Judgment of the General Court (Fifth Chamber, sitting with five Judges) 1 July 2026

Provisional text

JUDGMENT OF THE GENERAL COURT (Fifth Chamber, sitting with five Judges)

1 July 2026 ( * )

( Public service contracts – Tendering procedure – Provision of satellite communications, equipment and related services – Rejection of a tenderer’s bid – Award of the contract to another tenderer – Regulation (EU, Euratom) 2018/1046 – Award criteria – Obligation to state reasons – Obligation to examine tenders in accordance with the criteria set out in the procurement documents – Manifest error of assessment – Equal treatment – Non-contractual liability – Loss of opportunity – Compensation )

In Case T‑105/24,

Airbus Defence and Space SAS, established in Toulouse (France),

Marlink Events SAS, established in Choisy-le-Roi (France),

represented by F. Salat-Baroux, M. Lordonnois and Q. Lejeune, lawyers,

applicants,

v

European Defence Agency (EDA), represented by G. Serra and E. Robert, acting as Agents, and by P. de Bandt, Z. Irusta Ortega and M.-R Gherghinaru, lawyers,

defendant,

THE GENERAL COURT (Fifth Chamber, sitting with five Judges),

composed, at the time of the deliberations, of S. Papasavvas, President, J. Svenningsen, C. Mac Eochaidh (Rapporteur), J. Martín y Pérez de Nanclares and M. Stancu, Judges,

Registrar: H. Eriksson, Administrator,

having regard to the written part of the procedure, in particular:

– the measures of organisation of procedure of 16 October 2024 and the responses from the EDA and from the applicants, lodged at the Registry of the General Court on 31 October 2024 and 4 November 2024 respectively,

– the measure of inquiry of 16 December 2024 and the response from the EDA of 7 January 2025,

– the measures of organisation of procedure of 31 March 2025 and the responses from the applicants and from the EDA, lodged at the Court Registry on 16 April 2025 and 25 April 2025 respectively,

– the measure of inquiry of 21 May 2025 and the response from the EDA of 23 May 2025,

– the written observations of the applicants and their representatives and those of the EDA, lodged at the Court Registry on 13 June 2025 and 15 July 2025 respectively,

– the measures of organisation of procedure of 24 October 2025 and the responses from the applicants and from the EDA, lodged at the Court Registry on 17 November 2025,

– the measure of inquiry of 6 November 2025 and the response from the EDA of 21 November 2025,

– the written observations of the applicants’ representatives, lodged at the Court Registry on 12 January 2026,

further to the hearing on 3 September 2025, which was conducted in part in camera,

gives the following

Judgment

1 By their action, the applicants, Airbus Defence and Space SAS and Marlink Events SAS, seek, on the basis of Article 263 TFEU, the annulment of the decision of the European Defence Agency (EDA) of 12 December 2023 rejecting the tender submitted by the consortium which they formed together (‘the consortium’) in call for tenders 23.ISE.JP.001 entitled ‘Provision of C, Ku, (civ)Ka, L and UHF Bands Satellite Communications, (mil)Ka & X Bands Equipment and Related Services’ (‘the contract at issue’) and awarding the contract to Telespazio France SAS (‘the decision of 12 December 2023’). They further seek the annulment of the letter from the EDA of 23 January 2024, by which, in particular, it confirmed to them the result of the tendering procedure (‘the letter of 23 January 2024’), and the annulment of the decision of the EDA of 24 January 2024 to sign the contract at issue with Telespazio France. Furthermore, on the basis of Article 268 TFEU, the applicants seek compensation for the damage which they claim to have suffered as a result of those acts.

I. Background to the dispute

2 By a contract notice of 25 March 2023, published in the Supplement to the Official Journal of the European Union (OJ 2023/S 104-326179), pursuant to a joint procurement agreement concluded between the EDA and a number of Member States and EU institutions, the EDA launched an open tendering procedure for the award of the contract at issue.

3 The contract at issue took the form of a framework agreement (‘the framework agreement’) with a maximum duration of 48 months, consisting in providing the Member States and the bodies which were parties to the joint procurement agreement with satellite communication services, equipment and various related services.

4 All the rules to be observed by tenderers were set out in the Tender Specifications and the requirements to be satisfied for the requested services were described in the Technical Specifications for the contract (‘the Technical Specifications’).

5 In accordance with section 2.14.4.5 of the Tender Specifications, which concerned the final evaluation, the contract at issue was to be awarded to the tenderer whose tender was the most economically advantageous on the basis of two score criteria, a technical criterion and a financial criterion. Both those criteria were composed of sub-criteria which were, in some cases, themselves composed of different sub-criteria.

6 On 4 December 2023, the committee responsible for evaluating the tenders delivered its evaluation report on the two tenders received for the contract at issue, namely the tender submitted by the consortium and the tender submitted by Telespazio France.

7 On 12 December 2023, on the basis of the award recommendation made in the conclusion of the evaluation report, the EDA adopted the decision of 12 December 2023.

8 On 13 December 2023, the EDA notified Airbus Defence and Space, as the leader of the consortium, of the decision of 12 December 2023. An extract of the evaluation report was annexed to that decision.

9 A standstill period in respect of the signing of the contract at issue commenced from that date, allowing tenderers 10 days to submit to the EDA comments, observations and requests for revision or correction of the evaluation.

10 On 21 and 22 December 2023, Airbus Defence and Space, on behalf of the consortium, made a number of observations concerning the result of the selection procedure and the purported non-compliance of the tender submitted by Telespazio France.

11 On 8 January 2024, the EDA sent simultaneously to the consortium and to Telespazio France its decision to suspend the signing of the framework agreement with Telespazio France in order to examine the observations made by the consortium.

12 On 12 January 2024, the EDA sent Telespazio France a series of questions concerning certain aspects of its tender, to which Telespazio France responded on 16 January 2024.

13 On 16 January 2024, the applicants requested the EDA to provide them with the scores obtained by each tenderer for the financial sub-criteria and the sub-parts of those financial sub-criteria.

14 By the letter of 23 January 2024, the EDA informed the applicants that it had lifted the suspension of the signing of the contract at issue, confirmed to them the result of the tendering procedure and responded to some of their observations and requests (see paragraphs 10 and 13 above). In particular, the EDA mentioned that it refused the request mentioned in paragraph 13 above.

15 By act of 24 January 2024 (‘the decision of 24 January 2024’), the signing of the framework agreement between the EDA and Telespazio France was approved.

16 By notice of 29 January 2024 (‘the award notice’), the EDA made public the award of the contract at issue to Telespazio France.

