ORDER OF THE GENERAL COURT (First Chamber)
9 June 2022
(*)
(Action for annulment – Instrument for Pre-Accession Assistance – Non-Member State – National public procurement – Termination of the contract by the contracting authority – Request for enforcement by the contracting authority of a bank guarantee – Countersignature by the Head of the EU Delegation in the non-Member State – Lack of jurisdiction)
In Case T‑493/21,
Equinoccio-Compañía de Comercio Exterior, SL, established in Madrid (Spain), represented by R. Sciaudone and D. Luff, lawyers,
applicant,
v
European Commission, represented by D. Bianchi and T. Van Noyen, acting as Agents,
defendant,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, N. Półtorak (Rapporteur) and M. Stancu, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure, in particular:
–        the application lodged at the Court Registry on 6 August 2021,
–        the plea of inadmissibility and lack of jurisdiction raised by the Commission in a document lodged at the Court Registry on 10 November 2021,
–        the applicant’s observations on the plea of inadmissibility and lack of jurisdiction lodged at the Court Registry on 6 January 2022,
makes the following
Order
1        By its application under Article 263 TFEU, the applicant, Equinoccio-Compañía de Comercio Exterior, SL, seeks the annulment of the countersignature affixed on 29 April 2021 by the Delegation of the European Union in Ankara (Turkey) to the letter of enforcement of the bank guarantee of the Turkish Ministry of Science, Industry and Technology.
Background to the dispute
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 Turkey, 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 South East Anatolia region (Turkey).
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, 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 Turkey 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 performance 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 Turkey 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 Turkey 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 Turkey to countersign the request for enforcement of the bank guarantee.
15      On 29 April 2021, the EU Delegation in Ankara countersigned the request for enforcement of the bank guarantee (‘the contested act’).
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, under appeal, EU:T:2021:743).
Forms of order sought
17      The applicant claims, in essence, that the Court should:
–        annul the contested act;
–        order the Commission to pay the costs.
18      The Commission claims that the Court should:
–        dismiss the appeal for lack of jurisdiction or, at the very least, for manifest inadmissibility;
–        order the applicant to pay the costs.
Law
19      Under Article 130(1) and (7) of the Rules of Procedure of the General Court, if the defendant so requests, the Court may rule on inadmissibility or lack of competence without going to the substance of the case.
20      In the present case, the Commission having requested a ruling on lack of jurisdiction, the Court considers that it has sufficient information from the documents in the file to decide to rule on that application without taking further steps in the proceedings.
21      The Commission pleads, primarily, that the Court lacks jurisdiction on the ground that the present dispute is a purely contractual dispute between the contracting authority and the consortium.
It adds that the contested act is inseparable from the contractual framework of which it forms part and that it produces no legal effects that involve the exercise of the prerogatives of a public authority which are conferred on it in its capacity as an administrative authority. It also submits that neither the contract at issue nor the bank guarantee contains a clause conferring jurisdiction on the Court, but, on the contrary, provides that disputes arising from the performance of that contract fall within the exclusive jurisdiction of the courts of Ankara.
22      According to the applicant, the Commission used its public powers to adopt the contested act at the end of an administrative procedure and that measure has indisputable legal and financial effects as regards the applicant. From that point of view, the review of the exercise of such prerogatives of a public authority falls within the jurisdiction of the EU judicature. This interpretation is supported by the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879).
23      It must be borne in mind that, under Article 263 TFEU, the Courts of the European Union review only the legality of acts of the institutions intended to produce legal effects vis-à-vis third parties by bringing about a distinct change in their legal position
(see order of 25 March 2015, Borde and Carbonium v Commission, T‑314/14, not published, EU:T:2015:197, paragraph 28 and the case-law cited).
24      According to settled case-law, that jurisdiction concerns only the acts referred to by Article 288 TFEU which the institutions must adopt under the conditions laid down by the Treaty (see order of 25 March 2015, Borde and Carbonium v Commission, T‑314/14, not published, EU:T:2015:197, paragraph 29 and the case-law cited).
25      By contrast, acts adopted by the institutions in a purely contractual context from which they are inseparable are, by their very nature, not among the measures covered by Article 288 TFEU, annulment of which may be sought pursuant to Article 263 TFEU
(see order of 25 March 2015, Borde and Carbonium v Commission, T‑314/14, not published, EU:T:2015:197, paragraph 30 and the case-law cited).
26      It is also apparent from the case-law that public contracts awarded by third countries and capable of benefiting from assistance under the 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
Union financing are met.
Moreover, the undertakings that submit tenders which are awarded the contract in question have legal relations only with the non-Member State which is responsible for the contract and the measures adopted by representatives of the Commission cannot have the effect of substituting, in relation to them, a Union decision for the decision of that
State (see order of 13 September 2012, Diadikasia Symvouloi Epicheiriseon v Commission and Others, T‑369/11, not published, EU:T:2012:425, paragraph 52 and the case-law cited).
27      Lastly, it must also be borne in mind that the powers of the General Court are those set out in Article 256 TFEU, as clarified by Article 51 of the Statute of the Court of Justice of the European Union. Under those provisions and Article 272 TFEU, the General Court has jurisdiction to rule, at first instance, on contractual disputes brought before it under an arbitration clause.
28      In the present case, it is apparent from the documents before the Court that the contested act forms part of the contract between the contracting authority and the applicant, in that its purpose is the enforcement of the bank guarantee, which is based on the terms of the contract at issue.
29      According to Article 30.1 of the general conditions set out in Annex I to the contract at issue, the applicant was required to provide the contracting authority with a bank guarantee corresponding to the amount of the prefinancing granted to it by that authority.
