ORDER OF THE GENERAL COURT (First Chamber)
28 November 2024 (*)
( Action for annulment – Directive 2014/25/EU – Procurement procedures of entities operating in the water, energy, transport and postal services sectors – Request to establish that Directive 2014/25 does not apply to public procurement in the field of railway passenger transport in Sweden – Article 35(1) of Directive 2014/25 – Letter from the Commission requesting additional information – Act not open to challenge – Inadmissibility )
In Case T‑427/23,
SJ AB, established in Stockholm (Sweden), represented by J. Karlsson and M. Johansson, lawyers,
applicant,
v
European Commission, represented by G. Wils, S. Baches Opi and G. Gattinara, acting as Agents,
defendant,
THE GENERAL COURT (First Chamber),
composed, at the time of deliberation, of R. Mastroianni, acting as President, I. Gâlea and S.L. Kalėda (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, SJ AB, seeks annulment of the purported decision of the European Commission contained in the letter sent by the latter to the former on 10 May 2023 requesting updated information from the applicant following the judgment of 1 February 2023, SJ v Commission (T‑659/20, not published, EU:T:2023:32; ‘the annulment judgment’).
Background to the dispute
2        The applicant is a public undertaking owned by the Kingdom of Sweden. It is active in the railway passenger transport sector.
3        On 13 December 2019, the applicant submitted to the Commission a request under Article 35(1) of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243) seeking to establish that that directive did not apply to public procurement in the field of railway passenger transport in Sweden, as an activity relating to the operation of networks for the purposes of Article 11 of that directive (‘the request for exemption of 13 December 2019’).
4        On 2 July 2020, the Commission adopted Implementing Decision (EU) 2020/1193 on the applicability of Article 34 of Directive 2014/25 to railway passenger transport in Sweden (OJ 2020 L 262, p. 18; ‘the partial exemption decision’). Article 1 of that decision provided that Directive 2014/25 was not to apply to contracts awarded by contracting entities and intended to enable activities related to the provision of railway passenger services under a public service obligation to be carried out in the territory of Sweden. Under Article 2 of that decision, Directive 2014/25 was to continue to apply to contracts awarded by contracting entities and intended to enable activities related to the provision of commercially operated railway passenger services to be carried out in the territory of Sweden.
5        By application lodged at the Court Registry on 30 October 2020, the applicant sought, under Article 263 TFEU, the annulment of Article 2 of the partial exemption decision.
6        By the annulment judgment, the Court upheld the action and, consequently, annulled Article 2 of the partial exemption decision on the ground of infringement of the applicant’s right to be heard.
7        By letter of 20 March 2023, the Commission informed the applicant that, if it wished, following the annulment judgment, to submit a new request for exemption under Article 35(1) of Directive 2014/25, the Commission would assess the request in the context of a new procedure in accordance with the requirements set out in that judgment and would adopt a new implementing decision on the applicability of Article 34 of that directive within the time limits laid down in Article 35(3) thereof.
8        By letter of 30 March 2023, the applicant replied to the Commission that the annulment of Article 2 of the partial exemption decision did not entail the annulment of the request for exemption of 13 December 2019 or of the entirety of the procedure preceding the adoption of the partial exemption decision. It added that, in order to give effect to the annulment judgment in accordance with Article 266 TFEU, the Commission should adopt, within a reasonable time, a new decision on the request for exemption of 13 December 2019 by amending the partial exemption decision, either without taking account of the pricing data which it had itself collected or, in the alternative, by taking due account of the applicant’s observations on those data.
9        By letter of 10 May 2023, the Commission asked the applicant to provide information intended to supplement and update the data contained in the request for exemption of 13 December 2019, with a view to adopting a new implementing decision on that request.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the decision contained in the Commission’s letter of 10 May 2023 requesting additional information from the applicant;
–        order the Commission to pay the costs.
11      The Commission contends that the Court should:
–        declare that there is no longer any need to adjudicate on the action;
–        declare the action inadmissible;
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
12      Under Article 129 of the Rules of Procedure of the General Court, on a proposal from the Judge-Rapporteur, the Court may, at any time, of its own motion, after hearing the parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.
13      In the present case, the Court, taking the view that it has sufficient information from the material in the case file, has decided to give a decision without taking further steps in the proceedings.
14      Pursuant to the first sentence of the first paragraph of Article 263 TFEU, the EU judicature is to review the legality of legislative acts, of acts of the Council of the European Union, of the Commission and of the European Central Bank (ECB), other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties.
15      In order to ascertain whether measures constitute acts against which an action for annulment may be brought under Article 263 TFEU, it is necessary to look to their substance, as the form in which they are cast is, in principle, immaterial in that respect (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9).
16      It is settled case-law that only measures which produce binding legal effects capable of affecting the interests of third parties by bringing about a distinct change in their legal situation constitute acts in respect of which an action for annulment may be brought (see, to that effect, judgments of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 42; of 2 March 1994, Parliament v Council, C‑316/91, EU:C:1994:76, paragraph 8; and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36).
17      An act of a purely informative nature can neither affect the interests of the addressee nor change his or her legal position compared with the situation prior to receipt of that act (see, to that effect, order of 4 October 2007, Finland v Commission, C‑457/06 P, not published, EU:C:2007:582, paragraph 36).
