T-670/24

v

European Commission, represented by S. Romoli and T. Van Noyen, acting as Agents,

defendant,

THE GENERAL COURT (Third Chamber),

composed of K. Kowalik-Bańczyk, President, R. da Silva Passos (Rapporteur) and H. Cassagnabère, Judges,

Registrar: V. Di Bucci,

3 On 17 January 2022, Contract Notice No 022587-2022 was published with the aim of the European Personnel Selection Office (EPSO) acquiring solution services for tests organised remotely at all stages of personnel selection procedures. Similarly, a ‘New competition model’ favouring online tests was drawn up in January 2023 in order, inter alia, to meet the requirements of ‘modernity, flexibility and EU’s Green Deal’, address ‘the vulnerability of … in-person testing [in the context of the COVID-19 pandemic]’, and take into account the fact that ‘[the solution of] remote testing is the delivery mode of the future and responds to the evolution in the market of large-scale staff selections[, since] it is … accessible from wherever the candidate is[,] … entails no travelling costs[, is greener and more modern,] in line with digitalisation of the institutions[, and is accessible to all]’.

4 In October 2023, due to technical difficulties, relating in particular to connecting to the testing platform and the availability of the IT helpdesk, encountered by candidates in the course of the selection procedures organised in the performance of that contract, and the concerns connected to the protection of their personal data, EPSO decided to reschedule certain tests and suspend temporarily the publication of new selection procedures ‘until … the right conditions exist’, ‘to reappraise the automated proctoring’ and to examine ‘other possible and viable solutions to ensure smooth candidate experience’.

6 In that context, by a communication of 2 April 2024, EPSO announced the unilateral termination, in February 2024, of the existing test delivery framework contract and its desire to intensify its efforts to find, for the long term, ‘[a solution] that would address the main technical difficulties observed previously [even if] no perfect system exists’. In its 2023 Annual Activity Report, of 27 May 2024, EPSO set implementing the recommendations of the EDPS and the Ombudsman as priorities for 2024, in order to improve the remote organisation of tests. By a communication of 19 June 2024, it announced a remote selection procedure that was a ‘noteworthy improvement compared to the [situation] in 2023’, even if some ‘technical complaints’ might have been noted. By a communication of 26 June 2024, it restated its desire to use a computer-based test delivery solution. It also announced its intention to launch a new tendering procedure, in which remote, computer-based testing would remain the default testing method, while an on-site option would be provided for as an alternative where providing such services remotely would be impossible or inappropriate.

7 On 16 October 2024, by publishing Contract Notice No 623940-2024 in the supplement to the Official Journal of the European Union (OJ S 202/2024), the European Commission, represented by EPSO, launched tendering procedure EC-EPSO/2024/OP/0016, split into two lots, for the award of multiple framework service contracts in cascade for the delivery of computer-based tests and related services for the selection of EU staff.

11 The applicant states that it had become aware, by the publication of Change Notice No 638461-2024, of an ‘underlying strategic decision’ of the Commission to acquire exclusively remote computer-based testing services for the vast majority of tests which EPSO would organise in the future, amounting, in essence, to an implicit decision not to acquire on-site computer-based testing services going forward (‘the contested strategic decision’).

12 On 20 November 2024, the applicant asked the contracting authority, in a question submitted under the ‘Questions & Answers’ section of the tendering procedure at issue, whether such a change meant that the technical specifications had to be interpreted as excluding the delivery of on-site tests from the subject of that procedure. On the same day, the contracting authority answered the applicant by stating that that subject was ‘the delivery of computer-based testing capacity and related services for the selection of EU staff’ and that, ‘according to Section 1.5 of the tender specifications[,] Part 1: Administrative Specifications states that: “the services covered under the framework contracts will be performed and delivered remotely”’.

13 On 21 November 2024, Contract Notice No 623940-2024, as amended by Change Notice No 638461-2024, was subject to a second amendment, by Change Notice No 709442-2024, published in the supplement to the Official Journal of the European Union (OJ S 227/2024) (‘the contested contract notice’), which postponed the deadline for the submission of tenders until 6 December 2024. In that context, Sections 2.1 and 5.1 of Contract Notice No 623940-2024, as amended by Change Notice No 638461-2024, were not amended. On that date, the applicant had not submitted a tender.

– order the Commission to pay the costs.

16 In the pleas of inadmissibility raised under Article 130(1) of the Rules of Procedure of the General Court, the Commission contends that the Court should:

– dismiss the actions as inadmissible;

– order the applicant to pay the costs.

17 In its observations on the pleas of inadmissibility, the applicant claims that the Court should reject those pleas and therefore open the oral part of the procedure or, in the alternative, reserve making a decision on them for the final judgment. It also claims that the Commission should be ordered to pay the costs.

