28 February 2023 (*)

(Interim relief – Public supply contracts – Trans-European Services for Telematics between Administrations (TESTA) – Application for interim measures – No prima facie case)

In Case T‑170/22 R-RENV,

Telefónica de España, SA,

established in Madrid (Spain), represented by F. González-Díaz and J. Blanco Carol, lawyers, and by P. Stuart, Barrister,

applicant,

European Commission,

represented by L. André and M. Ilkova, acting as Agents,

defendant,

supported by

BT Global Services Belgium BV,

established in Machelen (Belgium), represented by V. Dor, A. Lepièce and M. Vilain XIIII, lawyers,

intervener,

having regard to the order of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published),

having regard to the order of 22 November 2022, Telefónica de España v Commission (C‑478/22 P(R), EU:C:2022:914),

makes the following

By its application under Articles 278 and 279 TFEU, the applicant, Telefónica de España, SA, seeks, first, suspension of the operation of the decision of the European Commission of 21 January 2022 relating to the tendering procedure DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’, informing it that its tender had not been successful in the public procurement procedure and announcing the imminent signing of a contract with the successful tenderer (‘the contested decision’) and, secondly, an order requiring the Commission to suspend the signing of that contract.

Background to the dispute and forms of order sought

On 23 May 2019, by a contract notice published in all the official languages of the European Union in the Supplement to the Official Journal of the European Union (OJ 2019/S, 099-238502), the Commission launched the restricted call for tenders DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’.

The subject of that call for tenders is the conclusion of an interinstitutional framework contract with the successful tenderer for the provision of a secure and highly available network infrastructure.

On 5 July 2019, a consortium, composed of the applicant and two other operators (‘the consortium’), submitted its request to participate in the tendering procedure.

On 13 February 2020, in the context of the second stage of the tendering procedure, the Commission sent a notification to a shortlist of candidates who had complied with the technical specifications in order to participate in the call for tenders. On that occasion, it also published, in English, all the documentation relating to the call for tenders.

On 22 July 2020, the consortium submitted a tender under that tendering procedure.

On 18 January 2022, the Commission adopted the award decision in accordance with the recommendations of the evaluation committee.

By letter of 21 January 2022, the Commission notified the applicant, in its capacity as representative of the consortium, of the contested decision. In that letter, it informed the applicant, inter alia, that the consortium’s tender had not been selected because it had not been considered the most economically advantageous tender. In addition, it sent the applicant, in Annex 1 to that letter, the reasons for the rejection of its tender, including the score awarded to the consortium’s tender in the light of the award criteria and, in Annex 2 to that letter, the name of the successful tenderer, the characteristics and relative advantages of the successful tender, the overall price of that tender and the value of the contract. In addition, in the same letter, it informed the applicant that the standstill period, that is to say, the 10-day period during which the contracting authority is to refrain from signing the contract with the successful tenderer, would start to run on the day following the date on which the letter in question was sent and that, if its requests or observations justified it, the Commission reserved the right to suspend the signing of the framework contract in order to carry out a more detailed examination.

On 31 January 2022, the applicant submitted observations, in which it identified a certain number of errors allegedly made by the Commission in the evaluation of the tenders.

On 1 February 2022, following the applicant’s observations, the Commission informed all tenderers that it had decided to suspend the signing of the framework contract pending an additional examination, in accordance with point 35.1 of Annex I to Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014 and (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

On 21 March 2022, the Commission informed the applicant that it had concluded the additional examination commenced on 1 February 2022 and that it had identified two errors in the technical evaluation of the consortium’s tender. In that letter, it stated that the authorising officer had confirmed his initial award decision given that the ranking of the tenders had not changed and that the correction of the errors in the technical evaluation had had no effect on the legal situation of the consortium.

By application lodged at the General Court Registry on 31 March 2022, the applicant brought an action for annulment of the contested decision.

By separate document lodged at the Court Registry on the same day, the applicant lodged the present application for interim measures, in which it claims that the judge hearing the application for interim measures should:

–order the Commission to suspend the award of the contracts in the context of the call for tenders at issue until the Court has given a final ruling on the main action;

–order the Commission to suspend the signing of a contract in that tendering procedure;

–grant any other interim measures that the judge hearing the application for interim measures considers appropriate in the circumstances;

–order the Commission to pay the costs incurred by the applicant in connection with that application.

In its observations on the application for interim measures, which were lodged at the Registry of the General Court on 29 April 2022, the Commission contends that the judge hearing the application for interim measures should:

–dismiss the third head of claim as inadmissible;

–refuse the application for suspension of operation;

–refuse in any event the interim measures sought as unfounded;

–order the applicant to pay the costs.

In its observations, lodged at the Court Registry on 7 December 2022, BT Global Services Belgium BV, which was granted leave to intervene in support of the Commission, contends that the judge hearing the application for interim measures should:

–refuse the application for interim measures as unfounded;

–order the applicant to pay the costs.

Law

General considerations

It is apparent from a combined reading of Articles 278 and 279 TFEU, and of Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures under Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

The first sentence of Article 156(4) of the Rules of Procedure requires applications to state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for’.

The judge hearing an application for interim measures may thus order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre‑established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

In addition, it should be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute, and under Article 76(d) of the Rules of Procedure, to which Article 156(5) of those rules refers, the application must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see order of 9 July 2019, Scaloni and Figini v Commission, T‑158/18, not published, EU:T:2019:491, paragraph 29 and the case-law cited).

Having regard to the material in the case file, the judge hearing the application for interim measures considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.

In the circumstances of the present case, it is appropriate to begin by examining whether the condition requiring that there be a prima facie case is satisfied.

