ORDER OF THE COURT (Eighth Chamber)

27 June 2022 ( )

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Article 263 TFEU – Acts which may be the subject of an action before the EU Courts – Pre-accession assistance – Legal situation forming part of contractual relationships governed by the national law designated by the contracting parties – National public procurement – Letter from the European Commission concerning the enforcement of a bank guarantee requested by the national contracting authority)

In Case C‑3/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 3 January 2022,

Equinoccio-Compañía de Comercio Exterior SL, established in Madrid (Spain), represented by D. Luff, avocat, and by R. Sciaudone, avvocato,

appellant,

the other party to the proceedings being:

European Commission,

defendant at first instance,

THE COURT (Eighth Chamber),

composed of N. Jääskinen, President of the Chamber, N. Piçarra 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 22 October 2021, Equinoccio-Compañía de Comercio Exterior v Commission (T‑22/21, not published, EU:T:2021:743; ‘the order under appeal’), by which that court dismissed the action for annulment of the European Commission’s letter of 5 November 2020, with 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 measure at issue’).

Background to the proceedings

2 The background to the dispute is set out as follows in paragraphs 1 to 12 of the order under appeal:

‘1 The applicant, Equinoccio Compañía de Comercio Exterior, SL, is a company incorporated under Spanish law which provides advisory services to undertakings and entities in the public and private sectors.

2 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.

3 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.

4 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 in question”).

5 It is apparent from Article 40.4 of the special conditions of the contract in question that any dispute arising from the performance of that contract falls within the exclusive jurisdiction of the courts of Ankara [(Turkey)], 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.

6 In accordance with the provisions of Article 30 of the general conditions set out in Annex I to the contract in question, on 20 July 2017 the consortium provided a bank guarantee in favour of the contracting authority in the amount of EUR 689 440. 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.

7 During the performance of the contract in question, 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.

8 On 18 August 2017, the contracting authority suspended the execution of the contract in question, 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 the general conditions.

9 On 29 November 2017, the contracting authority sent a notice of termination of the contract in question to the applicant.

10 Following the failure of the conciliation procedure provided for in Article 40 of the general conditions set out in Annex I to the contract in question and the actual termination of that contract, the contracting authority requested the enforcement of the bank guarantee.

11 By letter of 5 November 2020 (“the contested measure”), 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.

12 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 in question had been fully covered by the Turkish budget.’

The action before the General Court and the order under appeal

3 By application lodged at the Registry of the General Court on 14 January 2021, the appellant brought an action for annulment of the measure at issue.

4 By separate document lodged at the Registry of the General Court on 21 April 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 2 June 2021.

5 By the order under appeal, after noting that the measure 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 Under Article 181 of its Rules of Procedure, where an 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, without opening the oral procedure, or, where appropriate, without serving notice of the appeal on the defendant.

8 It is appropriate to apply that provision in the context of the present appeal.

9 On 19 April 2022, the Advocate General took the following position:

‘…

4. In support of its appeal, the appellant relies on three grounds of appeal, alleging, first, an error of law on the part of the General Court in so far as it held th at the Commission had not acted in the exercise of its powers as a public authority, second, infringement of Article 263 TFEU and of the right to effective judicial review in so far as the General Court held that the measure at issue formed part of the contract in question and, third, an error of law concerning the misrepresentation of the Commission’s role in the approval and performance of the bank guarantee.

The first ground of appeal

5. By its first ground of appeal, the appellant complains that the General Court erred in law in finding, in paragraphs 31 to 34 of the order under appeal, that the Commission had not exercised its powers as a public authority.

6. The appellant asserts, first, that the award of a public contract under Regulation No 1085/2006 does not preclude the exercise of powers as a public authority by the Commission when it intervenes in a contract concluded with the contracting authority in order to use its powers and, therefore, does not impede the judicial review of the decisions that it takes in the context of those interventions, which are administrative in nature.

7. Second, it submits that, although the General Court referred, in paragraph 23 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 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.

8. Third, the appellant submits that it follows from the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879), that interventions on the part of the Commission which have a financial impact on the decentralised contracts allocated under the pre-accession instrument (“the IPA”) fall within the scope of the exercise of powers as a public authority.

9. In that regard, as regards the appellant’s argument that the measure 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 Courts on the basis of Article 263 TFEU only if 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 2016, 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).

10. 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 2016, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraphs 17 and 18).

11. 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.

12. As the General Court noted in paragraphs 30 and 27 respectively of the order under appeal, the measure at issue does not constitute an administrative act covered by Article 288 TFEU, the annulment of which may be sought before the EU judicature under Article 263 TFEU, but is based on the terms of the contract in question, since only those terms define the conditions for the Commission’s intervention. Consequently, that measure 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 between the applicant and the contracting authority (see, by analogy, judgment of 9 September 2016, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraphs 23 and 24).

13. That finding is supported by the case-law of the Court of Justice, to the effect that public contracts awarded by non-member 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 EU financing are met. Moreover, the undertakings which submit tenders for or are awarded the contract in question 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, judgment of 14 January 1993, Italsolar v Commission, C‑257/90, EU:C:1993:8, paragraph 22; order of 4 July 2013, Diadikasia Symvouloi Epicheiriseon v Commission and Others, C‑520/12 P, not published, EU:C:2013:457, paragraph 34; and judgment of 28 October 2021, Vialto Consulting v Commission, C‑650/19 P, EU:C:2021:879, paragraph 125).

