T-173/25

JUDGMENT OF THE GENERAL COURT (Fifth Chamber) 1 July 2026 (*) ( Public service contracts – Tendering procedure – Trans-European Services for Telematics between Administrations – New Generation Extension (TESTA-ng III) – Negotiated procedure without prior publication of a contract notice – Article 164(5)(f) of Regulation (EU, Euratom) 2018/1046 and point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 – Extreme urgency – Unforeseeable events not attributable to the contracting authority – Transparency – Equal treatment ) In Case T‑173/25, BT Global Services Belgium, established in Machelen (Belgium), represented by V. Dor, A. Lepièce and M. Vilain XIIII, lawyers, applicant, v European Commission, represented by M. Ilkova and S. Romoli, acting as Agents, defendant, THE GENERAL COURT (Fifth Chamber), composed of M. Sampol Pucurull, President, T. Pynnä (Rapporteur) and M. Stancu, Judges, Registrar: A. Audras-Hidelot, Administrator, having regard to the written part of the procedure, in particular: –        the evidence adduced by the Commission, lodged at the Registry of the General Court on 13 January 2026; –        the applicant’s observations on the evidence adduced, lodged at the Court Registry on 26 January 2026, further to the hearing on 29 January 2026, gives the following Judgment 1        By its action under Article 263 TFEU, the applicant, BT Global Services Belgium, seeks annulment of the decision of the European Commission, published in the Supplement to the Official Journal of the European Union on 16 December 2024 (OJ 2024/S 244-769694), by which the Commission awarded to Deutsche Telekom Business Solutions GmbH (‘Deutsche Telekom’) the contract with reference DIGIT/2023/NP/0017 – Trans-European Services for Telematics between Administrations – New Generation (TESTA-ng III)’ (‘the contract at issue’), by means of a negotiated procedure without prior publication of a contract notice (‘the contested decision’).  Background to the dispute 2        The TESTA network is a project developed in the form of a network service in order to provide a secure communication platform for the exchange of data between the European public administrations, such as data from the Schengen Information System and from the Visa Information System, connectivity to several specific sites of the European Union Agency for Law Enforcement Cooperation (Europol) and the delivery of academic records and civil status documents in the European Union. The TESTA network supports sensitive pan-European information exchanges between public authorities requiring guaranteed service levels for network availability, confidentiality and integrity, including applications linked to policy areas such as police cooperation, border control, asylum, civil protection and money laundering. 3        The users of the TESTA network are not only Member States and EU institutions, bodies, offices and agencies, but also European Free Trade Association (EFTA) countries, EU candidate countries and the United Kingdom. Most of the activities of stakeholders on the TESTA network are cross-border in nature and involve all entities, with the result that they cannot be carried out effectively by Member States or bodies acting individually. 4        In 2011, the Commission launched the restricted call for tenders with reference DIGIT/R2/PR/2011/039, entitled ‘Trans-European Services for Telematics between Administrations – New Generation (TESTA-ng)’. The corresponding contract, for which the applicant had submitted a tender, was awarded to T-Systems International GmbH (‘T-Systems’), which subsequently became Deutsche Telekom, in July 2012. 5        On 6 June 2017, the Commission awarded T-Systems the contract in the procurement procedure with reference DIGIT/A3/PN/2017/018, entitled ‘Trans-European Services for Telematics between Administrations – New Generation (TESTA-ng II)’, by means of a negotiated procedure without prior publication of a contract notice, on the ground that the services concerned could be provided only by a particular economic operator, due to the absence of competition for technical reasons. 6        On 23 May 2019, the Commission launched the restricted call for tenders with reference DIGIT/A3/PR/2019/RP/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’. The corresponding contract was awarded to the applicant on 21 January 2022 (‘the decision of 21 January 2022’). 7        On 26 June 2019, the Commission launched the procurement procedure with reference DIGIT/A3/PN/2019/026, entitled ‘Trans-European Services for Telematics between Administrations – New Generation Extension (TESTA-ng II Ext)’, by means of a negotiated procedure without prior publication of a contract notice. On 29 May 2020, the corresponding contract was awarded to T-Systems, on the ground that, due to the absence of competition for technical reasons, the services concerned could be provided only by a particular economic operator. The objective was to ensure continuity of service of the TESTA network until migration to a new contractor, once the restricted procedure referred to in paragraph 6 above was concluded. The maximum contract value was set at EUR 121.9 million. The contract was to expire on 17 June 2024, but allowed for certain contracts to be performed up to 17 December 2024. 8        On 30 March 2022, T-Systems brought an action for annulment of the decision of 21 January 2022 (Case T‑173/22). On 31 March 2022, Telefónica de España, SA also brought an action for annulment of that decision, and submitted an application for interim measures (Cases T‑170/22 and T‑170/22 R). 9        By order of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published), the President of the General Court suspended operation of the decision of 21 January 2022 pending the order determining the proceedings for interim measures. 10      By order of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460), the President of the General Court dismissed the application for interim measures lodged by Telefónica de España. Telefónica de España lodged an appeal before the Court of Justice against that order (Case C‑478/22 P(R)) and submitted an application for interim measures (Case C‑478/22 P(R)-R). 11      By order of 22 July 2022, Telefónica de España v Commission (C‑478/22 P(R)-R, not published, EU:C:2022:598), the Vice-President of the Court of Justice ordered the Commission to refrain from signing a contract in the context of the procurement procedure with reference DIGIT/A3/PR/2019/RP/010 until the adoption of the order terminating the proceedings for interim measures or ruling on the appeal in Case C‑478/22 P(R), whichever was earlier. 