The condition relating to a prima facie case

It must be borne in mind that the condition requiring that there be a prima facie case is satisfied where there is, at the stage of the interim proceedings, a major legal disagreement the solution to which is not immediately obvious, so that the action is not prima facie without reasonable substance. Since the purpose of the interim proceedings is to guarantee that the final decision to be taken is fully effective, in order to avoid a lacuna in the legal protection ensured by the Courts of the European Union, the judge hearing the application for interim measures must restrict his or her assessment to the prima facie merits of the grounds put forward in the main proceedings in order to ascertain whether there is a sufficiently high probability of success of the action (see order of 8 April 2014, Commission v ANKO, C‑78/14P-R, EU:C:2014:239, paragraph 15 and the case-law cited).

In that context, account must also be taken of the particular features of litigation relating to public procurement.

It is apparent from the case-law that, having regard to the requirements which follow from the effective protection which must be guaranteed in public procurement matters, where an unsuccessful tenderer is able to show that there is a particularly serious prima facie case, it cannot be required to establish that the rejection of its application for interim measures risks causing it irreparable harm, otherwise the effective judicial protection which it enjoys under Article 47 of the Charter of Fundamental Rights of the European Union would be undermined in a manner that is both excessive and unjustified (order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 41).

However, that easing of the requirements applicable to the assessment of the existence of urgency, justified by the right to an effective judicial remedy, applies only during the pre-contractual phase, provided that the 10-day standstill period provided for in Article 175 of Regulation 2018/1046 is respected. Where the contract has been concluded with the successful tenderer after the expiry of that period and before the application for interim measures was lodged, the abovementioned easing is no longer justified (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraphs 38 and 42).

Thus, in the cases referred to in paragraph 26 above, where the unsuccessful tenderer is able to demonstrate the existence of a particularly serious prima facie case, the criteria for assessing the condition relating to urgency must be eased, so that only the risk of serious harm occurring need be demonstrated (see, to that effect, order of 22 November 2022, Telefónica de España v Commission, C‑478/22 P(R), EU:C:2022:914, paragraph 69 and the case-law cited).

The condition requiring that there be a particularly serious prima facie case is satisfied where the interim proceedings show that the defendant has committed an unlawful act which appears, prima facie, to be sufficiently manifest and serious, the production or extension of whose effects must, in the interests of the applicant, be prevented as soon as possible (see order of 17 July 2015, GSA and SGI v Parliament, T‑321/15 R, not published, EU:T:2015:522, paragraph 31 and the case-law cited).

In the present case, as is apparent from the order of 22 November 2022, Telefónica de España v Commission (C‑478/22 P(R), EU:C:2022:914), the conditions referred to in paragraph 26 above are satisfied. Consequently, if the applicant is able to demonstrate the existence of a particularly serious prima facie case, the criteria for assessing the condition relating to urgency should be relaxed. On the other hand, if the applicant shows that there is a prima facie case which cannot, however, be regarded as particularly serious, it is necessary to examine whether the conditions referred to in paragraph 18 above are satisfied.

Consequently, it will be examined whether the applicant has demonstrated the existence of a prima facie case and, as the case may be, the particularly serious nature of that prima facie case.

In that regard, in support of the application for interim measures, the applicant puts forward six pleas in law and sets out, in a separate part of that application entitled ‘G. The Commission’s breaches in its evaluation of the offer’ (‘Section G’), a series of 45 technical complaints, which refer to the evaluation of the applicant’s tender in the light of a list of questions in the technical specifications.

The first plea in law

The applicant claims, in essence, that the Commission infringed the principle of transparency and made errors of fact and of assessment by penalising the consortium for having allegedly failed to provide information on several occasions, when the technical specifications had never required that the tenderers provide that information, or by not correctly scoring the consortium’s tender in relation to the information provided.

In order to substantiate the claims put forward in the context of the present plea, the applicant makes a general reference to Section G, in which another general reference is made to the application initiating proceedings in the main proceedings.

34The Commission and the intervener dispute the applicant’s claims.

35It should be borne in mind in that regard that, according to settled case-law, the contracting authority has a broad discretion with regard to the factors to be taken into account when deciding to award a contract following an invitation to tender, and the Court’s review must be limited to verifying observance of the rules governing the procedure and statement of reasons, the material accuracy of the facts and that there has been no manifest error of assessment or misuse of powers. The contracting authority has this broad discretion throughout the procurement procedure, including in the choice and evaluation of the selection and award criteria (see judgment of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 31 and the case-law cited).

36In order to establish that in the assessment of the facts the contracting authority committed such a manifest error as to justify annulment of the decision rejecting a tender, the evidence adduced by the applicant must be sufficient so as to render implausible the assessments made in the decision at issue. In other words, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicant, the assessment being challenged may be accepted as true or valid (see judgment of 7 June 2017, Blaž Jamnik and Blaž v Parliament, T‑726/15, EU:T:2017:376, paragraph 38 and the case-law cited).

37In the present case, in order to call into question the Commission’s assessment of the consortium’s tender, the applicant confines itself, in support of its claims, to making a general reference to Section G, in which another general reference is made to the application initiating proceedings in the main proceedings.

38However, first, a general reference to the questions in Section G cannot compensate for the lack of precision in the context of the present plea and of evidence put forward in support thereof capable of rendering implausible the assessment carried out by the Commission.

39It should be borne in mind that the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea which it puts forward, and the Court cannot be compelled, owing to a lack of structure in the application or rigour on the part of the applicant, to reconstruct the legal articulation intended to support a plea by bringing together various sparse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary to the proper administration of justice, the principle that the parties delimit the scope of the proceedings and the defendant’s rights of defence (see order of 11 March 2021, Techniplan v Commission, T‑426/20, not published, EU:T:2021:129, paragraph 20 and the case-law cited).

