ORDER OF THE COURT (Eighth Chamber)
14 February 2023 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Action for annulment – Public supply contracts – Instrument for Pre-Accession Assistance for Türkiye – National public procurement – Tendering procedure – Service contract for the supply of technical assistance for the activation of the ‘Specialty Foods Cluster’ in the Southeast Anatolia Region (EuropeAid/134403/IH/SER/TR) – Termination of the contract – Call on a bank guarantee by the Turkish authorities – Countersignature by the Delegation of the European Union to Türkiye of the request for payment – Appeal manifestly unfounded)
In Case C‑527/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 6 August 2022,
Equinoccio-Compañía de Comercio Exterior SL,
established in Madrid (Spain), represented by D. Luff, avocat, and R. Sciaudone, avvocato,
appellant,
the other party to the proceedings being:
European Commission,
defendant at first instance,
THE COURT (Eighth Chamber),
composed of M. Safjan, President of the Chamber, N. Jääskinen and M. Gavalec (Rapporteur), Judges,
Advocate General: P. Pikamäe,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By its appeal, Equinoccio-Compañía de Comercio Exterior SL seeks to have set aside the order of the General Court of the European Union of 9 June 2022, Equinoccio-Compañía de Comercio Exterior v Commission (T‑493/21, not published, EU:T:2022:353; ‘the order under appeal’), by which that court dismissed the action for annulment, brought under Article 263 TFEU, seeking annulment of the countersignature affixed, on 29 April 2021, by the Delegation of the European Union to
Türkiye to the European Commission’s letter of 5 November 2020, bearing the reference GK/Regio.ddg.d. 1(2020)6793282, concerning the enforcement of the bank guarantee requested by the Turkish Ministry of Science, Industry and Technology (‘the act
at issue’).
Background to the proceedings
2        The background to the dispute is summarised as follows in paragraphs 2 to 16 of the order under appeal:
‘2.      The applicant is a company incorporated under Spanish law which provides advisory services to undertakings and entities in the public and private sectors.
3.      On 17 July 2006, the Council of the European Union adopted Regulation (EC) No 1085/2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJ 2006 L 210, p. 82). Under Article 1 of that regulation, the European Union was to assist the countries listed in Annexes I and II, which included the Republic of [Türkiye], in their progressive alignment with the standards and policies of the European Union, including, where appropriate, the acquis communautaire, with a view to membership.
4.      On 21 April 2015, the European Commission published, under reference EuropeAid/134403/IH/SER/TR, a restricted invitation to tender for the supply of technical assistance for the activation of the [“Speciality Foods Cluster” in the Southeast Anatolia region (Türkiye)]. The purpose of the call for tenders was to conclude a contract for an initial period of 24 months and for a maximum budget of EUR 3 792 000. The contracting authority designated in the call for tenders was the Turkish Ministry of Science, Industry and Technology.
5.      On 18 July 2016, the contract in respect of the call for tenders at issue was awarded to a consortium coordinated by the applicant (“the consortium”). On 9 September 2016, the consortium signed the contract for the provision of services under reference TR 07 R2.04‑04/001 with the contracting authority (“the contract at issue”).
6.      It is apparent from Article 40.4 of the special conditions of the contract at issue that any dispute arising from the performance of that contract falls within the exclusive jurisdiction of the courts of Ankara [(Türkiye)], and that only Turkish law is applicable. That provision is reiterated, in essence, in Article 41.1 of the general conditions set out in Annex I to that contract.
7.      In accordance with the provisions of Article 30 of the general conditions set out in Annex I to the contract at issue, on 20 July 2017 the consortium provided a bank guarantee in favour of the contracting authority in the amount of EUR 689 440 (“the bank guarantee”). Under that bank guarantee, any request for its enforcement by the contracting authority was to be countersigned by the Head of the EU Delegation to [Türkiye] or by his deputy.
8.      During the performance of the contract at issue, the contracting authority and the consortium encountered several problems arising from communication and coordination difficulties between the key experts and the consortium, which led, inter alia, to the resignation of the team leader responsible for developing the project forming the subject matter of that contract.
9.      On 18 August 2017, the contracting authority suspended the execution of the contract at issue, pursuant to Article 35 of the general conditions of that contract. It also informed the applicant that, if the necessary measures were not taken, the contract would be terminated in accordance with Article 36 of those general conditions.
10.      On 29 November 2017, the contracting authority sent a notice of termination of the contract at issue to the applicant.