12      By order of 22 November 2022, Telefónica de España v Commission (C‑478/22 P(R), EU:C:2022:914), the Vice-President of the Court of Justice set aside the order of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460), and referred the case back to the General Court. 13      By order of 28 February 2023, Telefónica de España v Commission (T‑170/22 R-RENV, not published, EU:T:2023:89), the Vice-President of the General Court refused the application for interim measures and cancelled the order of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published). Telefónica de España lodged an appeal before the Court of Justice against that order (Case C‑141/23 P(R)), and submitted an application for interim measures (Case C‑141/23 P(R)-R). 14      By order of 14 March 2023, Telefónica de España v Commission (C‑141/23 P(R)‑R, not published, EU:C:2023:292), the Vice-President of the Court of Justice again ordered the Commission to refrain provisionally from signing a contract in the context of the call for tenders with reference DIGIT/A3/PR/2019/RP/010. 15      On 4 April 2023, the Commission cancelled the call for tenders with reference DIGIT/A3/PR/2019/RP/010 (see paragraph 6 above), which invalidated the award of the related contract to the applicant and meant that there was no longer any need to adjudicate in Cases C‑141/23 P(R), T‑170/22 and T‑173/22. The Commission stated in particular that, almost four years after publication of that call for tenders, it was still prevented from signing the contract and that, since publication of the call for tenders, there had been significant changes in the geopolitical, technological and macroeconomic environment. 16      As regards the geopolitical environment, the Commission stated that the war in Ukraine had had a significant effect on the cybersecurity landscape and on the requirements relating to the TESTA network, making it necessary to strengthen the protection of the EU’s information assets and the security measures against external threats and to ensure sufficient protection of data exchanged between national administrations and EU institutions, bodies, offices and agencies. 17      As regards the technological environment, the Commission emphasised the transition towards cloud computing services, accelerated by the COVID-19 crisis and the extensive period of teleworking, as a key factor in the evolution of IT infrastructure across the EU institutions, bodies, offices and agencies. 18      As regards the macroeconomic environment, the Commission stated that the cumulative effects of the COVID-19 pandemic and the war in Ukraine had resulted in heightened inflation, an energy crisis and global supply chain issues, those three factors having had a significant impact on the underlying costs calculated in the financial offers of the tenderers and on the sustainability of the offers submitted. 19      On 18 August 2023, the Commission’s decision to modify the contract with reference DIGIT/A3/PN/2019/026 (see paragraph 7 above) without launching a new procurement procedure was published in the Supplement to the Official Journal of the European Union (OJ 2023/S 158-500221). The modifications to the contract included, inter alia, adding additional services and increasing the maximum value of the contract, which went from EUR 121.9 million to EUR 160.9 million, in order to allow six months of service provision for the specific contracts signed before the expiry of the contract. 20      The reasons stated for those modifications were unforeseeable circumstances such as those resulting from the COVID-19 pandemic and from the orders of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published), of 22 July 2022, Telefónica de España v Commission (C‑478/22 P(R)-R, not published, EU:C:2022:598), and of 14 March 2023, Telefónica de España v Commission (C‑141/23 P(R)-R, not published, EU:C:2023:292), delivered by the Courts of the European Union (‘the three suspension orders’), which had led to the cancellation of the call for tenders with reference DIGIT/A3/PR/2019/RP/010 in April 2023 (see paragraph 15 above) and had made it impossible to migrate to a new network or to have a new network fully operational by expiry of the contract. 21      On 17 November 2023, the Commission launched the procurement procedure at issue by means of a negotiated procedure without prior publication of a contract notice, in order to ensure business continuity in the provision of new generation TESTA network services delivered in the framework of the contract with reference DIGIT/A3/PN/2019/026 beyond 17 December 2024 (see paragraph 7 above), for a duration of approximately three years (‘the procedure at issue’). On 16 December 2024, the contested decision was published in the Supplement to the Official Journal of the European Union. 22      In the contested decision, the Commission stated that the direct award of the contract was justified by extreme urgency brought about by unforeseeable events and by the necessity of ensuring, after the cancellation of the call for tenders with reference DIGIT/A3/PR/2019/RP/010 in April 2023 (see paragraph 15 above), continuity of the new generation TESTA network services beyond 17 December 2024, those services being critical and sensitive and consisting in the provision of a secure trans-European communication platform for the exchange of digital information between European and national administrations, including applications linked to sensitive policy areas such as police cooperation, border control, asylum, civil protection and money laundering. 23      The Commission stated that it considered that the conditions laid down in point 11.1(c) 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, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) for the use of a negotiated procedure without the prior publication of a contract notice were satisfied. 24      First, in the present case, there were unforeseeable events not attributable to the contracting authority, namely the COVID-19 pandemic, which led to a significant delay in the preparatory activities and the various steps of the TESTA procurement procedure, the three suspension orders, which prevented the signing of the contract in the framework of the call for tenders with reference DIGIT/A3/PR/2019/RP/010, and changes in the geopolitical, technological and macroeconomic environment, events which led to the cancellation of that call for tenders. 