II. Forms of order sought

17 The applicants claim that the General Court should:

– annul the decision of 12 December 2023;

– annul the letter of 23 January 2024;

– annul the decision of 24 January 2024;

– order the EDA to pay, first, Airbus Defence and Space compensation of EUR 21 650 734 and, second, Marlink Events compensation of EUR 2 552 350 corresponding to the damage suffered as a result of the contested acts, those amounts to be increased by default and capitalised interest;

– order the EDA to pay the costs.

18 The EDA contends that the General Court should:

– dismiss the action;

– order the applicants to pay the costs.

III. Law

A. The applications for annulment

1. Admissibility of the applications for annulment

19 Without formally raising a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court, the EDA claims that the applications for annulment of the letter of 23 January 2024 and of the decision of 24 January 2024 and the application for annulment of the award notice made by the applicants should be dismissed as inadmissible.

(a) The plea of inadmissibility directed against the application for annulment of the letter of 23 January 2024

20 The EDA submits that the letter of 23 January 2024 does not have effects which are distinct from those arising from the decision of 12 December 2023 in so far as, after examining the observations made by the consortium, it simply confirms the results of the evaluation set out in the decision of 12 December 2023, that it therefore constitutes a measure which merely confirms the decision of 12 December 2023 and that, accordingly, it is not an actionable measure.

21 The applicants contend that the application for annulment of the letter of 23 January 2024 is admissible.

22 An action for the annulment of a decision merely confirming a previous decision which has not been challenged and has therefore become final is inadmissible. A decision is regarded as a mere confirmation of a previous decision if it contains no new factors as compared with the previous decision and if it was not preceded by any re-examination of the situation of the addressee of that earlier decision (see judgment of 8 July 2020, Securitec v Commission , T‑661/18, EU:T:2020:319, paragraph 22 and the case-law cited).

23 Before examining whether the letter of 23 January 2024 contains a decision that merely confirms the decision of 12 December 2023, it is necessary to ascertain whether that previous decision had become final in relation to the applicants at the time the present action was brought (see judgment of 8 July 2020, Securitec v Commission , T‑661/18, EU:T:2020:319, paragraph 23 and the case-law cited).

24 Where the confirmed decision has not become final by the time the action for annulment is brought, the person concerned is entitled to challenge either the confirmed decision, the confirmatory decision, or both (see judgment of 8 July 2020, Securitec v Commission , T‑661/18, EU:T:2020:319, paragraph 24 and the case-law cited).

25 In that regard, it should also be noted that, under the sixth paragraph of Article 263 TFEU, the proceedings provided for in that article are to be instituted within two months of the publication of the measure, or of its notification to the plaintiff or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In accordance with Article 60 of the Rules of Procedure, that time limit may be extended on account of distance.

26 In the present case, the action for annulment was brought on 21 February 2024, on which date the time limit for bringing proceedings against the decision of 12 December 2023, which was notified to the applicants on 13 December 2023, had not yet expired. That is not disputed by the EDA.

27 In accordance with the case-law referred to in paragraph 24 above, the applicants were therefore entitled to direct their action not only against the decision of 12 December 2023, but also against the decision confirming that decision contained in the letter of 23 January 2024.

28 Consequently, the plea of inadmissibility raised by the EDA must be rejected.

(b) The plea of inadmissibility directed against the application for annulment of the decision of 24 January 2024

29 The EDA asserts that the applicants are not entitled to challenge the lawfulness of the decision of 24 January 2024 in so far as it constitutes a measure purely implementing the decision of 12 December 2023 and it is not therefore an actionable measure.

30 The applicants dispute that argument. They submit in that regard that, because the award of the contract at issue was still to lead to the effective signing of that contract with Telespazio France, the decision of 24 January 2024 produced legal effects which were distinct from the decision of 12 December 2023 and from the letter of 23 January 2024 and resulted in the certain performance of the contract, thus causing them direct and certain damage. In any event, the applicants argue that, if the decision of 24 January 2024 was considered to be confirmatory of the decision of 12 December 2023, it should be found that, since the latter decision was still not final at the time the application was lodged, they were also entitled to challenge the decision of 24 January 2024.

31 As regards the question whether the decision of 24 January 2024 constitutes an actionable measure, it should be recalled that, under Article 263 TFEU, the EU Courts review only the legality of acts adopted by the institutions and bodies, offices or agencies of the Union intended to produce binding legal effects vis-à-vis third parties.

32 It is settled case-law that claims for annulment, in the context of Article 263 TFEU, of acts adopted by the institutions in a purely contractual context, from which they are inseparable, are inadmissible (see judgment of 21 February 2024, Inivos and Inivos v Commission , T‑38/21, EU:T:2024:100, paragraph 82 and the case-law cited).

33 In the present case, it is sufficient to note, first, that the signing of the framework agreement with Telespazio France is, by definition, an inherent part of the contractual process, without it being possible to identify, in the present case, a decision separable from that process and, second, that the framework agreement produces and exhausts all its effects in the context of the contractual relationship between the parties in question to the contract, in respect of which the applicants are third parties.

34 It follows from the above considerations that the application for annulment of the decision of 24 January 2024 must be rejected as inadmissible.

(c) The plea of inadmissibility concerning the award notice

35 The EDA claims that the applicants are not entitled to seek the annulment of the award notice in so far as, in its view, that act simply makes public the content of the decision of 12 December 2023 and it cannot be regarded as an actionable measure since it constitutes a purely implementing measure.

36 The applicants have not disputed that argument.

37 It is sufficient to note in that respect that the award notice does not constitute a measure the annulment of which has been requested by the applicants in the present action and that there is therefore no need for the Court to rule on the lawfulness of that measure.

38 The plea of inadmissibility raised by the EDA must therefore be rejected.

2. The merits of the application for annulment of the contested decisions

39 In support of the application for annulment of the decision of 12 December 2023 and of the letter of 23 January 2024 (‘the contested decisions’), the applicants raise seven pleas in law, alleging, in essence:

– first, an infringement of the obligation to state reasons and Article 170(3) of 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), as amended by Regulation (EU, Euratom) 2022/2434 of the European Parliament and of the Council of 6 December 2022 (OJ 2022 L 319, p. 1) (‘the Financial Regulation of 2018’);

– second, a manifest error of assessment and an infringement of Articles 151 and 167 of the Financial Regulation of 2018, the principle of equal treatment and Article 56 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), committed in reviewing the compliance of the tender submitted by Telespazio France;

– third, manifest errors of assessment made in reviewing the tender submitted by Telespazio France and the tender submitted by the consortium in respect of optional requirement O-007 and a distortion of the evidence in the case file;

– fourth, a manifest error of assessment made in reviewing the tender submitted by Telespazio France in respect of the ‘Scenario C’ criterion and a distortion of the evidence in the case file;

– fifth, an error in law and a manifest error of assessment made in examining the tender submitted by Telespazio France in respect of optional requirements O-002 and O-003 and a distortion of the evidence in the case file;

– sixth, an error in law, a manifest error of assessment and an infringement of the principle of equal treatment committed in examining the tender submitted by the consortium in respect of the ‘Equipment’ criterion and a distortion of the evidence in the case file;

– seventh, a manifest error of assessment made in examining the tender submitted by the consortium in respect of the ‘Scenario B’ criterion and a distortion of the evidence in the case file.