40Secondly, nor can the general reference to the application initiating proceedings in the main proceedings made in Section G compensate for the lack of precision in the context of the present plea and of evidence put forward in support thereof capable of rendering implausible the assessment carried out by the Commission. The same holds a fortiori true for the general reference made in paragraph 19 of the application for interim measures, which precedes the submission of the pleas in law relied on in support of that application. It is apparent from the case-law that mere references to the application for annulment of the contested decision cannot make up for the absence of any explanation of the grounds of the application for annulment which establish that there is a prima facie case for the application for suspension of operation (order of 12 October 2000, Greece v Commission, C‑278/00 R, EU:C:2000:565, paragraphs 25 to 27).

41In those circumstances, since the allegations made by the applicant in the context of the present plea are extremely vague, the Commission is not in a position to prepare its defence and the Court is not in a position to exercise its power of review. Accordingly, those arguments must be rejected as inadmissible in view of Article 76(d) of the Rules of Procedure.

42In any event, even if the elements put forward by the applicant in Section G were correct, which the judge hearing the application for interim measures is not in a position to determine in the present proceedings, the applicant has failed to establish the extent to which the alleged errors are of such magnitude and importance as to render the Commission’s assessment implausible. The EU judicature cannot be required, particularly when it adjudicates in the context of an urgent procedure, to substitute its analysis of the tenders for that carried out by the contracting authority (see, to that effect, order of 26 May 2021, OHB System v Commission, T‑54/21 R, not published, EU:T:2021:292, paragraph 78).

43It follows from the foregoing that the present plea is not capable of demonstrating the existence of a prima facie case nor, a fortiori, that of a particularly serious prima facie case.

The second plea in law

44The applicant submits, in the first place, that, when evaluating the tender, the Commission penalised the consortium on several occasions, criticising it for not having provided added value and, in the second place, that the Commission departed from the rules established during the procedure, thereby infringing the principles of transparency and legal certainty.

45By way of substantiation for the arguments put forward in the context of the present plea, the applicant merely makes a general reference in support thereof to Section G, in which another general reference is made to the application initiating proceedings in the main proceedings.

46The Commission and the intervener dispute the applicant’s arguments.

47As regards the applicant’s argument that the Commission penalised the consortium on several occasions by criticising it for not having provided added value, for the reasons set out in paragraphs 39 and 40 above, the general references to Section G and to the application initiating proceedings in the main proceedings cannot compensate for the lack of precision in the context of the present plea and of the evidence put forward in support thereof. Since that argument is extremely vague, it must therefore, in view of the case-law cited in paragraph 20 above, be rejected as inadmissible.

48In any event, in accordance with the case-law referred to in paragraph 42 above, even if the elements put forward by the applicant in Section G were correct, the applicant has failed to establish the extent to which the alleged errors, even if proven, are of such magnitude and importance as to render the Commission’s assessment implausible. The EU judicature cannot be required, particularly when it adjudicates in the context of an urgent procedure, to substitute its analysis of the tenders for that carried out by the contracting authority.

49Furthermore, as regards the applicant’s argument that the Commission departed from the rules established during the procedure, suffice it to note that that argument is not supported by any evidence.

50It follows from the foregoing that the present plea is not capable of demonstrating the existence of a prima facie case nor, a fortiori, that of a particularly serious prima facie case.

The third plea in law

51The applicant submits, first, that the award criteria and the Commission’s interpretation of those criteria are ambiguous, uncertain and therefore unlawful. In its view, that led the Commission to penalise the consortium for failing to provide information which had never been requested in the technical specifications, to opt not to allocate points to the consortium’s tender due to an alleged lack of added value and to fail to score the tender correctly in reference to the information provided, thereby committing errors of law, fact and assessment in its scoring of the tender.

52Secondly, the applicant claims that the Commission’s assessment was based on elements which were never disclosed to the consortium, which prevented it from exercising its rights of defence. The Commission thus infringed its obligation to inform the consortium of all the elements which it took into account in order to identify the most economically advantageous tender.

53In support of the arguments put forward in the context of the present plea, the applicant makes a general reference to Section G, in which another general reference is made to the application initiating proceedings in the main proceedings.

54The Commission and the intervener dispute the applicant’s arguments.

55In the first place, as regards the applicant’s argument that the award criteria and the Commission’s interpretation of those criteria are ambiguous and uncertain, suffice it to note that the applicant does not identify the award criteria which, in its view, must be regarded as unlawful. Nor does the applicant identify the factors taken into account by the Commission in selecting the successful tender which were never disclosed to the consortium.

56It is clear that, in support of the present argument, the applicant merely makes general and abstract assertions along with general references to Section G and the application initiating proceedings in the main proceedings.

57For the reasons set out in paragraphs 39 and 40 above, the general references made to Section G and to the application initiating proceedings in the main proceedings cannot compensate for the lack of precision in the context of the present plea and of the evidence put forward in support thereof. Since the present argument is extremely vague, it must therefore, in the light of the case-law cited in paragraph 20 above, be rejected as inadmissible.

58In any event, in accordance with the case-law referred to in paragraph 42 above, even if the elements put forward by the applicant in Section G were correct, the applicant has failed to establish the extent to which the alleged errors, even if proven, are of such magnitude and importance as to render the Commission’s assessment implausible. The EU judicature cannot be required, particularly when it adjudicates in the context of an urgent procedure, to substitute its analysis of the tenders for that carried out by the contracting authority.

59In the second place, as regards the applicant’s argument that the Commission’s assessment was based on elements which were never disclosed to the consortium, it should be noted, for the sake of completeness, that Article 170(3)(a) of Regulation 2018/1046 provides that, subject to certain exceptions, the contracting authority is to notify any tenderer whose tender is compliant with the procurement documents and who makes a request in writing of the name of the tenderer to whom the contract is awarded and the characteristics and relative advantages of the successful tender, the price paid or the contract value. In addition, the last subparagraph of that paragraph provides that ‘the contracting authority may decide to withhold certain information where its release … would prejudice the legitimate commercial interests of economic operators or might distort fair competition between them’.

60Similarly, the first indent of Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) provides that the institutions are to refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property.