25      Secondly, due to the expiry of the previous TESTA contract on 17 December 2024 and the launch of a new strategy no longer based on the existing TESTA model of a single service contract but on an IT service-oriented model, requiring the design and the launch of a significant number of procurement procedures and the implementation of a significant number of services, it was impossible to comply with the time limits laid down by Regulation 2018/1046 for an urgent open or restricted procedure. Indeed, the process of migrating the services between the old and new networks would have lasted at least two years. 26      Thirdly, the procedure at issue and the resulting contract were strictly necessary, since they would cover only the period necessary to carry out the migration to the new network, planned for the end of 2027. 27      Between January 2024 and May 2025, the Commission organised market consultations concerning its new strategy, ‘TESTA-EIRIS’.  Forms of order sought 28      The applicant claims that the General Court should: –        annul the contested decision; –        grant such other relief that the Court considers appropriate; –        order the Commission to pay the costs. 29      The Commission contends that the Court should: –        dismiss the action as unfounded; –        order the applicant to pay the costs.  Law  The admissibility of the second head of claim 30      By its second head of claim, the applicant asks the Court to grant such other relief as it considers appropriate, without, however, explaining the nature and scope of the relief whose adoption it requests. 31      It must be pointed out, in that respect, that under Article 76(e) of the Rules of Procedure of the General Court, the application is to contain the form of order sought by the applicant, which must be provided in a clear and accurate manner (see judgment of 26 October 2022, LE v Commission, T‑475/20, not published, EU:T:2022:672, paragraph 113 and the case-law cited). That is clearly not the case with regard to the second head of claim, which, consequently, must be rejected as inadmissible.  Substance 32      In support of its action, the applicant raises two pleas in law, seeking to show that the Commission erred in law by awarding the contract at issue without prior publication. 33      By its first plea, the applicant alleges that the Commission, by awarding the contract at issue without prior publication, infringed Article 164(5)(f) and point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046. 34      By its second plea, the applicant alleges that the Commission artificially narrowed competition in breach of the principles of fair competition, equal treatment and transparency.  The first plea, alleging infringement of Article 164(5)(f) and point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 35      By four complaints, the applicant argues that the cumulative conditions for the use of a negotiated procedure without prior publication, set out in point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046, were not met. First, the direct award was not strictly necessary; secondly, it was not made for reasons of extreme urgency brought about by unforeseeable events; thirdly, that urgency is not incompatible with the time limits laid down in points 24, 26 and 41 of Annex I to Regulation 2018/1046 and, fourthly, the reasons for urgency are attributable to the contracting authority. The Commission interpreted those conditions broadly and did not prove the actual existence of the exceptional circumstances justifying its decision to award the contract at issue without a prior call for competition. 36      The Commission disputes the applicant’s line of argument. 37      As a preliminary point, it must be borne in mind that, under Article 160(1) of Regulation 2018/1046, all contracts financed in whole or in part by the budget are to respect the principles of transparency, proportionality, equal treatment and non-discrimination. Therefore, in accordance with Article 160(2) of that regulation, all contracts are to be put out to competition on the broadest possible basis, except when use is made of the negotiated procedure, including without prior publication, referred to in Article 164(1)(d) thereof. 38      Article 164(5) of Regulation 2018/1046 provides: ‘The contracting authority may use: … (f)      the negotiated procedure for contracts with a value below the thresholds referred to in Article 175(1), or the negotiated procedure without prior publication for specific types of purchases falling outside the scope of Directive 2014/24/EU or in the clearly defined exceptional circumstances set out in Annex I to this Regulation. …’ 39      The second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 states: ‘The contracting authority may use the negotiated procedure without prior publication of a contract notice, regardless of the estimated value of the contract, in the following cases: … (c)      in so far as is strictly necessary where, for reasons of extreme urgency brought about by unforeseeable events, it is impossible to comply with the time limits laid down in points 24, 26 and 41 and where the justification of such extreme urgency is not attributable to the contracting authority; …’ 40      It follows from settled case-law concerning the directives on public procurement that recourse to the derogation referred to in paragraph 39 above is subject to three cumulative conditions, namely the existence, in addition to an unforeseeable event, of extreme urgency, rendering the observance of time limits laid down by other procedures impossible, and a causal link between the unforeseeable event and the extreme urgency resulting therefrom (see judgment of 6 September 2023, Enmacc v Commission, T‑1/23, not published, EU:T:2023:506, paragraph 41 and the case-law cited). 41      In view of its nature as a derogation, point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 must be interpreted strictly. In addition, the burden of proof lies with the party seeking to rely on such a derogation (see judgment of 6 September 2023, Enmacc v Commission, T‑1/23, not published, EU:T:2023:506, paragraph 42 and the case-law cited). 42      It is in the light of those considerations that the complaints raised by the applicant must be examined. –       The complaint alleging the absence of extreme urgency brought about by unforeseeable events 43      According to the applicant, the circumstances relied on by the Commission for several years, namely the COVID-19 pandemic, the three suspension orders and the geopolitical, technological, and macroeconomic changes, had ceased to be unforeseeable by 2022 at the latest and did not give rise to a situation of extreme urgency in December 2024. 