(a) The first plea in law, alleging an infringement of the obligation to state reasons and Article 170 (3) of the Financial Regulation of 2018

40 The applicants submit that the EDA committed an infringement of its obligation to state reasons and Article 170(3) of the Financial Regulation of 2018 in so far as it refused their request for the disclosure of the scores obtained by the two tenderers for the financial sub-criteria and their sub-parts (see paragraph 14 above).

41 The EDA disputes those arguments.

42 It argues that, in the decision of 12 December 2023, it disclosed to the applicants the name of the successful tenderer, Telespazio France, as well as the characteristics and advantages of its tender and the value of the framework agreement. In addition, it asserts that a table showing, for each tender, the total scores for the technical criterion and the financial criterion, the weighted scores for those two criteria and the overall score was annexed to that decision. It maintains that that information was sufficient to satisfy its obligation to state reasons.

43 In addition, the EDA argues that it is not required under that obligation also to grant access to the scores for the financial sub-criteria and their sub-parts in so far as disclosure of that information constituted an infringement of the rules on confidentiality of tenders and could clearly prejudice the commercial interests of Telespazio France and its subcontractors by revealing the prices offered by it in its tender.

44 Under Article 33(1) and Article 48 of Council Decision (EU) 2016/1353 of 4 August 2016 concerning the financial rules of the EDA and repealing Decision 2007/643/CFSP (OJ 2016 L 219, p. 98), the EDA is subject, in the present case, to the provisions of the Financial Regulation of 2018 as regards procurement. It was, moreover, on the basis of Article 170(3) of the Financial Regulation that the EDA refused the applicants’ request to obtain the scores for the financial sub-criteria and their sub-parts. That article corresponds to Article 113(2) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), a regulation which is expressly referred to in Article 33(1) of Decision 2016/1353.

45 Article 170(3)(a) of the Financial Regulation of 2018 provides that, subject to certain exceptions, the contracting authority must inform each 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 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’.

46 That manner of proceeding satisfies the purpose of the obligation to state reasons laid down in Article 296 TFEU, whereby the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and to enable the Court to exercise its power of review (see, by analogy, judgment of 17 October 2012, Evropaïki Dynamiki v Court of Justice , T‑447/10, not published, EU:T:2012:553, paragraph 72).

47 Furthermore, under Article 55(1) of Directive 2014/24, ‘contracting authorities shall as soon as possible inform each … tenderer of decisions reached concerning the conclusion of a framework agreement [and] the award of the contract’.

48 Under Article 55(2)(c) of Directive 2014/24, on request from the candidate or tenderer concerned, the contracting authority must as quickly as possible, and in any event within 15 days from receipt of a written request, inform any tenderer that has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement. Article 55(3) of Directive 2014/24 provides, however, that ‘contracting authorities may decide to withhold certain information referred to in paragraphs 1 and 2, regarding the contract award [and] the conclusion of framework agreements …, where the release of such information would impede law enforcement or would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or might prejudice fair competition between economic operators’.

49 The Court notes in that regard that there is a degree of symmetry between the obligations incumbent on the contracting authority under Article 55(2)(c) and (3) of Directive 2014/24 and the obligations arising from Article 170(3) of the Financial Regulation of 2018. The interpretation by the Court of Justice of Article 55(2)(c) and (3) of Directive 2014/24 is therefore relevant to the application of Article 170(3) of the Financial Regulation of 2018.

50 Accordingly, the Court of Justice has ruled that, in order to balance the prohibition on the disclosure of confidential information communicated by economic operators with the general principle of EU law relating to good administration, from which the obligation to state reasons arises, a contracting authority must indicate clearly the reasons it considers that the requested information, or at least some of it, is confidential (see, to that effect, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras , C‑927/19, EU:C:2021:700, paragraph 122).

51 In the present case, it is clear from the letter of 23 January 2024 that the EDA merely mentioned that the disclosure of financial scores, at the granular level requested by the applicants, would infringe the rules on confidentiality of tenders contained in section 2.13.3 of the Tender Specifications and would fundamentally prejudice the commercial interests of Telespazio France and its subcontractors by revealing confidential commercial information.

52 The Court considers in that respect, first, that the confidentiality of tenders cannot, in itself, preclude the granting of a request made pursuant to Article 170(3) of the Financial Regulation of 2018 if that provision is not to be deprived of its effectiveness.

53 Second, as is nevertheless required by the case-law cited in paragraph 50 above, the EDA did not explain in the letter of 23 January 2024 to what extent the disclosure of the scores for the financial sub-criteria and their sub-parts to the applicants was such as to prejudice the commercial interests of Telespazio France by revealing confidential commercial information concerning it. It was only in the defence that it offered the beginnings of an explanation that, by applying a rule of three, the disclosure of those scores could have led to the prices offered by Telespazio France being revealed.

54 It has already been ruled that, in order to fulfil its obligation to state reasons, a contracting authority cannot, in response to a request made pursuant to Article 170(3)(a) of the Financial Regulation of 2018, simply set out general and abstract assertions that the disclosure of the information requested by the unsuccessful tenderer could prejudice the commercial interests of certain economic operators. Rather, the contracting authority is expected to demonstrate specifically and precisely that the disclosure of the requested information would prejudice the commercial interests of tenderers (see, to that effect and by analogy, judgment of 29 April 2020, Intercontact Budapest v CdT , T‑640/18, not published, EU:T:2020:167, paragraph 50).

55 Furthermore, the principle of the protection of confidential information must be reconciled with the requirements of effective judicial protection. In the absence of sufficient information enabling it to ascertain whether the decision of the contracting authority to award the contract is vitiated by errors or unlawfulness, an unsuccessful tenderer will not, in practice, be able to rely on its right to an effective review (see, to that effect and by analogy, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras , C‑927/19, EU:C:2021:700, paragraphs 121 to 123).