18      Moreover, in the case of acts drawn up in several procedural stages, only the measure definitively laying down the position of the competent EU institution, body, office or agency at the end of the procedure, to the exclusion of intermediate measures whose aim is to prepare that final measure and which do not produce independent legal effects, is in principle capable of forming the subject matter of an action for annulment (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10; of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraphs 43 and 46; and of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 103).
19      In addition, an intermediate measure is also not capable of forming the subject matter of an action if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure will provide sufficient judicial protection (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12, and of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 53).
20      By its letter of 10 May 2023, the Commission took note, first of all, of the fact that the applicant did not intend to submit a new request for exemption. Next, it informed the applicant that it would take a decision on the request for exemption of 13 December 2019. It also took the view that the new decision which it was required to adopt would have to take account of the current situation in the commercially operated railway passenger services markets in Sweden and be based on the most recent available information for 2019, 2020, 2021 and 2022. Consequently, the Commission invited the applicant to supplement its request for exemption of 13 December 2019 and, to that end, asked it to answer 11 questions by providing the Commission, inter alia, with updated data and, if necessary, an updated opinion from the national competition authority or national regulator, as well as any observations relevant to the assessment of those data. Lastly, it stated that once that information had been received, it would initiate the procedure and take a decision within the same time limits as if a new request for exemption had been submitted.
21      The applicant argues that, by that letter, the Commission decided, first, not to adopt a new implementing decision until it had received the additional information requested and, secondly, to take its decision within the same time limit as that applicable to a new request for exemption. That letter therefore produces binding legal effects vis-à-vis the applicant, by making the adoption by the Commission of an implementing decision on the request for exemption of 13 December 2019 contingent on the compilation and submission by the applicant of a large volume of new information designed to supplement and update that request, and by determining that a decision will be taken within the time limit that would apply had a new request for exemption been submitted.
22      The applicant’s argument cannot succeed.
23      In the first place, it is common ground between the parties that, following the annulment judgment and as the applicant has not withdrawn its request for exemption of 13 December 2019, the onus is on the Commission to adopt a new implementing decision on that request.
24      It must be stated that the letter of 10 May 2023 cannot be regarded as the legal act by way of which the Commission took a decision on the request for exemption of 13 December 2019.
25      In the second place, the fact that, in that letter, the Commission implicitly made the adoption of a new implementing decision contingent on receipt of the information requested does not – assuming it were true – lead to the conclusion that that letter contains an opinion, even a provisional one, on the meaning or content of that future implementing decision (see, to that effect, order of 24 June 2014, Léon Van Parys v Commission, T‑603/13, not published, EU:T:2014:610, paragraph 28).
26      In the third place, the fact that, in its letter of 10 May 2023, the Commission asked the applicant for additional information in order to adopt a new implementing decision does not support the proposition that, to that extent, that letter produces binding legal effects. In so doing, the Commission merely asked the applicant to perform certain actions; it did not require the applicant to carry out those actions by, for example, issuing an instruction to that effect.
27      In the fourth place, in the letter of 20 March 2023, the Commission stated that it would adopt a new implementing decision within the time limits laid down in Article 35(3) of Directive 2014/25. Thus, by stating, in its letter of 10 May 2023, that it would take a decision – once the additional information requested had been received – within the same time limits as those applying to a new request for exemption, the Commission was merely informing the applicant of its interpretation, in the present case, of Article 35(3) of Directive 2014/25, relating to the time limit within which it is required to decide on a request for exemption. Therefore, that communication merely provides information as to the manner in which the Commission interprets Article 35(3) of Directive 2014/25 and does not produce any binding legal effects, in the light of the case-law cited in paragraph 17 above.
28      In the fifth place, even if the Commission had, by its letter of 10 May 2023, (i) made the adoption of a new implementing decision contingent on receipt of the information requested and (ii) stated that it would take a decision – once that information had been received – within the time limit applying to the submission of a new request for exemption, suffice it to note that those circumstances do not alter the situation prior to that letter being sent, a situation that could only be altered, as is clear from the case-law cited in paragraph 18 above, by a new implementing decision on the request for exemption (see, to that effect, order of 24 June 2014, Léon Van Parys v Commission, T‑603/13, not published, EU:T:2014:610, paragraph 29).
29      In the sixth and last place, in the light of the case-law cited in paragraph 19 above, it has not been shown that any illegalities allegedly vitiating the letter of 10 May 2023 could not be pleaded in an action brought against the implementing decision which the Commission will be required to adopt.
30      Contrary to the applicant’s assertions, it will, if necessary, be able to put forward, in support of an action for annulment of the future implementing decision which the Commission will have to adopt, the pleas in law on which it relies in the present action. Thus, the alleged illegality affecting the letter of 10 May 2023 may be relied on in support of an action against the final decision, namely the new implementing decision on the applicant’s request for exemption, for which that letter represents a preparatory step. In those circumstances, any action which may be brought against that decision terminating the procedure will provide sufficient judicial protection, in accordance with the case-law cited in paragraph 19 above.
31      Consequently, it follows from paragraphs 23 to 30 above that the letter of 10 May 2023 does not constitute a challengeable act, since one of its elements does not produce binding legal effects capable of affecting the applicant’s interests by bringing about a distinct change in its legal situation, within the meaning of the case-law cited in paragraph 16 above.
32      Consequently, the action must be dismissed in its entirety as inadmissible.
Costs
33      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.      SJ AB shall pay the costs.
Luxembourg, 28 November 2024.
V. Di Bucci
R. Mastroianni
Registrar
Acting President
*      Language of the case: English.