44      The circumstances relied on by the Commission to justify the contested decision were the same as those it had already relied on to justify its decision of 4 April 2023 to cancel the call for tenders with reference DIGIT/A3/PR/2019/RP/010 and its decision, published in the Supplement to the Official Journal of the European Union on 18 August 2023, to modify the contract with reference DIGIT/A3/PN/2019/026 without launching a new procurement procedure. 45      The Commission disputes that line of argument. 46      It is apparent from the wording of point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 that the extreme urgency justifying the use of a negotiated procedure without prior publication of a contract notice must be brought about by unforeseeable events. 47      It must first be ascertained whether, in the circumstances of the present case, the Commission was entitled to take the view that it was faced with unforeseeable events such as to justify the use of a negotiated procedure without prior publication of a contract notice. 48      It should be noted that Regulation 2018/1046 does not contain any detailed information making it possible to determine what is covered by the concept of ‘unforeseeable events’. It must be stated that, in the absence of such detailed information, the contracting authority has a certain margin of discretion in relation to the assessment of whether such events are present (see judgment of 6 September 2023, Enmacc v Commission, T‑1/23, not published, EU:T:2023:506, paragraph 51 and the case-law cited). 49      In the contested decision, the Commission stated that the direct award of the contract was justified by extreme urgency brought about by a series of unforeseeable events, namely, first, the COVID-19 pandemic, which led to a significant delay in the preparatory activities and the various steps of the TESTA procurement procedure, secondly, the three suspension orders, which prevented the signing of the contract in the framework of the call for tenders with reference DIGIT/A3/PR/2019/RP/010, and, thirdly, changes in the geopolitical, technological and macroeconomic environment (see paragraphs 22 and 24 above). 50      The applicant argues that, from 2022 if not earlier, the events relied on by the Commission were no longer unforeseeable and that they were well known to the Commission several years before the adoption of the contested decision. 51      In that regard, among the events relied on by the Commission, the COVID-19 pandemic and the geopolitical, technological and macroeconomic changes resulting therefrom and from the outbreak of the war in Ukraine, such as increased cybersecurity needs, the acceleration of the transition to cloud computing services and heightened inflation (see paragraphs 16 to 18 above), constituted unforeseeable events arising from a cause external to that institution. 52      It is true that the COVID-19 pandemic and the war in Ukraine began, respectively, in March 2020 and in February 2022, that is to say nearly four years and nearly two years, respectively, before the launch of the procedure at issue in November 2023. However, as the Commission correctly argued, it is not only the onset of those events, but also their duration and the scale of the consequences which they have entailed that constitute unforeseeable events. The Commission thus explained at the hearing, without being contradicted by the applicant in that regard, that the war in Ukraine had, in particular, led it to implement new cybersecurity requirements concerning the approval of staff with access to highly sensitive infrastructure, the strengthening of security measures and the use of independent external service providers. 53      As regards the three suspension orders, it is true that the Commission could anticipate that an action seeking the annulment of the decision of 21 January 2022 and an application for interim measures would be brought and, where appropriate, that the President of the General Court would suspend operation of the decision of 21 January 2022 pending the order determining the proceedings for interim measures (see paragraphs 8 and 9 above). Moreover, it is true that those orders, dated 1 April 2022, 22 July 2022 and 14 March 2023 respectively, predate the launch of the procedure at issue by several months. 54      However, it is not so much each of the three suspension orders, considered in isolation, which constitutes an unforeseeable event, but rather the sequence of procedural events recalled in paragraphs 8 to 14 above and, in particular, the fact that three successive orders were adopted, leading to a situation of prolonged uncertainty as to the possibility of a lasting suspension of the signing of the contract in the context of the call for tenders with reference DIGIT/A3/PR/2019/RP/010, as well as a suspension of the signing of that contract for a total duration of one year. That set of circumstances could hardly have been anticipated by the Commission. 55      For the same reason, the applicant’s argument based on the provisional nature of the three suspension orders, pending a decision on the merits concerning the decision of 21 January 2022, cannot succeed. 56      It follows that this case presented a set of exceptional circumstances, resulting from the combination of the COVID-19 pandemic, the three suspension orders and the changes in the geopolitical, technological and macroeconomic environment, as well as their consequences. 57      In addition, point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 requires there to be ‘extreme urgency brought about by unforeseeable events’. In other words, that provision requires a causal link between the unforeseeable event and the extreme urgency resulting therefrom (see, to that effect, judgment of 6 September 2023, Enmacc v Commission, T‑1/23, not published, EU:T:2023:506, paragraph 41 and the case-law cited). However, it does not require that the unforeseeable events relied on by the contracting authority immediately precede the launch of the procedure at issue. 58      Therefore, contrary to what the applicant suggests, the time elapsed between the events relied on and the launch of the procedure at issue does not necessarily call into question the unforeseeability of the events relied on. 59      It follows that, in the circumstances of the present case, the Commission was entitled, without exceeding the limits of its discretion, to take the view that the COVID-19 pandemic, the three suspension orders and the geopolitical, technological and macroeconomic changes constituted unforeseeable events within the meaning of point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046. 