56 Thus, in the present case, the complete lack of information regarding the components of the scores for the financial criterion was likely to deprive the applicants of the possibility to ascertain whether the contested decisions were vitiated by unlawfulness in that regard. It was therefore for the contracting authority to identify among the scores to which access was requested those which could, if appropriate, be communicated to the applicants, because they did not prejudice the legitimate commercial interests of Telespazio France, and the scores which could not be disclosed, explaining the reasons precluding such disclosure.

57 In the rejoinder, the EDA justifies its refusal to communicate the scores requested by the applicants with two new arguments, which must be rejected.

58 In a first argument, the EDA maintains that the communication to the applicants of the average prices of Telespazio France was likely to provide them with an advantage in that it would have enabled them ‘to know its commercial positions’. It should be noted in that regard that that argument is not sufficiently substantiated in so far as it is not explained what those ‘commercial positions’ are in the present case.

59 In a second argument, the EDA submits that the fact that the applicants, or at least one of them, occupied an important position in certain markets precludes the requested scores being disclosed to them. However, that argument is likewise insufficiently substantiated in so far as the EDA does not specify either the applicant concerned or the markets in question.

60 It follows from all the foregoing that, by failing to give a sufficiently detailed justification, in the letter of 23 January 2024, for refusing the applicants’ request, the EDA infringed Article 170(3) of the Financial Regulation of 2018 and thus disregarded the scope of its obligation to state reasons.

61 The first plea in law must therefore be upheld, without it being necessary to grant the request for measures of organisation of procedure made by the applicants seeking to obtain the disclosure of the detailed scores for the financial criterion.

62 To the extent that the application for annulment of the contested decisions contains a claim for compensation, however, it is appropriate, in the present case, to continue the examination of the application for annulment of the contested decisions, provided that the shortcomings in the reasoning of those decisions do not prevent the Court from exercising its power of review in relation to the other pleas raised by the applicants (see, to that effect, judgment of 5 March 2019, Eurosupport – Fineurop support v EIGE , T‑450/17, not published, EU:T:2019:137, paragraph 56).

(b) The second plea in law, alleging a manifest error of assessment and an infringement of Articles 151 and 167 of the Financial Regulation of 2018, the principle of equal treatment and Article 56 of Directive 2014/24 committed in reviewing the compliance of the tender submitted by Telespazio France

63 In the application, the applicants submit that the EDA committed a manifest error of assessment and an infringement of Article 167 of the Financial Regulation of 2018 in so far as it awarded the contract at issue to Telespazio France even though its tender did not comply with several mandatory requirements set out in the Technical Specifications, namely mandatory requirements M-001, M-002, M-009, M-014, M-022 and M-039.

64 In that regard, the applicants mention that certain satellite operators, namely [ confidential ], ( 1 ) had previously informed them that the consortium was the only tenderer which had requested a contractual undertaking for the call for tenders at issue, that Telespazio France therefore could not have concluded contracts with those satellite operators specifically for the purposes of the call for tenders at issue and that, consequently, it could not have provided proof in its tender that it had concluded a contract with those operators. The applicants add that, as [ confidential ] had expressly confirmed to them that Telespazio France had not concluded contracts with those companies for the call for tenders at issue, this meant that those satellite operators had to assume that contracts which they had been able to conclude with Telespazio France for other purposes could not, as they stood, cover the performance of the contract at issue.

65 In the written observations which they submitted to the Court on 13 June 2025 following the communication of an extract of the tender submitted by Telespazio France (‘the written observations of 13 June 2025’), the applicants further submit that the EDA infringed the principle of equal treatment and Article 56 of Directive 2014/24. The applicants assert in that regard that, in order to satisfy mandatory requirements M-001, M-009 and M-014 in the Technical Specifications, each tenderer had to provide ‘written proof’ of contracts which it had concluded with satellite operators, allowing those mandatory requirements to be addressed. However, according to the applicants, the tender submitted by Telespazio France did not include sufficient written proof in that regard, did not therefore comply with the Technical Specifications and should have been rejected by the EDA.

66 Furthermore, in those written observations, the applicants claim that the EDA infringed Article 151 of the Financial Regulation of 2018 in so far as it permitted Telespazio France to supplement its tender substantively by making several requests for clarification to it, asking it to send the written proof which had not been provided in its tender.

67 The EDA disputes those arguments.

68 In the defence, the EDA submits that it received sufficient written proof from Telespazio France that it had contracts with satellite operators to offer its services. In particular, the EDA asserts that Telespazio France was able to indicate contracts concluded with satellite operators covering the field of application of the contract and that it was irrelevant that certain satellite operators had informed the consortium that it was the only tenderer to have requested a contractual undertaking for the call for tenders.

69 In its written observations produced in response to the applicants’ written observations of 13 June 2025, the EDA reiterates that Telespazio France provided sufficient written proof in relation to requirements M-001, M-009 and M-014 in its tender. The EDA further submits, with regard to the requests for clarification sent to Telespazio France, that it was with a view to good administration and respect for the resulting duty of care that, each time it considered it necessary, it requested Telespazio France to provide information supplementary to that already submitted in the initial tender.

70 It should be noted as a preliminary point that the argument presented by the applicants in their written observations of 13 June 2025 (see paragraphs 65 and 66 above), which is based on matters of fact which came to light in the course of the procedure, namely on the extract of the tender submitted by Telespazio France which was communicated by the EDA further to the measure of organisation of procedure of 16 October 2024, is admissible in accordance with Article 84(1) of the Rules of Procedure.

71 As regards the substantive question whether the tender submitted by Telespazio France complied with all the mandatory requirements, under Article 167(1) of the Financial Regulation of 2018, contracts are to be awarded on the basis of award criteria provided that the contracting authority has verified, inter alia, that the tender complies with the minimum requirements specified in the procurement documents and that the candidate or tenderer meets the selection criteria specified in those documents. To that effect, Article 168(6) of the Financial Regulation of 2018 provides that ‘requests to participate and tenders which do not comply with all the minimum requirements set out in the procurement documents shall be rejected’. Similarly, it is apparent from point 29.3 of Annex I to the Financial Regulation of 2018, which refers to point 12.2 of that Annex, that tenders which do not comply with the minimum requirements specified in the procurement documents are not admissible.

72 In that context, it is for the Court to determine whether the interpretation attributed by the contracting authority to a condition laid down in the contract documents is correct. That condition must be interpreted in the light of its subject matter, broad logic and wording (see, to that effect, judgment of 10 December 2009, Antwerpse Bouwwerken v Commission , T‑195/08, EU:T:2009:491, paragraphs 51 and 53).