61In that regard, it should be noted that the Court has repeatedly held that the principal objective of the EU public procurement rules is to ensure the existence of undistorted competition and that, in order to achieve that objective, it is important that the contracting authorities do not release information relating to contract award procedures which could be used to distort competition, whether in an ongoing procurement procedure or in subsequent procedures. Since public procurement procedures are founded on a relationship of trust between the contracting authorities and economic operators, those operators must be able to communicate any relevant information to the contracting authorities in the procurement process, without fear that the authorities will communicate to third parties items of information whose disclosure could be damaging to those operators (judgments of 14 February 2008, Varec, C‑450/06, EU:C:2008:91, paragraphs 34 to 36, and of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 115).

62In that context, according to the case-law, the contracting authority cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, secondly, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see judgment of 17 September 2015, Ricoh Belgium v Council, T‑691/13, not published, EU:T:2015:641, paragraph 41 and the case-law cited).

63Article 170 of Regulation 2018/1046 does not preclude as a matter of principle a contracting authority from performing its obligation to state reasons by means of succinct comments on the successful and the rejected tender (see, to that effect, judgment of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 95).

64However, in order to meet the requirements of Article 170 of Regulation 2018/1046, the contracting authority’s comments must be sufficiently precise to enable the applicant to ascertain the matters of fact and law on the basis of which the contracting authority rejected its offers and accepted those of other tenderers (see, to that effect, judgment of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 96).

65In the present case, first, it is apparent from the applicant’s pleadings, in particular Annexes A.12 and A.13 to the application for interim measures, that, in point 4.4 of the tendering specifications, in the versions dated 23 May 2019 and 6 June 2019, the Commission expressly reiterated the rules applicable to the disclosure of information, in accordance with Article 170 of Regulation 2018/1046. It stated, inter alia, that certain information, which could include, without being limited to, confidential aspects of the tenders, such as unit prices included in the financial tender or technical or trade secrets, would not be disclosed. In addition, in the same point of the tendering specifications, it also stated that the contracting authority could authorise access to certain documents, subject to the conditions and limits laid down in Regulation No 1049/2001.

66Secondly, it is apparent from Annex A.1 to the application for interim measures that, as observed in paragraph 8 above, by the letter of 21 January 2022, the Commission not only communicated to the applicant, in Annex 1 to that letter, the reasons for the rejection of its tender, but also, in Annex 2 to that letter, proactively, before the applicant requested it in writing in accordance with the requirements of Article 170(3) of Regulation 2018/1046, the information required by Article 170(3)(a) of that regulation, namely the name of the successful tenderer, the characteristics and relative advantages of the successful tender, the overall price of that tender and the contract value.

67Thirdly, it is apparent from the Commission’s written pleadings that the applicant did not request additional information or other documents, in the exercise of its right of privileged access to information under Article 170(3) of Regulation 2018/1046.

68It is apparent from the foregoing, first, that it appears prima facie that the Commission did provide the applicant with the information required by Article 170(3)(a) of Regulation 2018/1046, thereby seemingly enabling the applicant to ascertain the matters of fact and of law on the basis of which the contracting authority had rejected its tender and accepted the bid of another tenderer and, secondly, that the applicant did not request additional information in writing, as required by that provision.

69It follows from the foregoing that the present plea is not capable of demonstrating the existence of a prima facie case nor, a fortiori, that of a particularly serious prima facie case.

The fourth plea in law

70The applicant claims that the Commission committed an error of law, as well as errors of fact and assessment, by failing to seek clarification from the consortium, in breach of the principles of sound administration and procedural fairness.

71The applicant states that the Commission erred in limiting itself to asking tenderers to clarify clerical errors. It considers that Article 151 of Regulation 2018/1046 does not limit the contracting authority’s power to ask tenderers to clarify their tenders in writing only where this is necessary to correct obvious clerical errors. It considers that, far from limiting its power, that regulation imposes on the contracting authority the obligation to contact the parties and to request the missing information or the clarification of supporting documents.

72The applicant also submits that the Commission infringed the principles of sound administration and procedural fairness by cancelling the on-site visits which would have enabled it to verify certain parts of the technical offers and to gather additional information to complete the written contributions received.

73In support of the arguments put forward in the context of the present plea, the applicant makes a general reference to Section G, in which another general reference is made to the application initiating proceedings in the main proceedings.

74The Commission and the intervener dispute the applicant’s arguments.

75In the first place, the general references to Section G and to the application initiating proceedings in the main proceedings, for the reasons set out in paragraphs 39 and 40 above, cannot compensate for the lack of precision in the context of the present plea and of the evidence put forward in support thereof. In particular, the applicant does not clearly identify either the errors of fact and of assessment in the scoring of the consortium’s tender that the Commission allegedly made, or the clarifications which the Commission should have requested. The general and abstract statements made in the context of the present plea relating to the scoring of the consortium’s tender must therefore, in the light of the case-law cited in paragraph 20 above, be rejected as inadmissible.

76In the second place, as regards the applicant’s argument that the Commission erred in confining itself to asking tenderers to clarify clerical errors, it should be remembered that, according to recital 89 of Regulation 2018/1046, in accordance with the principle of sound administration, the authorising officer should request clarifications or missing documents while respecting the principle of equal treatment and without substantially changing the application documents. The authorising officer should have the possibility to decide not to do so only in duly justified cases. In addition, the authorising officer should be able to correct an obvious clerical error or request the participant to correct it. Thus, the first paragraph of Article 151 of Regulation 2018/1046 states that the authorising officer responsible may correct obvious clerical errors in application documents after confirmation of the intended correction by the participant. Under the second paragraph of Article 151 of that regulation, where a participant fails to submit evidence or to make statements, the evaluation committee or, where appropriate, the authorising officer responsible is, except in duly justified cases, to ask the participant to provide the missing information or to clarify supporting documents. The third paragraph of that article provides that that information, clarification or confirmation is not to substantially change the application documents.