60      The applicant further submits, in essence, that the events relied on by the Commission, dating respectively from 2020, 2022 and 2023, and which were previously relied on by the Commission in April and August 2023, cannot give rise to a situation of extreme urgency in December 2024. 61      In that regard, first, it should be noted that the applicant’s line of argument is based on the premiss that the existence of extreme urgency must be assessed at the date of adoption of the contested decision, namely in December 2024. However, the existence of such urgency can be assessed only at the date on which the procedure at issue was launched, namely in November 2023, since it was on that date that the Commission decided to launch that procedure by means of a negotiated procedure without prior publication of a contract notice. In that regard, the applicant, in any case, acknowledged at the hearing that the conditions for the use of that procedure and, in particular, the condition relating to the existence of extreme urgency must be satisfied at the time when the contracting authority decides to launch the procedure, and not at the time of the award of the contract. 62      Secondly, for the reasons already set out in paragraph 57 above, since there is a causal link between the unforeseeable events and the extreme urgency resulting therefrom, the fact that the unforeseeable events relied on by the contracting authority do not immediately precede the launch of the procedure at issue does not necessarily call into question the fact that they gave rise to a situation of extreme urgency at the time of the launch of that procedure. 63      Thirdly, it should be noted that the contract signed in the context of the procurement procedure with reference DIGIT/A3/PN/2019/026, the purpose of which was to ensure continuity of service by the TESTA network until migration to the new contractor to be selected at the end of the procedure with reference DIGIT/A3/PR/2019/RP/010, allowed for the performance of certain contracts only until 17 December 2024 (see paragraph 7 above). Following the cancellation of the call for tenders with reference DIGIT/A3/PR/2019/RP/010 in April 2023, resulting from the unforeseeable events relied on, it proved necessary to ensure, as a matter of urgency, the continuity of the new generation TESTA network services provided under the contract with reference DIGIT/A3/PN/2019/026 beyond 17 December 2024. 64      In the present case, the contract was technically complex and involved the development of IT systems. Consequently, the Commission could reasonably take the view that, at the date the procedure at issue was launched, extreme urgency had been brought about by the unforeseeable events relied on, since only 13 months separated that launch date, namely 17 November 2023, from the date on which continuity in the provision of TESTA network services was, at the latest, to be ensured, namely 18 December 2024. 65      For example, as regards the negotiated procedure without a prior call for competition in 2020, 11 months had elapsed between the launch of the procedure and the award of the corresponding contract (see paragraph 7 above). 66      It follows that, in the circumstances of the present case, the Commission was entitled, without exceeding the limits of its discretion, to take the view that extreme urgency had been brought about by unforeseeable events relied on, within the meaning of point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046. 67      It follows from the foregoing considerations that the complaint alleging the absence of extreme urgency brought about by unforeseeable events must be rejected. –       The complaint alleging that the reasons for urgency are attributable to the Commission 68      According to the applicant, the reasons justifying the alleged extreme urgency are attributable to the Commission itself. If the Commission had acted diligently, it would have launched a new public procurement process as soon as the circumstances relied on were known, in 2022, and it would have had sufficient time not to have had to make a new direct award to Deutsche Telekom. 69      The Commission disputes that line of argument. 70      It is apparent from point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 that, in order to use the negotiated procedure without prior publication of a contract notice, the circumstances justifying the extreme urgency must not be attributable to the contracting authority. 71      It follows from this that, if the contracting authority unduly delayed launching the procurement procedure, the extreme urgency is attributable to it at least in part, with the result that the use of the negotiated procedure without prior publication of a contract notice is precluded (see judgment of 6 September 2023, Enmacc v Commission, T‑1/23, not published, EU:T:2023:506, paragraph 91 and the case-law cited). 72      It must be ascertained whether the Commission unduly delayed launching the procedure at issue in the present case with the result that the causal link between the unforeseeable event and the extreme urgency was broken. 73      The applicant criticises the Commission for not having launched a new call for tenders in 2022. In that regard, it is true that the COVID-19 pandemic and the war in Ukraine began, respectively, in March 2020 and in February 2022. However, as stated in paragraph 52 above, it is not only the onset of those events, but also their duration and the scale of the consequences which they have entailed that constitute unforeseeable events. 74      Accordingly, in 2022, the duration and consequences of the war in Ukraine were not yet known, in particular as regards the requirements relating to the TESTA network, making it necessary to strengthen the protection of the EU’s information assets and the security measures against external threats and to ensure sufficient protection of data exchanged between national administrations and EU institutions, bodies, offices and agencies (see paragraph 16 above). 75      In 2022, the Commission could also not have foreseen that a third suspension order would be adopted by the EU Courts on 14 March 2023, bringing the total duration of the suspension of the signing of the contract in the call for tenders with reference DIGIT/A3/PR/2019/RP/010 to one year. As stated in paragraphs 53 and 54 above, it is true that the three suspension orders, dated 1 April 2022, 22 July 2022 and 14 March 2023, respectively, predate the launch of the procedure at issue by several months. However, those three successive orders, taken as a whole, constitute an unforeseeable event which gave rise to a situation of prolonged uncertainty concerning the signing of the contract in the context of the call for tenders with reference DIGIT/A3/PR/2019/RP/010. 