73 As regards the possibility to request a candidate to correct manifest material errors in the application documents, the second paragraph of Article 151 of the Financial Regulation of 2018 permits the authorising officer responsible, where a participant fails to submit evidence or to make statements, to ask it to provide the missing information or to clarify supporting documents. The third paragraph of Article 151 of that regulation provides that such information, clarification or confirmation does not substantially change application documents.

74 In that respect, it has been ruled that failure to produce supporting documentation required by the contract documents necessarily leads to the proposal being irregular in its entirety and the contracting authority being unable to apply the abovementioned provisions of Article 151 to remedy that failure (see, to that effect, judgment of 18 December 2024, Institut Jožef Stefan v Commission , T‑134/23, not published, EU:T:2024:907, paragraphs 59 and 87 and the case-law cited).

75 In the present case, it is not disputed that, under sections 1.4.1.1 and 1.4.1.2 of the Technical Specifications, each tenderer had to provide ‘written proof’ in its tender that it had contracts with the respective satellite operators allowing it to provide the services described in mandatory requirements M-001, M-009 and M-014 and that, under section 2.14.4.5 of the Tender Specifications, failure to provide such written proof was to result in the rejection of the tender by the contracting authority.

76 Thus, as regards the review of the interpretation of the condition relating to the provision of written proof, the Court considers that, in the light of the wording of sections 1.4.1.1 and 1.4.1.2 of the Technical Specifications, those Technical Specifications expressly require tenderers to provide ‘written proof’ in their tender that they have contracts concluded with the respective satellite operators allowing them to provide the services described in mandatory requirements M-001, M-009 and M-014. That requirement is, moreover, reinforced by section 2.14.4.5 of the Tender Specifications, which explicitly stipulates that failure to provide such proof results in the rejection of the tender. Such clear and unambiguous wording thus has an imperative character.

77 As far as the subject matter of the provisions mentioned in paragraph 76 above is concerned, they seek to ensure that, at the time when they submit their tender, tenderers actually have the resources necessary to satisfy mandatory requirements M-001, M-009 and M-014, which concern essential elements of performance. The ‘written proof’ requirement thus pursues the objective of ensuring that the technical commitments contained in tenders are genuine and credible, excluding proposals based on capacities which are hypothetical or have not yet been secured.

78 Furthermore, as regards the broad logic of the provisions mentioned in paragraph 76 above, it should be noted that they relate to requirements which are classified as mandatory and that they are subject to the explicit consequence of exclusion. They therefore form part of a mechanism for the prior elimination of non-compliant tenders, which is intended to ensure respect for the principles of equal treatment and transparency among tenderers.

79 It follows that, in view of the clear wording of the provisions mentioned in paragraph 76 above, their subject matter and their place in the broad logic of the Tender Specifications, the Court considers that each tenderer had to produce in its tender, as ‘written proof’, either a copy of the relevant parts of the contracts actually concluded or, at the very least, a certificate from the satellite operator concerned in order to enable the contracting authority to verify that the satellite capacities required for the performance of the contract at issue were actually available.

80 In that regard, the Court notes that, in its tender, in order to satisfy requirements M-001, M-009 and M-014, Telespazio France had relied both on the capacities of satellite operators with which it had concluded resale contracts and on the capacities of satellite operators with which one of its subcontractors (‘the subcontractor’) had concluded resale contracts.

81 Thus, in its tender Telespazio France provided the following material as ‘written proof’:

– a declaration on honour dated 5 September 2023 made by its parent company, Telespazio SpA, stating that, in accordance with mandatory requirements M-001, M-009 and M-014, Telespazio France had resale contracts for satellite capacities with 12 different operators;

– a resale authorisation dated 3 August 2023 issued by operator A, whose name was included on the list of 12 operators referred to above, authorising Telespazio France to resell its satellite capacities;

– a resale authorisation of an unknown date issued by operator B, whose name was included on the list of 12 operators referred to above, authorising Telespazio France to resell its satellite capacities;

– a declaration on honour dated 7 September 2023 made by the parent company of the subcontractor for Telespazio France, stating that, in accordance with mandatory requirements M-001, M-009 and M-014, the subcontractor for Telespazio France was authorised to resell satellite capacities from 20 different operators.

82 In that regard, the Court notes that, contrary to the requirement mentioned in paragraph 76 above, the tender submitted by Telespazio France did not include either copies of relevant parts of contracts concluded with satellite operators or a certificate from those operators, except for operators A and B. The tender submitted by Telespazio France did not therefore include ‘written proof’ of those contracts for operators other than operators A and B.

83 The two declarations on honour referred to in paragraph 81 above cannot, in themselves, constitute sufficient written proof for the purposes of requirements M‑001, M-009 and M-014. It follows from case-law that probative value can be attributed to a sworn statement, and a fortiori to a simple statement, only if it is supported by other evidence. It is also necessary to take into consideration the fact that the statement at issue emanates from a person or an entity which could have a direct interest in the case (see, to that effect, judgment of 28 February 2018, Vakakis kai Synergates v Commission , T‑292/15, EU:T:2018:103, paragraphs 136 and 137 and the case-law cited).

84 In the present case, the first declaration on honour was made by Telespazio SpA, the parent company of Telespazio France. Since those two companies have converging interests, namely that Telespazio France be awarded the contract at issue, that declaration cannot, in itself, constitute sufficient proof, at least for the contracts for resale of capacities with the satellite operators listed in that declaration other than operators A and B.

85 The same reasoning must be applied to the second declaration on honour produced by Telespazio France in its tender, as it was made by the parent company of the subcontractor for Telespazio France. Since those two companies have converging interests, namely that Telespazio France be awarded the contract at issue, that declaration cannot, in itself, constitute sufficient proof that that subcontractor had contracts with the satellite operators listed in the document. As the applicants explain, under Articles 2.6 and 2.14 of the Tender Specifications, where a candidate intended to have recourse to a subcontractor for certain services, the subcontractor had to satisfy the mandatory requirements set out in the Technical Specifications and, accordingly, provide ‘written proof’ for the services which the subcontractor was to perform in the tender, which is, moreover, not disputed by the EDA.

86 The conclusion in paragraph 82 above is confirmed by the content of two requests for clarification in that regard sent to Telespazio France by the EDA’s tender evaluation committee.