11.      Following the failure of the conciliation procedure provided for in Article 40 of the general conditions set out in Annex I to the contract at issue and the actual termination of that contract, the contracting authority requested the enforcement of the bank guarantee.
12.      By letter of 5 November 2020, the Commission informed the applicant that the EU Delegation to [Türkiye] was going to be instructed to proceed with the countersignature of the enforcement of the bank guarantee requested by the contracting authority (“the letter of 5 November 2020”).
13.      In particular, the Commission informed the applicant that, during the summer of 2020, its services had asked the Turkish authorities to ascertain whether the conditions for the enforcement of the bank guarantee had been met, and whether the contracting authority could claim the specific amount required. It also stated that the Turkish authorities had confirmed to it all of those elements, and that they had stated that the expenditure incurred by the [Republic of
Türkiye] in the performance of the contract at issue had been fully covered by the Turkish budget.
14.      On the same day, it instructed the EU Delegation to [Türkiye] to countersign the request for enforcement of the bank guarantee.
15.      On 29 April 2021, the EU Delegation [to Türkiye] countersigned the request for enforcement of the bank guarantee …
16.      By order of 22 October 2021, the Court dismissed the action for annulment brought by the applicant against the letter of 5 November 2020, on the ground that the Court did not have jurisdiction to hear it (order of 22 October 2021, Equinoccio-Compañía de Comercio Exterior v Commission, T‑22/21, not published, … EU:T:2021:743).’
The action before the General Court and the order under appeal
3        By application lodged at the Registry of the General Court on 6 August 2021, the appellant brought an action for annulment of the act at issue.
4        By separate document lodged at the Registry of the General Court on 10 November 2021, the Commission raised a plea of inadmissibility and lack of jurisdiction under Article 130(1) of the Rules of Procedure of the General Court. The appellant lodged its observations on that plea on 6 January 2022.
5        By the order under appeal, after noting that the act at issue did not constitute an administrative act covered by Article 288 TFEU, annulment of which may be sought from the EU judicature pursuant to Article 263 TFEU, the General Court upheld the plea of lack of jurisdiction raised by the Commission and, consequently, dismissed the action.
Forms of order sought and procedure before the Court of Justice
6        By its appeal, the appellant claims that the Court should:
–        set aside the order under appeal; and
–        order the Commission to pay the costs.
The appeal
7        Pursuant to Article 181 of the Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.
8        That provision must be applied in the present case.
9        On 24 November 2022, the Advocate General took the following position:
‘1.      For the reasons set out below, I propose that the Court should dismiss the appeal in the present case as manifestly unfounded, in accordance with Article 181 of the Rules of Procedure, and consequently order the appellant to pay the costs, in accordance with Article 137 and Article 184(1) of those Rules of Procedure.
…
4.      In support of its appeal, the appellant relies on three grounds of appeal alleging, first, distortion of the facts and evidence, infringement of the obligation to state reasons and of the rights of the defence, second, an error of law on the part of the General Court in so far as it held that the Commission had not acted in the exercise of its powers as a public authority and, third, an error of law in the interpretation of the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879), … and infringement of Article 263 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union (“the Charter”).
The second ground of appeal
5.      By its second ground of appeal, which it is appropriate to examine first, the appellant claims that the General Court erred in law in finding, in paragraph 28 of the order under appeal, that, in so far as it forms part of a contract between the contracting authority and the appellant, the act at issue does not constitute an administrative act.
6.      The appellant asserts that, while the General Court referred, in paragraph 26 of the order under appeal, to the order of 13 September 2012, Diadikasia Symvouloi Epicheiriseon v Commission and Others
(T‑369/11, not published,
EU:T:2012:425), that latter order does not set out any general criterion for determining the administrative nature of an act adopted by the Commission and, in particular, contains no indication as to the nature of the Commission’s intervention in the context of a contract such as that at issue. Therefore, it cannot be inferred from that order that such an intervention does not constitute the exercise of powers as a public authority.
7.      In that regard, as far as concerns the appellant’s argument that the act at issue constitutes an administrative act adopted by the Commission in the exercise of its powers as a public authority, it should, first of all, be recalled that, in the case of a contract between an applicant and one of the institutions, an action may be brought before the EU judicature on the basis of Article 263 TFEU only where the contested measure aims to produce binding legal effects falling outside of the contractual relationship between the parties and which involve the exercise of the powers of a public authority conferred on the contracting institution acting in its capacity as an administrative authority (judgments of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 20, and of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraph 74).