76      Consequently, as the Commission correctly argues, it cannot be criticised for not having launched a new call for tenders in 2022. 77      Nor does the chronology of subsequent events allow for a finding of a lack of diligence on the part of the Commission. During the seven-month period which elapsed between the third suspension order (order of 14 March 2023, Telefónica de España v Commission, C‑141/23 P(R)-R, not published, EU:C:2023:292) and the launch of the procedure at issue, the Commission first cancelled the call for tenders with reference DIGIT/A3/PR/2019/RP/010 two weeks after the publication of that order, on 4 April 2023. It next amended the contract with reference DIGIT/A3/PN/2019/026, the purpose of which was to ensure continuity of service by the TESTA network until migration to the new contractor to be selected at the end of the procedure with reference DIGIT/A3/PR/2019/RP/010, four months later, on 18 August 2023 (see paragraph 19 above). Finally, it launched the procedure at issue three months later, on 17 November 2023. 78      Therefore, nor do those facts make it possible to establish that the Commission unduly delayed launching a procurement procedure with the result that the causal link between the unforeseeable event and the extreme urgency was broken. 79      It follows from the foregoing considerations that the complaint alleging that the reasons for urgency are attributable to the Commission must be rejected. –       The complaint based on the possibility of complying with the time limits laid down in Regulation 2018/1046 for an urgent open or restricted procedure 80      According to the applicant, the Commission had sufficient time, after the circumstances relied on arose, to comply with the time limits laid down in points 24, 26 and 41 of Annex I to Regulation 2018/1046. It was not impossible to migrate to a new network or to have a new network fully operational by the expiry of the previous TESTA contract, and therefore the need to continue to operate on the current network until the replacement solution was fully operational does not justify the contested decision. 81      The Commission disputes that line of argument. 82      In that regard, it is apparent from point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 that the contracting authority may use a negotiated procedure without prior publication of a contract notice where, for reasons of extreme urgency brought about by unforeseeable events, it is impossible to comply with the time limits laid down in points 24, 26 and 41 of that annex to Regulation 2018/1046. 83      In the contested decision, the Commission stated that, due to the expiry of the previous TESTA contract on 17 December 2024 and the launch of a new strategy no longer based on the existing TESTA model of a single service contract but on an IT service-oriented model, requiring the design and the launch of a significant number of procurement procedures and the implementation of a significant number of services, it was impossible to comply with the time limits laid down by Regulation 2018/1046 for an urgent open or restricted procedure. The process of migrating the services between the old and new networks would have lasted at least two years (see paragraph 25 above). 84      Therefore, the schedule set by the Commission for the conduct of the procedure at issue was drawn up by taking account of objective factors, that is to say, in particular, the expiry of the previous TESTA contract on 17 December 2024. On account of the necessity of ensuring continuity in the provision of new generation TESTA network services beyond that date, the Commission considered that the contract for the supply of services had to be signed no later than that date. 85      Next, it is necessary to examine the Commission’s justification to the effect that, for the purpose of awarding the contract at issue, it could not have used an open or restricted procedure applying the time limits in respect of urgent cases laid down in point 26.1(a) and (b) of Annex I to Regulation 2018/1046. 86      In accordance with point 24.2 of Annex I to Regulation 2018/1046, in open procedures, the time limit for receipt of tenders is to be no less than 37 days from the day following dispatch of the contract notice. According to point 24.3 of that annex, in restricted procedures, the time limit for receipt of requests to participate is to be no less than 32 days from the day following dispatch of the contract notice. 87      In accordance with point 26.1(a) of Annex I to Regulation 2018/1046, in open procedures, where duly substantiated urgency renders impracticable the minimum time limit for the receipt of tenders of 37 days from the day following dispatch of the contract notice laid down in point 24.2 of that annex, the contracting authority may set a time limit for the receipt of tenders which may not be less than 15 days from the date of dispatch of the contract notice. 88      In accordance with point 26.1(b) of that annex, in restricted procedures, where duly substantiated urgency renders impracticable the minimum time limit for the receipt of tenders of 32 days from the day following dispatch of the contract notice laid down in point 24.3 of that annex, the contracting authority may set a time limit for the receipt of tenders which may not be less than 10 days from the date of dispatch of the invitation to tender. 89      Moreover, it is apparent from Article 175(2) and (3) of Regulation 2018/1046, read in conjunction with point 35 of Annex I to that regulation, that the contracting authority is required to comply with a standstill period of between 10 and 15 days before the signing of the contract, even where the time limits in respect of urgent cases laid down in point 26.1(a) and (b) of that annex are applied (see, to that effect, judgment of 6 September 2023, Enmacc v Commission, T‑1/23, not published, EU:T:2023:506, paragraph 71). 90      Furthermore, as the Commission correctly states, where the contracting authority assesses whether the time limit in an open or restricted procedure in which the time limit in respect of urgent cases is to be applied is compatible with the extreme urgency brought about by an unforeseeable event, it must also take into account the length of time needed to evaluate the tenders. In order to estimate the foreseeable duration of the tender evaluation process, the contracting authority may, inter alia, take into consideration the technical nature of the contract in question (see, to that effect, judgment of 6 September 2023, Enmacc v Commission, T‑1/23, not published, EU:T:2023:506, paragraph 74). 