87 Thus, in the request for clarification of 26 October 2023, the committee stated that it considered that, in the tender submitted by Telespazio France, there was a ‘lack’ of written proof in relation to mandatory requirements M-001, M-009 and M-014 and that ‘the only written proof received [in the tender was] reselling authorisation forms from [operator A] and [operator B]’, which shows that the evaluation committee took the view that the first declaration on honour did not constitute sufficient written proof. Furthermore, in that same request for clarification, the evaluation committee had then asked Telespazio France to provide it with written proof relating to the ‘other’ operators mentioned in the service catalogue in the tender.

88 Similarly, in the request for clarification of 7 November 2023, the evaluation committee stated that Telespazio France had not provided written proof in relation to contracts concluded between its subcontractor and the satellite operators mentioned in its tender and requested it to provide it with that proof.

89 Furthermore, even assuming that the material provided by Telespazio France after its tender had been submitted, following requests for clarification, had to be taken into account in answering the question whether it had in fact provided written proof for the purposes of mandatory requirements M-001, M-009 and M-014, it is clear from the case file that Telespazio France did not, at that time, provide either a copy of the relevant parts of the contract or a certificate for the majority of the operators listed in the declarations on honour referred to in paragraph 81 above. Accordingly, even if that were the case, the tender submitted by Telespazio would have to be considered to be non-compliant.

90 Moreover, and in any event, the EDA infringed Article 151 of the Financial Regulation of 2018 by permitting Telespazio France to supplement its tender substantively, by asking it, in the two requests for clarification mentioned in paragraphs 87 and 88 above, to produce the written proof that was not, according to the EDA, included in its tender, which it was not authorised to do in accordance with the case-law cited in paragraph 74 above. It is true that that case-law was developed in a context where the tenderer had not provided in its tender any of the supporting documents required by the Technical Specifications, whereas in the present case Telespazio France had provided certain documents, namely those mentioned in paragraph 81 above. However, that case-law must also be applied to situations like that in the present case where a tenderer has not provided all the necessary supporting documents under the mandatory requirements.

91 Those conclusions are not called into question by the arguments put forward by the EDA in its written submissions.

92 In that regard, the EDA submits that it was not able to stipulate in the Technical Specifications a specific type of proof to demonstrate the links between tenderers and satellite operators, that there was nothing to prevent Telespazio France producing certificates on honour as written proof in order to satisfy mandatory requirements M-001, M-009 and M-014, that the requests for clarification mentioned in paragraphs 87 and 88 above were merely intended to ask Telespazio France to provide information supplementary to that already included in the tender, that it had taken the same approach with the applicants in accordance with the principle of equal treatment and that, if such a strict approach to written proof had been applied to the tender submitted by the applicants, that tender would not have been found to be compliant.

93 Those arguments must be rejected. The EDA is not being criticised for failing to stipulate a specific type of written proof in the Technical Specifications. As was stated in paragraphs 82 and 89 above, the Court considers that neither the material provided in the tender submitted by Telespazio France nor the material provided subsequently by it satisfied mandatory requirements M-001, M-009 and M-014 and that the tender should therefore have been rejected by the EDA for not complying with the mandatory requirements. Furthermore, as was stated in paragraph 90 above, the EDA was not entitled to ask Telespazio France, through requests for clarification, to provide written proof which had not been provided when the tender was submitted. Lastly, as regards the EDA’s observation regarding the applicants’ failure to produce written proof for several satellite operators mentioned in their tender, it should be noted, first, that the EDA found the tender submitted by the applicants to be compliant during the tendering procedure and, second, that the question of the compliance of that tender is not at issue in the present action. On that point, moreover, the EDA’s argument runs counter to the principle that a person may not dispute what he or she has previously accepted ( nemo potest venire contra factum proprium ) (see, to that effect, order of 13 February 2014, Marszałkowski v OHIM , C‑177/13 P, not published, EU:C:2014:183, paragraphs 73 and 74 and the case-law cited).

94 In the light of all the foregoing, the tender submitted by Telespazio France did not comply with mandatory requirements M-001, M-009 and M-014.

95 Consequently, the Court considers that the EDA committed a manifest error of assessment and an infringement of Article 167(1) of the Financial Regulation of 2018 by accepting the tender submitted by Telespazio France.

96 It follows from all the above considerations that the second plea in law must be upheld.

97 Nevertheless, the Court considers that the third plea in law should be examined for the sake of completeness.

(c) The third plea in law, alleging, in essence, several manifest errors of assessment in reviewing the tender submitted by Telespazio France and the tender submitted by the consortium in respect of optional requirement O - 007 and a distortion of the evidence in the case file

98 The applicants claim, in essence, that the EDA made various manifest errors of assessment in examining the tender submitted by Telespazio France and the tender submitted by the consortium in respect of an optional requirement contained in the Technical Specifications, namely optional requirement O-007. They assert that, without those errors, the consortium would have had to be awarded the contract in question.

99 They further allege a ‘distortion of the evidence in the case file’ by the EDA.

100 The EDA disputes those arguments. In particular, it asserts that it did not distort the facts in any way.

101 First of all, with regard to the latter point, the Court notes that the applicants did not specify in their written submissions what evidence in the case file had been distorted and what those ‘distortions’ were.

102 Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings 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, the application must state the subject matter of the dispute, 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 action, if necessary without any further supporting information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic legal and factual particulars on which it is based be indicated, at least in summary form, coherently and intelligibly in the text of 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).

103 The third plea in law, in so far as it alleges a distortion of the evidence in the case file, must therefore be rejected as inadmissible.

104 The remainder of the third plea in law can be subdivided into two distinct parts.

(1) The first part of the third plea in law, alleging a manifest error of assessment concerning the tender submitted by the consortium

105 By the first part of the third plea in law, the applicants submit that the EDA made a manifest error of assessment by awarding only a single point to the tender submitted by the consortium for optional requirement O-007.

106 According to the applicants, Airbus Defence and Space had decided, in 2021, to invest in a [ confidential ] programme which would thus enable Airbus Defence and Space to offer its clients a new UHF capacity. The applicants submit that the [ confidential ] programme, which represented an offering of new capacity available on a saturated market, necessarily had to receive preferential consideration compared with existing offerings.

107 In that regard, the applicants maintain that, in the letter of 23 January 2024, the argument put forward by the EDA that the capacity under the [ confidential ] programme was available only to [ confidential ] and therefore constituted a weakness in terms of the performance of the contract cannot be accepted because the duration of the contract was 48 months from its signing, that is to say, until 24 January 2028, and the capacity under the [ confidential ] programme was therefore intended to cover most of the period of performance of the contract and had no equivalent on the market.