8.      It is true that the objective of an action for annulment is to ensure observance of the law in the interpretation and application of the FEU Treaty and it would therefore be inconsistent with this objective to interpret the conditions under which the action is admissible so restrictively as to limit the availability of this procedure merely to the categories of measures referred to by Article 288 TFEU. The fact remains that that power of interpretation and application of the provisions of the FEU Treaty by the EU judicature does not apply where the applicant’s legal position falls within the contractual relationships whose legal status is governed by the national law agreed to by the contracting parties (judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraphs 17 and 18).
9.      In the present case, there is nothing on the file before the Court that leads to the conclusion that the Commission used its powers as a public authority.
10.      As the General Court noted in paragraphs 31 and 28 respectively of the order under appeal, the act at issue does not constitute an administrative act covered by Article 288 TFEU, annulment of which may be sought from the EU judicature under Article 263 TFEU, but is based on the terms of the contract at issue, since only those terms define the conditions for the Commission’s intervention. Consequently, that act does not produce legal effects stemming from the exercise of powers as a public authority, but must, on the contrary, be regarded as inseparable from the contractual relationship existing between the appellant and the contracting authority (see, by analogy, judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraphs 23 and 24).
11.      That finding is supported by the case-law of the Court of Justice, to the effect that public contracts awarded by third countries and capable of benefiting from assistance under the Instrument for Pre-Accession Assistance
(“IPA”), subject to the principle of decentralised management, remain national contracts which only the national contracting authority responsible for following them through has the power to prepare, negotiate and conclude, the involvement of the Commission representatives in the procedure for the award of those contracts being confined solely to establishing whether or not the conditions for EU financing are met. Moreover, the undertakings which submit tenders for or are awarded the contract at issue have legal relations only with the third State which is responsible for the contract and the measures adopted by representatives of the Commission cannot substitute, in relation to them, an EU decision for the decision of that third State (see, to that effect, judgments of 14 January 1993, Italsolar v Commission, C‑257/90, EU:C:1993:8, paragraph 22, and of 28 October 2021, Vialto Consulting v Commission, C‑650/19 P, EU:C:2021:879, paragraph 125).
12.      In that regard, the General Court found, in paragraph 35 of the order under appeal, that the fact that the EU Delegation to Türkiye countersigned the letter for enforcement of the bank guarantee requested by the contracting authority followed a request from the Commission to the Turkish authorities to ascertain that the necessary contractual conditions had been met. It inferred therefrom that that countersignature occurred following an assessment, carried out by the Turkish authorities at the Commission’s request, concerning the performance of the contract at issue, and not following an assessment carried out by the Commission.
13.      In the light of the foregoing, the second ground of appeal must be rejected as being manifestly unfounded.
The third ground of appeal
14.      By its third ground of appeal, which must also be examined before the first ground of appeal, the appellant complains that the General Court erred in its interpretation of the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879), and, therefore, infringed Article 263 TFEU.
15.      The appellant submits, first, that it follows from that judgment that interventions on the part of the Commission which have a financial impact on the decentralised contracts awarded under the IPA fall within the scope of the exercise of powers as a public authority.
16.      Next, the appellant claims that, in paragraph 38 of the order under appeal, the General Court infringed, first, Article 263 TFEU, since no provision of the FEU Treaty precludes the application, in the context of an action for annulment, of the principles recognised by the Court of Justice in relation to non-contractual liability, and, second, Article 41(2)(a) of the Charter, in that it ignored the fact that, on the basis of that article, the appellant had challenged the
act at issue  in the light of the considerations
set out in paragraph 129 of the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879).
17.      In the first place, as regards that judgment, first, it is sufficient to note that the appellant merely makes general reference to that judgment, without identifying precisely the paragraphs of that judgment purporting to support its assertion that the Commission’s interventions having a financial impact on the decentralised contracts allocated under Regulation No 1085/2006 fall within the exercise of powers as a public authority. In any event, in that judgment, the Court of Justice did not rule on whether or not the Commission’s interventions in the context of decentralised management were administrative in nature.
18.      Second, as regards the appellant’s argument that the order under appeal infringes the principles identified in the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879), it should be recalled that the legal and factual context at issue in the action which led to that judgment is different from that of the present case, since that [first] action sought compensation for the damage suffered as a result of allegedly unlawful conduct on the part of the Commission and the European Anti-Fraud Office. The appellant’s argument cannot therefore reasonably succeed.
