant’s claim for compensation must be rejected and, consequently, its action must be dismissed in its entirety.

( 1 ) Contract notice published in the Supplement to the Official Journal of the European Union (OJ 2019/S 202-490010).

( 2 ) Tendering procedure FRONTEX/OP/888/2019/JL/CG entitled ‘Remotely Piloted Aircraft Systems (RPAS) for Medium Altitude Long Endurance Maritime Aerial Surveillance’.

( 3 ) Article 263 TFEU.

( 4 ) Article 268 TFEU.

( 5 ) Judgment of 28 November 2018, Amt Azienda Trasporti e Mobilità and Others (C‑328/17, EU:C:2018:958, paragraph 53). That judgment was delivered in response to a question referred for a preliminary ruling on the interpretation of Article 1(3) 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 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31).

( 6 ) See footnote 5 for the full reference for Directive 89/665.

( 7 ) Under the second paragraph of Article 340 TFEU.