108 Consequently, the applicants submit that the EDA should have awarded the consortium a score of 2 out of 2, not a score of 1 out 2, for optional requirement O-007.

109 The EDA disputes those arguments.

110 As a preliminary point, it should be explained what optional requirement O-007 is and how it was evaluated.

111 Optional requirement O-007 concerned UHF band mobile satellite communications services (IW or DAMA). Since it was an optional requirement, tenderers were not obliged to present that service in their tender.

112 In that regard, the Technical Specifications stated, in section 1.4.1.5.3, that ‘tenderers [were] invited to detail in their proposal their capacity to provide, and under which conditions an access to UHF satellite communications networks as well as their capacity to lease or sell, and under which conditions, UHF satellite communications terminals’. Optional requirement O-007 was scored out of two points.

113 In its evaluation of the two tenders received, the EDA awarded the following scores:

– for Telespazio France, the score of 2 out of 2; that score included the following note: ‘in addition to [ confidential ] satellite capacities, the call for tenders offers [ confidential ] capacities available from [ confidential ] satellites’;

– for the consortium, the score of 1 out of 2; that score included the following note: ‘only [ confidential ] satellite capacity (contingent on successful launches) is offered, which is considered to be a weakness.’

114 In that regard, first, the Court notes, as is acknowledged, moreover, by the applicants, that the capacity under the [ confidential ] programme was available at the earliest from [ confidential ], several months after the commencement of performance of the framework agreement which was signed on 24 January 2024, and that capacity could not therefore be offered for a substantial part of the period of performance of the framework agreement, which was not to exceed 48 months.

115 Second, it should also be observed that that new capacity was dependent on [ confidential ], which represented a significant risk, as the EDA maintains without being contradicted by the applicants on that point.

116 Consequently, the Court considers that the EDA did not make a manifest error of assessment in awarding a score of one point out of two to the tender submitted by the consortium for optional requirement O-007.

117 The first part of the third plea in law must therefore be rejected.

(2) The second part of the third plea in law, alleging manifest errors of assessment concerning the tender submitted by Telespazio France

118 By the second part of the third plea in law, the applicants submit that the EDA made two manifest errors of assessment concerning the tender submitted by Telespazio France in respect of optional requirement O-007.

119 First, the applicants assert [ confidential ]. However, according to the applicants, that contract provided for [ confidential ], which meant that, in its tender, Telespazio France was unable to rely on UHF capacities connected with the contract. In their observations of 13 June 2025, the applicants state, moreover, that Telespazio France has not successfully demonstrated that it held an authorisation enabling it to resell those [ confidential ] capacities. Thus, according to the applicants, the EDA made a manifest error of assessment in taking the view that Telespazio France could legitimately mention those capacities in its tender.

120 Second, the applicants claim that in its tender Telespazio France was also unable to offer UHF capacities by virtue of a commercial agreement concluded with [ confidential ]. In their written observations of 13 June 2025, the applicants add that, furthermore, Telespazio France did not set out in sufficient detail in its tender the conditions for access to the UHF capacities which it was able to offer by virtue of that agreement. According to the applicants, the EDA made a manifest error of assessment in taking the view that Telespazio France could legitimately offer those capacities in its tender.

121 The EDA disputes those arguments.

122 First, the EDA claims that the applicants wrongly submit that [ confidential ] which is referred to in paragraph 119 above prevented Telespazio France from offering the corresponding UHF capacities in its tender.

123 Second, the EDA claims that Telespazio France was able to demonstrate in its tender that it had UHF capacities which were immediately available by virtue of the [ confidential ] commercial agreement referred to in paragraph 120 above.

124 In the light of the foregoing, the EDA submits, in essence, that the applicants wrongly claim manifest errors of assessment concerning the tender submitted by Telespazio France, that the second part of the third plea in law must therefore be rejected as unfounded and that, consequently, the third plea in law must be rejected in its entirety.

125 As a preliminary point, the Court holds that the arguments set out by the applicants in their written observations of 13 June 2025 must be declared admissible for the same reasons as are set out in paragraph 70 above.

126 As to the substance, the Court notes that, according to the section of the Technical Specifications relating to optional requirement O-007 (see paragraph 112 above), tenderers were required to detail in their tender ‘their capacity to provide, and under which conditions an access to UHF satellite communications networks as well as their capacity to lease or sell, and under which conditions, UHF satellite communications terminals’.

127 As the EDA mentions in its written observations, Telespazio France stated in its tender that it was able to offer UHF capacities by virtue of the [ confidential ] contract referred to in paragraph 119 above and by virtue of the commercial agreement with [ confidential ] referred to in paragraph 120 above.

128 In the first place, with regard to the [ confidential ] contract, the Court considers that the EDA made a manifest error of assessment in taking the view that in its tender Telespazio France was able to offer UHF capacities by virtue of that contract.

129 It is clear from the tender submitted by Telespazio France that it did not demonstrate precisely, contrary to what was required by the Technical Specifications (see paragraph 126 above), the way in which it could resell those capacities under the contract in question. As the applicants correctly submit, the [ confidential ] certificates included in the tender submitted by Telespazio France are insufficient to demonstrate that it was thus able to provide UHF capacities to the EDA by virtue of that contract. Although those letters appear to indicate that Telespazio France was able to resell UHF capacities in [ confidential ], they do not, as such, prove that Telespazio France could offer those capacities under the contract in question, [ confidential ]. Nor do those letters prove that the UHF capacities offered by Telespazio France could be used in [ confidential ].

130 That is also corroborated by [ confidential ].

131 The existence of a manifest error of assessment is not invalidated by the other arguments put forward by the EDA.

132 First, the EDA submits that, since it is a third party in respect of the [ confidential ] contract, it was not bound by [ confidential ].

133 That argument is irrelevant to the question whether Telespazio France sufficiently detailed and proved in its tender that it was able to offer the UHF capacities in question and whether, on that basis, that had to be taken into account by the EDA in its scoring. As was stated above, the tender submitted by Telespazio France contains neither detailed explanations nor evidence to show that it could offer those capacities to the EDA in connection with the contract at issue, which should have led the EDA to disregard that element in the evaluation of the tender submitted by Telespazio France in respect of optional requirement O-007.

134 Second, the EDA maintains that it is uncertain about the lawfulness of [ confidential ] under competition law and public procurement law.

135 That argument is ineffective, however, in so far as, if [ confidential ] at issue were contrary to competition law, as the EDA implies, that would result in the nullity of the contract and, consequently, a lack of satellite capacity for Telespazio France. In any event, the argument is not substantiated, less still proven.