91      In the present case, the contract at issue, involving the development of IT systems, was technically complex in nature. 92      Further, the Commission explained at the hearing, without being contradicted by the applicant in that regard, that, in addition to the duration of the tender evaluation process, there is the time required for the migration of services from the existing network to the new network, which comprises a planning and tenderer consultation phase, lasting two to three months; a discovery phase, lasting several months, aimed at highlighting the differences between the previous tenderer and the new one; a phase for setting up the new network, lasting three to four months; a pilot migration phase, lasting two to three months, and, finally, a migration roll-out, lasting nine to fifteen months, that is to say a total duration of at least two years to ensure a complete migration. 93      It follows that, even assuming that the Commission had launched an open or restricted procedure immediately after the cancellation of the call for tenders with reference DIGIT/A3/PR/2019/RP/010 in April 2023, and even without taking into account the time required to evaluate the tenders, the remaining period of one year and eight months until the expiry of the previous TESTA contract in December 2024 would not have been sufficient to ensure a complete migration before that date. 94      The fact that the deadline for the receipt of tenders could be brought forward by three weeks by applying the time limits in respect of urgent cases provided for in point 26.1(a) and (b) of Annex I to Regulation 2018/1046 would, in that regard, have had only a limited impact on the foreseeable duration of an open or restricted procedure. 95      It follows that, having regard in particular to the technically complex nature of the contract at issue and the foreseeable duration of the processes of evaluating the tenders and of migration of the services from the existing network to the new network, the Commission was entitled to take the view that, at the date of launching the procedure at issue, use of an urgent open or restricted procedure could not ensure compliance with the provisional schedule envisaged. 96      Thus, it must be stated that the Commission duly substantiated the argument that the extreme urgency brought about by an unforeseeable event made it impossible to comply with the time limits in an urgent procedure in which the time limits in respect of urgent cases laid down in point 26.1(a) and (b) of Annex I to Regulation 2018/1046 would apply. 97      It follows from the foregoing considerations that it is necessary to reject the complaint based on the possibility of complying with the time limits laid down in Regulation 2018/1046 for an urgent open or restricted procedure. –       The complaint alleging the absence of necessity of the procedure at issue 98      According to the applicant, it was not ‘strictly necessary’ to proceed to a new direct award to Deutsche Telekom in December 2024, since a migration to a new network could have been organised if the Commission had acted diligently. 99      The Commission disputes that line of argument. 100    The second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 states that ‘the contracting authority may use the negotiated procedure without prior publication of a contract notice … in so far as is strictly necessary’. 101    In the present case, the Commission stated in the contested decision that the procedure at issue and the resulting contract were strictly necessary, since they covered only the period necessary to carry out the migration to the new network planned for the end of 2027 (see paragraph 26 above). 102    In that regard, it should be noted that the estimated duration of the contract awarded by the contested decision is three years (see paragraph 21 above), which, according to the Commission, corresponds to the period required to complete the migration to the new network. 103    In the contested decision, the Commission also highlighted the necessity of ensuring continuity in the provision of new generation TESTA network services beyond 17 December 2024 after the cancellation of the call for tenders with reference DIGIT/A3/PR/2019/RP/010 in April 2023, in respect of critical and sensitive services (see paragraph 22 above). 104    In that regard, the Commission emphasised the negative effects of any potential delay in the actual commencement of the provision of the services of the contract at issue. In particular, it made clear that ‘failing to find a sustainable solution ensuring business continuity for the provision of the TESTA-ng services beyond 18 December 2024 would have had severe operational impact and inflict considerable harm on the reputation of the Commission and the [European Union]’. 105    Those factors were confirmed at the hearing by the Commission, which further explained that the TESTA network provided access to more than 150 information systems, over 20% of which are of critical importance to the European Union, such as the Schengen Information System and the Visa Information System. Accordingly, an interruption to TESTA services, even for just a few hours, would be likely to have consequences on the opening of the airports and borders of the European Union, access to criminal records and the exchange of criminal case files, as well as exports and cross-border customs transactions. In that regard, the applicant has not contested the essential scope and importance of the TESTA network for the European Union. 106    It follows that, in the light of the expiry of the previous TESTA contract in December 2024 and the challenges associated with business continuity for the provision of new generation TESTA services, the Commission duly justified its use of the procedure at issue in so far as is strictly necessary, within the meaning of point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046. 107    As regards the applicant’s argument that migration to a new network could have been organised if the Commission had acted diligently, it should be noted that that argument concerns the causal link between the unforeseeable event and the extreme urgency resulting therefrom and that it has already been examined, and rejected, in paragraph 78 above, in the context of the complaint that the reasons for urgency are attributable to the Commission. 