77According to the case-law on the interpretation of the third paragraph of Article 151 of Regulation 2018/1046, a change which has the effect of rendering admissible a tender which should be rejected due to a failure to comply with an eliminatory criterion can only be regarded as substantial. Furthermore, that article must be read in the light of recital 89 of that regulation, according to which the authorising officer should request clarifications or missing documents, but without substantially changing the application documents and while respecting the principle of equal treatment. It is precisely the latter principle, and the resulting obligation of transparency, which requires the contracting authority to comply with the criteria which it has itself defined. Where, in a tendering procedure, the contracting authority defines the conditions which it intends to impose on tenderers, it places a limit on the exercise of its discretion and cannot subsequently depart from the conditions which it has thus defined in regard to any of the tenderers without being in breach of the principle of equal treatment (see, to that effect, judgment of 6 October 2021, Global Translation Solutions v Parliament, T‑7/20, not published, EU:T:2021:649, paragraph 63 and the case-law cited).

78Thus, it seems prima facie that, in the light of Article 151 of Regulation 2018/1046 and the relevant case-law on the matter, if the Commission were to allow the consortium to correct or clarify its tender beyond the correction of clerical errors, that would lead to a substantial modification of that tender and give rise to an infringement of the principle of equal treatment in relation to the other tenderers. It follows that the present argument cannot succeed in the present proceedings.

79In so far as the applicant relies on an infringement of the principle of sound administration, first, the Commission is correct in stating that it is apparent from Annexes A.14 and A.16 to the application for interim measures that, on 14 August and 27 September 2019, the Commission sent requests for clarification to the consortium, in order to correct, in so far as possible, the clerical errors in the consortium’s request to participate. Secondly, as regards the alleged errors in the consortium’s tender which, according to the applicant, should have been the subject of requests for clarification from the Commission, it follows from paragraph 75 above that they are not sufficiently specified in the application for interim measures. It therefore appears, prima facie, that this complaint must also be rejected.

80In the third place, as regards the applicant’s argument that the Commission infringed the principles of sound administration and procedural fairness by cancelling the on-site validation visits, it is apparent from Section 1.2 of the technical specifications, set out in Annex A.25 to the application for interim measures, that the objective of those on-site visits was to verify the feasibility of compliance with the relevant mandatory requirements and the technical offer. Furthermore, it is also apparent from that section of the technical specifications that the on-site visits form an integral part of the technical offer and accordingly may not be modified at any time once the tender has been submitted.

81It therefore appears, prima facie, that a possible on-site visit could not have been followed by an amendment to the consortium’s tender.

82It is also apparent from Annexes A.26 and A.27 to the application for interim measures that, following that annulment on account of the COVID-19 pandemic, the Commission initially proposed another validation mechanism, namely visual evidence, but that it ultimately decided to reserve the right to organise on-site validation visits following the award of the contract.

83Accordingly, the present argument cannot succeed.

84It follows from the foregoing that the present plea is not capable of demonstrating the existence of a prima facie case nor, a fortiori, that of a particularly serious prima facie case.

The fifth plea in law

85The present plea, by which the applicant alleges that the procurement procedure was vitiated by a series of infringements of certain fundamental principles of EU law, is divided into three parts.

86In the first part, the applicant claims that the Commission erred in law by granting access to the documentation relating to the tendering procedure in English only and by preventing the consortium from submitting its tender in its own language, contrary to Articles 3 and 4 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition, 1952-1958 (I), p. 59), as amended by Council Regulation (EU) No 517/2013 of 13 May 2013 (OJ 2013 L 158, p. 1).

87The applicant adds that, if the consortium had decided to submit its request to participate in Spanish, it would have borne all the risks associated with translation and misinterpretation of the tender documentation. This would have put the consortium at an even greater disadvantage vis-à-vis the successful tenderer, particularly in the context of a procedure where the Commission’s evaluation has confirmed that language issues have had an impact on the scores of the tenders.

88In support of the arguments put forward in this part of the plea, the applicant refers to questions CS‑06 and OC‑10 described in Section G. First, it submits that the Commission erred in subtracting 0.3 points out of the possible 1.5 points, on the ground that the consortium’s tender failed to specify the solution to be implemented for the TESTA environment, even though it contained numerous details of characteristics and components that ‘could’ be used, without confirming which characteristics or components would form part of the solution. In its view, the subsequent explanations provided by the Commission in that regard confirmed the fact that the Commission had penalised the consortium because of the use of modal verbs, notwithstanding the fact that all the elements which could have appeared to be optional due to the use of modal verbs were included in the consortium’s proposal. Secondly, it considers that the Commission conducted a negative assessment of the consortium’s tender, by subtracting 4 points out of the 10 possible points, erroneously assuming that the main data centre was organised as a shared room, not dedicated exclusively for TESTA use, on the ground that the consortium had stated that the space proposed for TESTA would be ‘in data room 150’ instead of indicating that the space proposed ‘is data room 150’.

89In the second part, the applicant submits that the Commission erred in relying on an unreasonably vague notion of added value in order to reserve unlimited discretion for itself, contrary to the principles of transparency and legal certainty.

90In support of the arguments put forward in this part of the plea, the applicant refers to question T‑01 in Section G. It submits that the Commission erred in fact and in its assessment of the facts and infringed the principles of transparency, legal certainty and the rights of the defence by subtracting 18 points out of the 60 possible points on the ground that the answer to that question did not provide sufficient added value, even though the tender included information on all the elements requested. It adds that, if the Commission considered certain information to be so relevant that the failure to provide it would lead to the award of negative points, it should have included it in the question and/or sought additional clarifications.

91In the third part, the applicant claims that the Commission erred in not granting the consortium full access to the file, thereby infringing the rights of the defence and the principle of sound administration.