19.      In the second place, as regards the appellant’s argument that the order under appeal infringes Article 263 TFEU, it is true that an action for annulment under that article must be generally available in the case of all measures adopted by the EU institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his or her legal position. However, the EU judicature does not have jurisdiction over an action for annulment where the applicant’s legal position falls within contractual relationships whose legal status is governed by the national rules agreed to by the contracting parties (judgment of 16 July 2020, Inclusion Alliance for Europe v Commission, C‑378/16 P, EU:C:2020:575, paragraphs 71 and 72 and the case-law cited).
20.      In paragraph 31 of the order under appeal, the General Court held that the act at issue does not constitute an administrative act covered by Article 288 TFEU, annulment of which may be sought from the EU judicature pursuant to Article 263 TFEU, on the ground that the fact that the bank guarantee provided for the countersignature of the EU Delegation to Türkiye was only an element of the contractual relationship between the
appellant and the contracting authority, and the role of the Commission in the enforcement of that guarantee was merely participatory in that private law contractual relationship. Therefore, having thus found that the act at issue had to be regarded as inseparable from the contractual relationships between the appellant and the contracting authority, the General Court was in no way required to assess the effects of that act with regard to the appellant. It follows that that argument put forward by the appellant must be rejected.
21.      In the third place, as regards the argument alleging infringement of Article 41(2)(a) of the Charter, it is apparent from the considerations set out in paragraph 129 of the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879), that the finding by the Court of Justice that there was an individual measure which [had] adversely affected the appellant in that case, for the purposes of that provision, was made in the specific context, as set out in paragraphs 127 and 128 of that judgment, of a position adopted by the Commission.
22.      The General Court correctly noted, in paragraph 33 of the order under appeal, that, in the context of a decentralised programme providing for an ex ante control, as in the present case, the Commission representatives’ interventions are not intended to and cannot have the effect of undermining the principle that decentralised contracts remain national contracts, which only decentralised contracting authorities have the responsibility of preparing, negotiating and concluding (order of 4 July 2013, Diadikasia Symvouloi Epicheiriseon v Commission and Others, C‑520/12 P, not published, EU:C:2013:457, paragraph 34).
23.      Accordingly, the General Court did not err in law, in paragraph 38 of the order under appeal, in rejecting any analogy between the present case and the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879), in particular
paragraph 129 of that judgment, in so far as it referred to Article 41(2)(a) of the Charter.
24.      In the light of the foregoing, the third ground of appeal must be rejected as being manifestly unfounded.
The first ground of appeal
25.      By its first ground of appeal, the appellant complains that the General Court erred in law in that, by stating, in paragraph 34 of the order under appeal, that the expenditure incurred by Türkiye in the performance of the contract at issue was fully covered by the Turkish budget, it distorted the facts and the evidence and infringed the obligation to state reasons and the rights of the defence in so far as that assertion was formally contested.
26.      In that regard, it must be recalled that, according to settled case-law, a complaint directed against a ground included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and is therefore nugatory (see, to that effect, judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 34).
27.      It is apparent, in essence, from the examination of the second and third grounds of appeal that the Commission, which intervened under the conditions set in the decentralised public procurement contract concluded between the appellant and the contracting authority and arranged for the countersignature of the letter for enforcement of the bank guarantee following an assessment carried out by the Turkish authorities, did not exercise its powers as a public authority.
28.      Since such grounds sufficiently justify the order under appeal, the first ground of appeal must be rejected as ineffective.
29.      It follows from all the foregoing considerations that the grounds put forward by the appellant in support of its appeal are manifestly unfounded, so that the appeal must be dismissed in its entirety.’
10      For the same reasons as those given by the Advocate General, the appeal must be dismissed as being manifestly unfounded.
Costs
11      Under Article 137 of the Rules of Procedure of the Court, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Here, since the present order was adopted before the appeal was served on the defendant at first instance and therefore before the latter could have incurred costs, it must be held that the appellant is to bear its own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1.      The appeal is dismissed as manifestly unfounded.
2.      Equinoccio-Compañía de Comercio Exterior SL shall bear its own costs.
Luxembourg, 14 February 2023.
A. Calot Escobar
M. Safjan
Registrar
President of the Chamber
*      Language of the case: English.