Law

22 Secondly, the Commission contends that the applicant, who has not submitted a tender, is accordingly not an actual tenderer and has neither an interest in bringing proceedings nor the standing to bring them in respect of the contested contract notice and the contested award decision. In that regard, in the light of the broad discretion of the contracting authority to define the subject of a contract according to its needs, the procurement documents in the present case do not contain any discriminatory specifications. In the Commission’s view, if the applicant has not submitted a tender, it is solely because it does not provide the remote services in question. Accordingly, the Commission argues that the latter would not obtain any advantage whatsoever from the annulment of that notice or that decision and cannot rely on a hypothetical interest or that of a third party. In addition, the Commission submits that, without having proved that it operates in the market for those services, the applicant cannot be either directly or individually affected by those non-regulatory acts. Furthermore, according to the Commission, the correction of an oversight in the description of those services, by Contract Notice No 623940-2024, examined in the light of the clear definition of those services in the technical and administrative specifications, does not alter that conclusion.

23 Thirdly, as regards the contested strategic decision, the Commission contends that no decision producing binding legal effects exists for the purposes of Article 263 TFEU. Indeed, the award procedure for the contract in question cannot, in its view, be interpreted as a decision of EPSO to use exclusively remote tests for future selection procedures or as an announcement that it will not use on-site tests in the future. Consequently, according to the Commission, the action in Case T‑670/24, as regards that decision, must be rejected as inadmissible, principally, in so far as it is directed against a hypothetical act whose existence has not been proven by the applicant and, in the alternative, on the basis of Article 76(d) of the Rules of Procedure, on account of insufficient precision in the identification of that act.

25 In particular as regards the contested contract notice and the contested award decision, the applicant maintains that the removal from Contract Notice No 623940-2024 of the text ‘online and on-site delivery capability’ from the description of the contract cannot be regarded as a mere error given the limits of a remote solution as examined in the EDPS audit report of 16 January 2024 and in a decision of the Ombudsman of 22 January 2024, the technical deficiencies reported during previous remote selection procedures and EPSO’s commitment, of 26 June 2024, regarding an on-site solution. In its view, that removal and the prohibition on variants imply that that notice and that decision are based on discriminatory and disproportionate technical specifications which exclude, without justification, alternative technical solutions. According to the applicant, that goes against its initial right, as a potential tenderer operating on the market concerned, to participate in the tendering procedure in question. It argues that, since, in those circumstances, it is directly and individually affected by that notice and that decision, it has the right to challenge them despite not submitting a tender and despite the broad discretion granted to the contracting authority in that regard.

26 As regards the contested strategic decision, the applicant states that the restriction to remote testing services, imposed after the tendering procedure was launched, attests to a decision of EPSO to use exclusively remote, computer-based tests for the majority of its selection procedures. According to the applicant, the existence of such a decision is, for that matter, confirmed in an email from the director of EPSO of 26 May 2025, with the result that the applicant’s interest regarding this specific legal situation is established.

28 In that regard, participation in a contract award procedure may, in principle, validly constitute a condition which must be fulfilled before the person concerned can show an interest in obtaining the contract at issue or that he risks suffering harm as a result of the allegedly unlawful nature of the decision to award that contract (see judgment of 28 November 2018, Amt Azienda Trasporti e Mobilità and Others , C‑328/17, EU:C:2018:958, paragraph 46 and the case-law cited). However, where an undertaking has not submitted a tender because of certain specifications in the documents relating to the invitation to tender or in the tender specifications which it could not meet, which manifestly have the aim or effect of ousting it from the tender by making it impossible for that undertaking to provide all the services requested, it would be too much to require it to submit, before bringing proceedings in respect of those specifications, a tender in the award procedure for the contract at issue, even though its chances of being awarded the contract are non-existent by reason of the existence of those specifications (see, to that effect, judgments of 28 November 2018, Amt Azienda Trasporti e Mobilità and Others , C‑328/17, EU:C:2018:958, paragraph 47 and the case-law cited, and of 26 January 2022, Leonardo v Frontex , T‑849/19, EU:T:2022:28, paragraph 26).

29 Furthermore, since it is only in exceptional cases that a right to bring proceedings is given to an operator which has not submitted a tender, it cannot be regarded as excessive to require that operator to demonstrate that the clauses in the call for tenders make it impossible to submit a tender (judgments of 28 November 2018, Amt Azienda Trasporti e Mobilità and Others , C‑328/17, EU:C:2018:958, paragraph 53, and of 26 January 2022, Leonardo v Frontex , T‑849/19, EU:T:2022:28, paragraph 27).