92In particular, the consortium did not receive all the materials necessary to exercise effectively its rights of defence, in particular access to a copy of the successful tender. According to the applicant, the choice of that tender is based on elements of the technical offer of the tenderer concerned which were never disclosed to the consortium, and in respect of which the consortium was prevented from exercising its fundamental rights enshrined in Article 41 of the Charter of Fundamental Rights.

93In addition, the applicant claims that the Commission’s approach prevented the consortium from understanding correctly the evaluation of its tender or from exercising its rights of defence, by granting it, by the contested decision, a period of a mere 10 days in which to submit observations and by concealing the information on which the Commission claimed to have relied in order to evaluate and compare the consortium’s tender with the successful tender.

94The Commission and the intervener dispute the applicant’s arguments.

95As regards the first part, it should be noted that, under Article 3 of Regulation No 1, documents which an institution sends to a person subject to the jurisdiction of a Member State are to be drafted in the language of that State.

96In that regard, first, it is apparent from Article 2(50) of Regulation 2018/1046 that any document provided by the contracting authority or to which the contracting authority refers in order to describe or determine elements of the procurement procedure, including the contract notice, the invitation to tender and the tendering specifications, including the technical specifications and relevant criteria, is a ‘procurement document’ within the meaning of that regulation.

97Article 166 of Regulation 2018/1046, which is entitled ‘Preparation of a procurement procedure’, provides, in paragraph 2 thereof, that, in the procurement documents, the contracting authority is to identify the subject matter of the procurement by providing a description of its needs and the characteristics required of the works, supplies or services to be bought, and must specify the applicable exclusion, selection and award criteria. The contracting authority is also to indicate which elements define the minimum requirements to be met by all tenders.

98Secondly, Article 164(3) of Regulation 2018/1046 provides that, in restricted procedures, competitive dialogues, competitive procedures with negotiation and innovation partnerships, any economic operator may submit a request to participate by providing the information that is requested by the contracting authority. The contracting authority is to invite all candidates that satisfy the selection criteria and that are not in any of the situations referred to in Article 136(1) and Article 141(1) of that regulation to submit a tender.

99Thus, it seems, prima facie, first, that the procurement documents must be regarded as ‘documents’ within the meaning of Article 3 of Regulation No 1 and, secondly, that, at least during the second stage of the restricted tendering procedure, candidates who have been invited to submit a tender must be regarded as being identifiable persons falling within the jurisdiction of a Member State. Therefore, it seems that those documents, at least during the second phase of the restricted tendering procedure, should be sent to their addressees in the language of the Member State to which they belong.

100In that context, it should be noted that, according to the case-law, it cannot be inferred from the European Union’s obligation to respect linguistic diversity that there is a general principle of law entitling each person to have everything likely to affect his or her interests drafted in his or her language in all circumstances, and that the institutions are required, without any derogation being permissible, to use all the official languages in all situations (see judgment of 26 March 2019, Spain v Parliament, C‑377/16, EU:C:2019:249, paragraph 37 and the case-law cited).

101Infringement of Article 3 of Regulation No 1 at the time of the adoption of an act does indeed constitute a procedural irregularity which, however, can entail annulment of the act ultimately adopted only if, were it not for that irregularity, the procedure could have led to a different result (see, to that effect, judgment of 25 October 2005, Germany and Denmark v Commission, C‑465/02 and C‑466/02, EU:C:2005:636, paragraphs 36 and 37 and the case-law cited).

102It is apparent from the case-law of the Court that the use of the language laid down in Article 3 of Regulation No 1 does not constitute an essential procedural requirement, within the meaning of Article 263 TFEU, the infringement of which necessarily affects the validity of any document addressed to a person in another language. According to that case-law, where an institution sends a person coming within the jurisdiction of a Member State a document which is not drawn up in the language of that State, such a process vitiates the procedure only if it gives rise to harmful consequences for that person in the course of the administrative procedure (judgment of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 36).

103Consequently, it is only if the use of a language other than that provided for in Article 3 of Regulation No 1 has had harmful consequences for the applicant that the validity of sending a document and, therefore, that of the procedure, can be called into question (see, to that effect, judgment of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 37).

104In the present case, the contract notice was published in the Official Journal of the European Union on 23 May 2019 in all the official languages of the European Union. Section IV.2.4) of the contract notice specified that the languages that could be used in the tender or request to participate in the procedure were English, Bulgarian, Danish, German, Greek, Estonian, Finnish, French, Irish, Croatian, Hungarian, Italian, Latvian, Lithuanian, Maltese, Dutch, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, Swedish and Czech.

105In addition, the letter accompanying the tendering specifications for the first stage of the award procedure, set out in Annex A.11 to the application for interim measures, which was provided only in English together with all the related technical documentation, states that economic operators were invited to submit a request to participate in the procedure in one of the official languages of the European Union.

106Similarly, the notification sent by the Commission on 13 February 2020 to a shortlist of candidates to participate in that call for tenders, set out in Annex A.18 to the application for interim measures, which was also provided only in English, expressly provides that interested economic operators were invited to submit a tender in one of the official languages of the European Union.

107Thus, although the contract notice was published in all the official languages of the European Union, the other procurement documents were made available to the participants throughout the procedure in English only.

108Consequently, the failure to communicate a Spanish-language version of the procurement documents constitutes, prima facie, a defect which could affect the lawfulness of the procedure if it has resulted in harmful consequences for the applicant in the administrative procedure.

109On the latter point, it should be remembered that the consortium was selected from among the candidates invited to submit a tender in the context of the restricted procedure at issue. Consequently, the argument that the consortium would have borne all the risks associated with translation and misinterpretation of the tender documentation if it had decided to submit its request to participate in Spanish cannot, prima facie, succeed.

110Assuming that, by its argument, the applicant is in fact referring to the tender submitted by the consortium, and not to its request to participate, it must be held that, in the context of the present interim proceedings, it has not adduced any evidence capable of demonstrating that any decision of the consortium to submit its tender in Spanish placed it at a disadvantage vis-à-vis the successful tenderer or the other tenderers.