108    It follows from the foregoing considerations that the complaint alleging the absence of necessity of the procedure at issue must be rejected. 109    It follows that the first plea, alleging infringement of Article 164(5)(f) and point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046, must be rejected.  The second plea, alleging infringement of the principles of fair competition, transparency and equal treatment 110    The applicant argues that the contested decision artificially limits competition in the services concerned, which amounts to a circumvention of the fundamental principles set out in Article 18(1) of 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), namely, first, the principle of transparency, since the interested economic operators do not know why the contract at issue was not awarded through a new call for competition, or when it will be open for competition again; secondly, the principle of equal treatment, with the interested economic operators having been deprived of a chance to obtain a share of the contract at issue for more than 13 years, to the advantage of Deutsche Telekom; and, thirdly, the principle of free competition, since the market in question has now been closed to competition for an abnormal amount of time, without a reasonable and proportionate reason. 111    The Commission disputes that line of argument. 112    Article 18(1) of Directive 2014/24 provides as follows: ‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner. The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.’ 113    As a preliminary point, it should be pointed out, as the Commission noted, that most of the arguments raised by the applicant in the context of the second plea relate not only to the contested decision, but also to other decisions taken by the Commission since 2012 concerning other procurement procedures, including the negotiated procedures without a prior call for competition in 2017 and 2020 and the Commission’s decision to amend the contract with reference DIGIT/A3/PN/2019/026 without launching a new procurement procedure (see paragraphs 5, 7 and 19 above). In so far as those decisions are not the subject matter of the action, those arguments must be regarded as ineffective. 114    As regards the principle of transparency, it must be borne in mind that, where a derogation from the public procurement provisions is expressly authorised, if the conditions for that derogation are satisfied and a negotiated procedure without prior publication of an invitation to tender is thus justified, there can be no obligation to advertise. Accordingly, the principles which flow from the Treaty cannot impose a requirement of prior publicity where the applicable provisions expressly provide for a derogation, or that derogation would be nugatory (see judgment of 6 September 2023, Enmacc v Commission, T‑1/23, not published, EU:T:2023:506, paragraph 119 and the case-law cited). 115    The applicant argues that the interested economic operators do not know why the contract at issue was not awarded through a new call for competition. It suffices to note in that regard that, as is apparent from paragraphs 22 to 26 above, and as the Commission has correctly argued, the contested decision expressly states the legal basis for the decision to launch the negotiated procedure and the reasons for which the Commission considers all of the conditions laid down in point (c) of the second subparagraph of point 11.1 of Annex I to Regulation 2018/1046 to have been met. 116    The applicant further argues that the interested economic operators do not know when the contract at issue will be open for competition again. 117    In that regard, it should be recalled that the first subparagraph of point 2.2 of Annex I to Regulation 2018/1046 states: ‘The contracting authority may make known its intentions of planned procurement for the financial year through the publication of a prior information notice. …’ 118    Since the first subparagraph of point 2.2 of Annex I to Regulation 2018/1046 presents the publication of a prior information notice as merely an option for the contracting authority, it follows that there is no obligation to publicise future procurement procedures. 119    It follows that the complaint relating to the principle of transparency must be rejected. 120    As regards the principle of equal treatment, it should be borne in mind that, for the same reasons as those set out in paragraph 114 above, where the contracting authority has legitimately established that the conditions for using the negotiated procedure without prior publication are satisfied, it cannot be criticised for having failed to observe the principle of equal treatment by not sending an invitation to tender to certain undertakings operating on the market concerned by that procedure (judgment of 6 September 2023, Enmacc v Commission, T‑1/23, not published, EU:T:2023:506, paragraph 120). 121    In the present case, it is apparent from the examination of the first plea that the Commission has established that the exceptional circumstances provided for in Article 164(5)(f) of Regulation 2018/1046 and set out in point (c) of the second subparagraph of point 11.1 of Annex I to that regulation did indeed exist. 122    It follows that the applicant cannot argue that, since the interested economic operators were deprived of the opportunity to obtain a share of the contract at issue, the Commission infringed the principle of equal treatment. 123    The complaint relating to the principle of equal treatment must therefore be rejected. 124    As regards the principle of free competition, in the present case the Commission used the negotiated procedure without prior publication, referred to in Article 164(1)(d) of Regulation 2018/1046, in accordance with the conditions laid down by that regulation. Therefore, in accordance with Article 160(2) of Regulation 2018/1046, the principle that all contracts are to be put out to competition on the broadest possible basis does not apply to the contract at issue (see paragraph 37 above). 125    It follows that the complaint relating to the principle of free competition must be rejected. 126    It follows that the second plea, alleging infringement of the principles of fair competition, transparency and equal treatment, must be rejected and, consequently, the action in its entirety must be dismissed.  Costs 127    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1.      Dismisses the action; 2.      Orders BT Global Services Belgium to pay the costs. Sampol Pucurull Pynnä Stancu Delivered in open court in Luxembourg on 1 July 2026. V. Di Bucci   S. Papasavvas Registrar   President *      Language of the case: English.