14. In that regard, the General Court found, in paragraph 33 of the order under appeal, that the instruction to countersign the enforcement of the bank guarantee was given following an assessment, carried out by the Turkish authorities at the Commission’s request, concerning the performance of the contract in question, and not following an assessment carried out by the Commission.

15. Furthermore, as regards the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879), relied on by the appellant, 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.

16. In the light of the foregoing, the first ground of appeal must be rejected as being manifestly unfounded.

The second ground of appeal

17. By its second ground of appeal, the appellant maintains, first, that the General Court erred in relying on the order of 25 March 2015, Borde and Carbonium v Commission (T‑314/14, not published, EU:T:2015:197), in order to find, in paragraph 25 of the order under appeal, that 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. In the order of 25 March 2015, Borde and Carbonium v Commission (T‑314/14, not published, EU:T:2015:197), the General Court did not rule out the possibility that a measure forming part of a purely contractual framework might be administrative in nature and be the subject of an action before the EU judicature.

18. Second, the appellant submits that the fact that a measure falls within the scope of a contract does not preclude it from being administrative in nature. It maintains that it is apparent from the judgment of 28 October 2021, Vialto Consulting v Commission (C‑650/19 P, EU:C:2021:879), that an act adopted by the Commission in its role as the entity responsible for financial support for contracts financed under the IPA is an administrative act.

19. Third, the appellant claims that the General Court infringed Article 263 TFEU in so far as it failed to take into consideration the legal effects of the measure at issue on the appellant.

20. Fourth, the appellant claims that the effect of the order under appeal is to deprive it of the right to effective judicial review. If it had challenged the liquidation of the bank guarantee before the Turkish courts, the latter would have held that they had no jurisdiction to assess the legality of the measure at issue.

21. In that regard, in the first place, contrary to what the appellant claims, the General Court was fully entitled to rely on the order of 25 March 2015, Borde and Carbonium v Commission (T‑314/14, not published, EU:T:2015:197), in order to find, in paragraph 25 of the order under appeal, that 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.

22. In paragraphs 27 to 29 of the order under appeal, the General Court found, in essence, that that was indeed the case with regard to the measure at issue. It forms part of the context of the contract between the contracting authority and the appellant, in that its purpose is the enforcement of the bank guarantee, in accordance with the rules laid down in the general conditions and the template annexed to the contract in question. That line of argument must, therefore, be rejected.

23. In the second place, 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 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 succeed.

24. In the third 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 is generally available against 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:2021:575, paragraphs 71 and 72 and the case-law cited).

25. In paragraph 30 of the order under appeal, the General Court held that the measure at issue does not constitute an administrative act covered by Article 288 TFEU, the annulment of which may be sought before 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 Turkey 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 participation in that private law contractual relationship. Therefore, having thus found that the measure 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 measure with regard to the appellant. It follows that that argument put forward by the appellant must be rejected.

26. In the fourth place, as regards the appellant’s argument that the order under appeal infringes its right to effective judicial review, it must be borne in mind that, although the principle of effective judicial protection is a general principle of EU law, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, it is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to admissibility of direct actions before the Courts of the European Union. Thus, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 97 and 98).

27. Suffice it to note that, since, first, the measure at issue is not an administrative act the judicial review of which falls within the jurisdiction of the EU judicature under Article 263 TFEU and, second, it is apparent from the contractual terms of the agreement in question that disputes arising from its performance fall within the exclusive jurisdiction of the courts of Ankara and that the applicable law is Turkish law, the appellant is not deprived of its right to effective judicial review. Moreover, as the General Court correctly pointed out in paragraph 35 of the order under appeal, neither the contract in question nor the bank guarantee contains any clause conferring jurisdiction on the General Court. The appellant’s argument therefore cannot succeed.

28. It is clear from the above that the second ground of appeal must be rejected as being manifestly unfounded.

The third ground of appeal

29. By its third ground of appeal, the appellant complains that, in paragraph 30 of the order under appeal, the General Court misinterpreted the relevant legal framework as regards the role of the Commission in approving and enforcing the bank guarantee. In that regard, the appellant states that that guarantee was not a free choice of the parties to the contract in question and that the Commission was not involved accidentally. On the contrary, the Commission exercised its public supervisory powers from the time when the bank guarantee was established and by instructing the EU Delegation to countersign it. In that regard, it is apparent from the Commission document entitled “Procurement and Grants for European Union external actions – A Practical Guide”, in the version adopted in April 2014, that a bank-guarantee template annexed to that practical guide should be used and forms part of the draft contract. That draft is contained, furthermore, in the tender dossier, the content of which is therefore required by the Commission. Thus, according to the appellant, the Commission was informed of the requirement for countersignature and decided to exercise its powers as a public authority in relation to the content of the guarantee.

30. In that regard, it is apparent from the order under appeal that the General Court correctly interpreted the relevant legal framework. As is apparent from paragraphs 27 to 30 of that order and from the considerations set out in paragraphs 11 to 14 and 21 of this position, the bank guarantee is based on the terms of the contract in question, so that the role of the Commission in the enforcement of that guarantee forms part of that private law contractual relationship and is inseparable from it. Accordingly, the Commission did not exercise its powers as a public authority.

31. The third ground of appeal must therefore be rejected as manifestly unfounded.

32. 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 of Justice, 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 made 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, 27 June 2022.

A. Calot Escobar N. Jääskinen