111It is true that the Commission did not expressly indicate to candidates or tenderers the possibility of requesting a translation of the procurement documents or the detailed rules for such a translation. It is clear, however, that, according to the file produced before the judge hearing the application for interim measures, the consortium did not, at any time during the administrative procedure and, in particular, during the question-and-answer sessions organised during the first and second stages of the restricted procedure, put questions or raise objections concerning the languages or certain specific terms or expressions used in the tendering specifications. Nor did the consortium ask the Commission about the possibility of receiving a translation into Spanish of the tendering procedure documentation. That indicates, prima facie, that the applicant was in a position to gain effective knowledge of the content of the procurement documents.

112In addition, although candidates and tenderers were invited to submit their request to participate and their tender in one of the official languages of the European Union, the consortium decided to submit all those documents in English.

113Lastly, and in any event, as regards the errors of fact and assessment allegedly committed by the Commission in questions CS‑06 and OC‑10 described in Section G, it is clear that, in the context of the present proceedings, the applicant has not demonstrated that the alleged lacunae had a decisive effect on the contract award decision. Even if the elements put forward by the applicant concerning questions CS‑06 and OC‑10 in that section were correct, the score awarded by the evaluation committee to the consortium’s tender would still, prima facie, be insufficient to influence the results of the evaluation.

114Consequently, it seems that the consortium was in a position not only to gain effective knowledge of the content of the procurement documents, but also to prepare effectively its participation in the procurement procedure at issue, and that the alleged irregularity, even if proven, was not capable of having harmful consequences in the present case liable to vitiate the administrative procedure.

115As regards the second part, it should be noted that, as stated in paragraph 97 above, under Article 166(2) of Regulation 2018/1046 the contracting authority is to specify, in the procurement documents, the applicable exclusion, selection and award criteria.

117It should also be borne in mind that, according to the case-law referred to in paragraph 35 above, the contracting authority has a broad discretion with regard to the factors to be taken into account when deciding to award a contract following an invitation to tender, and the Court’s review must be limited to verifying observance of the rules governing the procedure and statement of reasons, the material accuracy of the facts and that there has been no manifest error of assessment or misuse of powers. The contracting authority has this broad discretion throughout the procurement procedure, including in the choice and evaluation of the selection and award criteria.

118Moreover, it has been held that the EU rules on public procurement do not preclude a contracting authority from taking into consideration criteria that are not exclusively economic, provided that those criteria are linked to the subject matter of the contract, do not confer an unrestricted freedom of choice on that contracting authority, are expressly referred to in the tendering specifications or the contract notice and comply with all the fundamental principles of EU law, in particular the principle of non-discrimination (see, by analogy, judgment of 4 December 2003, EVN and Wienstrom, C‑448/01, EU:C:2003:651, paragraph 34).

119Furthermore, the Court has held that an evaluation committee must be able to have some leeway in carrying out its task and that it may thus, without amending the contract award criteria set out in the tendering specifications or the contract notice, structure its own work of examining and analysing the submitted tenders (see judgment of 16 October 2018, Proof IT v EIGE, T‑10/17, not published, EU:T:2018:682, paragraph 53 and the case-law cited).

120Lastly, the principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tendering specifications so that, first, all reasonably well-informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract (judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 111, and of 14 July 2016, Alesa v Commission, T‑99/14, not published, EU:T:2016:413, paragraph 64).

121In the present case, it should be noted, as stated inter alia in the technical evaluation questionnaire (Annex 3 to the technical specifications), reproduced in Annexes A.25 to A.27 to the application for interim measures, under the heading ‘Evaluation process’, that points would be allocated for the ‘added value’ provided, that is to say, the degree of precision of the proposal going beyond the mere repetition of the requirement and providing a level of technical and operational detail that shows the contractor’s competency to deliver and operate the services, while providing customers with details to validate the services.

122Since the concept of ‘added value’ was expressly mentioned in the contract documents, it was accordingly determined right from the beginning of the procurement procedure and enabled tenderers to understand objectively the actual importance attributed to ‘added value’ in the subsequent evaluation by the contracting authority.

123Furthermore, it seems, prima facie, that the concept of ‘added value’ was explained in a sufficiently clear, precise and unequivocal manner, so that all reasonably well-informed tenderers exercising ordinary care were in a position to understand what was expected of them. In that regard, it should also be noted that, in the context of the present proceedings, the applicant has not suggested that that concept had been the subject of requests for clarification on the part of the tenderers.

124Consequently, contrary to what the applicant claims, it seems, prima facie, that the concept of ‘added value’ is not vague and does not confer unlimited discretion on the Commission.

125As regards the third part, it must be held that the applicant’s arguments relating to the lack of access to certain information in the successful tender are, in essence, identical to those relied on in support of the third plea. They must be rejected for the same reasons as those set out in paragraphs 55 to 68 above.

126In particular, as noted in paragraph 65 above, the applicant was duly informed by the contracting authority that, in accordance with the last subparagraph of Article 170(3) of Regulation 2018/1046, the contracting authority would not be in a position to communicate all the information it took into account to identify the most economically advantageous tender, including the confidential aspects of that tender, such as the unit prices included in the financial tender or technical or business secrets.

127Furthermore, as regards the applicant’s argument that, by the contested decision, the Commission granted the applicants a period of only 10 days in which to submit observations, it must be observed that the length of the standstill period to be observed before signing a contract or framework contract follows directly from Article 175(3) of Regulation 2018/1046, which provides that ‘the standstill period shall have a duration of 10 days when using electronic means of communication’.

128It follows from the foregoing that the present plea is not capable of demonstrating the existence of a prima facie case nor, a fortiori, that of a particularly serious prima facie case.