31 In that regard, account should be taken of the fact that the purpose of the procurement procedure is to meet the needs of the contracting authority under the best possible conditions. Consequently, the contracting authority must be able to define the subject of the contract freely (judgment of 13 September 2011, Dredging International and Ondernemingen Jan de Nul v EMSA , T‑8/09, EU:T:2011:461, paragraph 68, and order of 7 December 2020, Militos Symvouleftiki v Commission , T‑536/19, not published, EU:T:2020:588, paragraph 45). Therefore, according to settled case-law, a contracting authority has broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. It therefore has that extensive discretion in determining both the content and the application of the rules applicable to the award of a contract, for its own account, following a call for tenders, taking into account the nature, subject and specific features particular to each contract (see, to that effect, judgments of 20 September 2011, Evropaïki Dynamiki v EIB , T‑461/08, EU:T:2011:494, paragraph 137, and of 26 January 2017, TV1 v Commission , T‑700/14, not published, EU:T:2017:35, paragraph 98). In particular, that discretion of the contracting authority in the formulation of the technical specifications of a procurement contract is justified by the fact that that authority is best placed to know which supplies it needs and to determine the requirements necessary to achieve the desired results (see, to that effect and by analogy, judgment of 25 October 2018, Roche Lietuva , C‑413/17, EU:C:2018:865, paragraphs 29 and 30).

36 First, it must be noted that, in respect of the technical specifications in the tender specifications, the tendering procedure in question was justified by its conformity with the new competition model designed, in particular, to reduce the length of selection procedures, consistent with the ‘principles [of] precision ([by] using the right type of tests for the right type of profiles), agility ([by] being adaptable to EU Institutions’ evolving needs) and speed ([by] keeping selection processes as short as possible)’ and with the aim of improving them ‘[by transitioning, over time,] from paper-based to computer-based testing in test centres, then to fully remote testing’. In addition, noted therein is the objective of ‘safeguarding the confidentiality and integrity of candidate data’, by ‘exploring opportunities to expand testing options to reach a broader candidate pool EU-wide and adapting to candidates with special needs’. In addition, the services sought had to include information and technical support in respect of those services and the lowest possible technical requirements for accessing the platform, with particular attention to complying with the applicable rules within the European Union concerning artificial intelligence and the protection of personal data, and the setting up of an IT support service accessible during the tests.

39 Furthermore, in such circumstances and in the light of that freedom of the contracting authority, first, the fact that, in June 2024, EPSO considered organising an on-site alternative cannot be regarded as a definitive statement of its position in that regard since the gradual assessment of its needs could still have led it to take the view that the technical difficulties identified with regard to a remote solution could be overcome. Secondly, the contradictory text in Sections 2.1 and 5.1 of Contract Notice No 623940-2024 regarding both online and on-site delivery capability can be regarded as a mere error, given the consistent, specific and clear content of the tender specifications (see paragraphs 8 and 9 above) and, in particular, Sections 1.4 and 1.5 of Part 1, which state that variants will not be allowed and that the services covered are to be performed and delivered remotely, and Section 2.1 of Part 2, which refers to an online testing platform to be accessed by candidates remotely using their own devices. In addition, it must be found that that error was subsequently corrected by Change Notice No 638461-2024 and, therefore, did not reflect the finalised scope of the contested contract notice.

40 In those circumstances, both factual elements referred to in paragraph 39 above cannot be interpreted prima facie as demonstrating conduct on EPSO’s part which manifestly had the aim or effect of unduly restricting the subject of the call for tenders in question in order to oust operators of on-site services and, specifically, the applicant.

43 Accordingly, since the applicant has not adduced evidence that the contested contract notice was discriminatory on account of conduct on the part of EPSO which manifestly had the aim or effect of unduly restricting the subject in order to oust operators of on-site services and, specifically, the applicant, the latter clearly has not established an interest in bringing proceedings for the purpose of obtaining the annulment of the contested contract notice and of the contested award decision.

The contested strategic decision

44 It must be noted that the contested strategic decision is defined by the applicant as ‘underlying’ the contested contract notice, in that it relates to the acquisition by the Commission and for EPSO of remote computer-based testing services, which, according to the applicant, exclude all other means of organising tests, including, in particular, on-site tests. In that way, that decision is, in reality, indissociable from the subject of the call for tenders in question and, accordingly, indissociable from the contested contract notice.

45 In those circumstances, and for the same reasons as those set out in paragraphs 35 to 43 above, which can be transposed to the contested strategic decision, it must be found that the applicant has also failed to establish an interest in bringing proceedings in respect of that decision.

1. Cases T ‑ 670/24 and T ‑ 607/25 are joined for the purposes of the order.

2. The actions are dismissed as inadmissible.

3. Recrytera Srl shall pay the costs.

Luxembourg, 7 July 2026.

V. Di Bucci

K. Kowalik-Bańczyk