Under Article 30.2 of those general conditions, the bank guarantee was to be provided in accordance with the template set out in Annex IV to that contract. Lastly, Article 30.4 of those general conditions provided that, in the event of termination of the contract, the contracting authority could invoke the bank guarantee in order to obtain reimbursement of the sums owed by the applicant.
30      In addition, the model bank guarantee which was set out in Annex VI to the contract at issue and with which the applicant was required to comply, provided that any request to enforce the bank guarantee granted to the contracting authority was to be countersigned by the Head of the EU Delegation to Turkey or by his deputy. That reference was reproduced verbatim in the bank guarantee actually provided by the applicant, in favour of the contracting authority.
31      Thus, the contested act 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. The fact that the bank guarantee provided for the countersignature of the EU Delegation to Turkey is only an element of the contractual relationship between the applicant and the contracting authority, and the role of the Commission in the enforcement of that guarantee is merely participatory in that private-law contractual relationship, which expressly provided for the possibility of such a request and such a countersignature.
32      Furthermore, there is nothing else in the documents before the Court from which it might be concluded that, in the present case, the Commission acted in the exercise of its powers as a public authority.
33      In that regard, in the context of a decentralised programme providing for an ex ante control, as in the present case, the contracting authority alone takes decisions concerning procedures and the award of contracts and submits them for prior approval by the Commission.
The Commission’s involvement therefore relates only to the grant of its authorisation to the financing of the decentralised contracts and the interventions of its representatives, during the decentralised procedures for the conclusion or performance of those contracts, and seeks only to establish whether the conditions for EU funding are met.
Thus, those 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; see also order of 13 September 2012, Diadikasia Symvouloi Epicheiriseon v Commission and Others, T‑369/11, not published, EU:T:2012:425, paragraph 52
and the case-law cited).
34      It is true that, in the context of decentralised management and implementation of IPA assistance within the meaning of Article 10(1) of Regulation No 718/2007, the Commission retains final responsibility for the implementation of the general budget. However, it should be noted that in the present case, as is apparent from the file and in particular from the letter of 5 November 2020, the countersignature by the EU Delegation is not relevant in this context, since the expenditure incurred by Turkey in the performance of the contract at issue was fully covered by the Turkish budget, no EU funds having been involved. Consequently, in countersigning the letter of enforcement of the bank guarantee, the Commission did not act in the context of its obligations to monitor the implementation of the general budget.
35      It is also clear from the documents in the file that the fact that the EU Delegation to Turkey countersigned the letter of 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 (see paragraph 13 above). Therefore, the countersigning of the letter of enforcement of the bank guarantee follows an assessment, made by the Turkish authorities at the request of the Commission, of the performance of the contract at issue, and not an assessment made by the Commission services.
36      Finally, neither the contract at issue concluded between the applicant and the contracting authority nor the bank guarantee contain a clause conferring jurisdiction on the Court to rule on any dispute which may arise in the course of its performance. On the contrary, it is clear from the conditions of that contract that a dispute arising from its performance falls within the exclusive jurisdiction of the courts of Ankara and that the applicable law is Turkish law (see paragraph 6 above). The same applies to the terms of the bank guarantee, which provide that the laws of the Republic of Turkey are applicable to it and that any dispute arising in connection with the guarantee should be brought before the courts of Ankara.
37      As to the analogy drawn by the applicant with the judgment of 28 October 2021, Vialto Consulting v Commission
(Case C‑650/19 P, EU:C:2021:879), it should be pointed out, first, that it is expressly clear from that judgment and, in particular, from paragraph 126 thereof that the Commission was, in that case, competent to determine the amounts, if any, excluded from EU financing, in so far as it retained, under Article 10(1) of Regulation No 718/2007, final responsibility for the implementation of the general budget. Thus, unlike the present case (see paragraph 34 above), there was no doubt that, as the Commission had acted in accordance with its obligations under Article 10(1) of that regulation, the contested position taken by the Commission was part of the use of its prerogatives as a public authority.
38      Secondly, it should be noted that, in addition to the fact that the object of the action was not the annulment of the contested act on the basis of Article 263 TFEU, as in the present action, but the European Union’s non-contractual liability on the basis of Article 268 TFEU, the consideration that the contested Commission position was to be regarded as an individual measure adversely affecting the applicant was to be interpreted in the light of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (judgment of 28 October 2021,
Vialto Consulting v Commission, C‑650/19 P, EU:C:2021:879, paragraph 129), so that no analogy can be drawn with the circumstances of the present case, in which it must be determined whether the contested act is subject to an action for annulment within the meaning of Article 263 TFEU.
39      The applicant’s argument that the judgment of 28 October 2021,
Vialto Consulting v Commission, (C‑650/19 P, EU:C:2021:879) supports the view that the Commission acted in this case in the exercise of its powers as a public authority must therefore be rejected.
40      In addition, the applicant’s argument, set out in paragraph 27 of its observations on the plea of inadmissibility and lack of jurisdiction, that if it cannot have the contested act annulled before the Courts of the European Union, it cannot obtain such annulment before the national courts either, and is thus deprived of its right to an effective judicial review, must be rejected. As pointed out in paragraphs 6 and 36 above, disputes arising from the performance of the contract at issue fall within the jurisdiction of the national courts, so that the applicant is not entitled to claim that it is deprived of effective judicial review.
41      It follows from the foregoing that the Court does not have jurisdiction to hear the application for annulment of the contested act and that the present action must be dismissed for that reason.
Costs
42      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1.      The action is dismissed.
2.      Equinoccio-Compañía de Comercio Exterior, SL shall pay the costs.
Luxembourg, 9 June 2022.
E. Coulon
H. Kanninen
Registrar
President
*      Language of the case: English.