The sixth plea in law

129The applicant claims that it was for the Commission, as the contracting authority, to take measures to ensure the protection of the interests of the Member States of the European Union in the field of national security when establishing the TESTA network, which is a secure network for the transfer of data between administrations, which it failed to do in the present case. In the applicant’s view, EU law on public procurement, which, in accordance with Article 96 of Regulation 2018/1046, is subject to the rules laid down in Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1) and Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), provides for mechanisms enabling Member States to safeguard those interests when acting as contracting authorities.

130According to the applicant, the protection of the essential security interests of the Member States is guaranteed, first, by Article 346(1) TFEU which, by virtue of subparagraph (a) thereof, may also be applied to non-military public contracts, and, secondly, in the field of public procurement, by Article 15(2) and (3) of Directive 2014/24 and by Article 13(a) of Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (OJ 2009 L 216, p. 76).

131In the specific context of public procurement procedures involving a tenderer controlled by an entity established in a third country which, because of its size and resources, will have to rely on the entity in the third country to provide the services, the protection of the essential security interests of the Member States is all the more necessary. In the present context in particular, indirect access to the information exchanged in the TESTA network by a third-country government or agency threatens the public security of the EU Member States participating in the network, as EU law would not apply to the actions of the government of a third country. Moreover, the potential influence of the government of a third country over the successful tenderer, which is a company belonging to a group of non-European companies, for the operation of a network involved in sensitive communications could affect the security or public order of the Member States concerned.

132Consequently, the Commission failed to take into consideration the position of the successful tenderer as a subsidiary of a company in a third country subject to the constraint of the government of a third country, to impose appropriate security conditions on that tenderer’s bid and to score it accordingly, to the relative detriment of the consortium’s tender.

133The Commission and the intervener dispute the applicant’s arguments.

134In that regard, concerning the applicant’s argument that the Commission erred in law by not imposing any measure aimed at safeguarding the right of Member States not to disclose information contrary to their essential security interests, first, it must be borne in mind that, under Article 346(1)(a) TFEU, no Member State is to be obliged to supply information the disclosure of which it considers to be contrary to its essential security interests.

135Thus, Article 346(1)(a) TFEU, which, given the general nature of its wording, is intended to apply, inter alia, in the field of non-military public contracts, clearly provides that it is for the Member States to define their essential security interests (see, to that effect, judgment of 20 March 2018, Commission v Austria (State Printing Office), C‑187/16, EU:C:2018:194, paragraphs 72 and 75).

136Consequently, it is, prima facie, for each Member State to define the information to be transmitted through the TESTA network.

137Secondly, in so far as the applicant bases its arguments relating to the protection of the essential security interests of the Member States on the provisions of Directives 2009/81, 2014/23 and 2014/24, it must be borne in mind that the procedures for the award of public service contracts launched by the EU institutions are governed by the provisions of Regulation 2018/1046 and by the implementing rules.

138It is true that the provisions of Regulation 2018/1046 are based on the EU directives on the award of public contracts. Nevertheless, only Member States are addressees of those directives and accordingly, in principle, the directives govern only public procurement procedures relating to institutions of the Member States (see, to that effect, judgment of 23 May 2014, European Dynamics Luxembourg v ECB, T‑553/11, not published, EU:T:2014:275, paragraph 110 and the case-law cited).

139Consequently, the provisions of Directives 2009/81, 2014/23 and 2014/24 relied on by the applicant are not, prima facie, directly applicable to public contracts awarded by the EU institutions.

140It is true that point 11.1(i) of Annex I to Regulation 2018/1046 largely reflects the provisions of Article 15(2) and (3) of Directive 2014/24. That point states that the EU contracting authority may use the negotiated procedure without prior publication of a contract notice ‘for contracts declared to be secret or for contracts whose performance must be accompanied by special security measures, in accordance with the administrative provisions in force or when the protection of the essential interests of the Union so requires, provided the essential interests concerned cannot be guaranteed by other measures; such measures may consist of requirements to protect the confidential nature of information which the contracting authority makes available in the procurement procedure’.

141However, point 11.1(i) of Annex I to Regulation 2018/1046 applies only to contracts declared ‘secret’ by the contracting authority or to those ‘whose performance must be accompanied by special security measures, in accordance with the administrative provisions in force or when the protection of the essential interests of the Union so requires, provided the essential interests concerned cannot be guaranteed by other measures’.

142In the present case, however, the contract in question was declared neither to be secret nor as requiring special security measures. In order to limit third-party access to the tendering specifications due to their confidential nature, the Commission considered that it was sufficient to use a restricted procedure, to warn candidates of that confidential nature and to request that all candidates sign a non-disclosure agreement at the selection stage.

143Thirdly, it must be borne in mind that, under Article 176(1) of Regulation 2018/1046, participation in procurement procedures is to be open, on equal terms, to all natural and legal persons falling within the scope of the Treaties.

144Consequently, in the present case, the successful tenderer, a company incorporated under Belgian law, appears to have participated as of right in the procurement procedure at issue. The present argument cannot therefore prima facie succeed.

145Accordingly, the present plea is not capable of demonstrating the existence of a prima facie case nor, a fortiori, that of a particularly serious prima facie case.

146In the light of all of the foregoing, since the applicant has not succeeded in establishing a prima facie case nor, a fortiori, a particularly serious prima facie case, the present application for interim measures must be refused without its being necessary to examine the other conditions referred to in paragraph 18 above and without there being any need to rule on the admissibility of the applicant’s third head of claim.

147Since the present order closes the proceedings for interim measures, the order of 1 April 2022 in Telefónica de España v Commission (T‑170/22 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure, under which the operation of the contested decision was suspended until the date of the order terminating the present proceedings for interim measures, must be cancelled.

148Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.

On those grounds,

hereby orders:

1.The application for interim measures is refused.

2.The order of 1 April 2022, Telefónica de España v Commission (T‑170/22 R), is cancelled.

3.The costs are reserved.

Luxembourg, 28 February 2023.

Registrar

*

Language of the case: English.