136 In the second place, with regard to the commercial agreement concluded with [ confidential ], the Court considers that the EDA made a manifest error of assessment in taking the view that Telespazio France had provided sufficient clarification in its tender regarding the UHF capacities which it could offer the EDA by virtue of that agreement.

137 As is observed by the applicants, the Court notes that the tender submitted by Telespazio France was imprecise in that regard when, as has already been mentioned in paragraph 126 above, tenderers were required to detail precisely the conditions for access to UHF capacities, in a context in which it is not contested that the offering of UHF capacities was particularly rare.

138 The Court observes that the precise conditions for such access were not sufficiently detailed in the tender submitted by Telespazio France, for example, [ confidential ]. Furthermore, the tender submitted by Telespazio France referred to a [ confidential ]. Similarly, it refers to access to [ confidential ], without the conditions for access to those satellites being detailed there either.

139 The existence of those imprecisions in the tender submitted by Telespazio France is corroborated by the fact that the EDA had to send that tenderer a request for clarification on 12 January 2024, in which it asked Telespazio France about key points of the commercial agreement with [ confidential ], such as [ confidential ].

140 Those elements are not called into question by the other arguments put forward by the EDA in its written submissions.

141 As regards the EDA’s argument that the Technical Specifications did not require written proof of the commercial agreement with [ confidential ] to be provided, the Court considers that, while it is true that the Technical Specifications did not require tenderers to produce such a document, tenderers nevertheless had to describe very precisely in their tender the conditions under which the UHF capacities offered would be resold, which was not the case for the tender submitted by Telespazio France.

142 The EDA’s argument that Telespazio did not provide new information in its response to the request for clarification compared with the information already provided in its tender must be rejected. That argument cannot call into question the fact that Telespazio France did not sufficiently detail in its tender the conditions under which the UHF capacities offered would be resold.

143 It follows from the foregoing that the second part of the third plea in law must be upheld and, therefore, to that extent, the third plea in law.

(d) Conclusion concerning the merits of the application for annulment of the contested decisions

144 It follows from all the foregoing that, since the first, second and third pleas in law have been upheld, at least in part, the contested decisions must be annulled, without it being necessary to examine the merits of the fourth, fifth, sixth and seventh pleas in law.

B. The claim for compensation

145 The applicants submit that the contested decisions are unlawful and that the EDA has thus incurred liability vis-à-vis them. They claim that the Court should order the EDA to compensate them for the loss of opportunity to be awarded the contract and for the costs and charges incurred in submitting their tender.

146 The EDA contends that the claim for compensation should be dismissed.

1. The conditions under which the European Union incurs liability

147 Under the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.

148 In accordance with settled case-law, for the EU to incur non-contractual liability under the abovementioned provision for unlawful conduct on the part of its institutions, three conditions must be fulfilled, namely the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of (judgments of 4 July 2000, Bergaderm and Goupil v Commission , C‑352/98 P, EU:C:2000:361, paragraphs 39 to 42; of 9 September 2008, FIAMM and Others v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 106 and 164 to 166; and of 16 October 2014, Evropaïki Dynamiki v Commission , T‑297/12, not published, EU:T:2014:888, paragraph 28).

149 With regard to the condition relating to the unlawful conduct of an institution, it is required that there be established a sufficiently serious breach of a rule of law intended to confer rights on individuals (judgments of 4 July 2000, Bergaderm and Goupil v Commission , C‑352/98 P, EU:C:2000:361, paragraphs 42 and 43, and of 9 September 2008, FIAMM and Others v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 173).

150 As regards the requirement relating to the fact of damage, it should be noted that the EU can incur liability only if the applicant has actually suffered a ‘real and certain’ loss. For that purpose, it is incumbent upon the applicant to produce to the Courts of the EU conclusive evidence in order to establish both the fact and the extent of such loss (see, to that effect, judgments of 16 July 2009, SELEX Sistemi Integrati v Commission , C‑481/07 P, not published, EU:C:2009:461, paragraph 36 and the case-law cited, and of 8 November 2011, Idromacchine and Others v Commission , T‑88/09, EU:T:2011:641, paragraph 25 and the case-law cited).

151 As regards the condition that there be a causal link, it is fulfilled once there is a direct causal link between an EU institution’s unlawful conduct and the alleged damage, which it is for the applicant to prove. The Union can only be held responsible for damage arising sufficiently directly from the unlawful conduct of the institution concerned (see, to that effect, order of 5 July 2007, Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission , C‑255/06 P, not published, EU:C:2007:414, paragraph 61).

152 Since one of the three conditions governing the European Union’s non-contractual liability is not satisfied, the claim for compensation must be dismissed, without it being necessary to examine whether the other two conditions are satisfied (judgments of 15 September 1994, KYDEP v Council and Commission , C‑146/91, EU:C:1994:329, paragraph 81, and of 16 October 2014, Evropaïki Dynamiki v Commission , T‑297/12, not published, EU:T:2014:888, paragraph 33).

(a) The unlawful acts

153 In the present case, the claim for compensation is based on the same unlawful acts as those relied on in support of the application for annulment of the contested decisions. In addition, the applicants stated in their written observations of 13 June 2025, in essence, that the unlawful acts committed by the EDA and raised, inter alia, in those observations resulted in the claim for compensation being well founded.

154 However, the applicants have not claimed, either in their action or in the written observations of 13 June 2025, that the unlawful acts committed by the EDA constituted sufficiently serious breaches of rules of law intended to confer rights on individuals.

155 Nor has the EDA indicated in its written submissions whether or not the unlawful acts claimed constituted sufficiently serious breaches of rules of law intended to confer rights on individuals.

156 At the hearing, the parties were questioned, first, on whether it fell to the EU judicature to determine whether an unlawful act constituted a sufficiently serious breach of a rule of law intended to confer rights on individuals, without it being necessary for the applicant to raise such characterisation in its action and, second, on whether such breaches had been committed in this case.

157 The applicants replied, in essence, that the existence of such breaches could be inferred indirectly from the action and from the written observations of 13 June 2025 and that the irregularities observed were of such gravity as to call for compensation.

158 The EDA stated that the applicants had not demonstrated in their written submissions that the unlawful acts claimed constituted such breaches, that it had not therefore been able, in its written submissions, to challenge the existence of such breaches and that the Court cannot make such characterisation of its own motion. It added that, in any event, the unlawful acts claimed cannot be characterised as sufficiently serious breaches of rules of law intended to confer rights on individuals.

159 As regards the first requirement, namely the breach of a rule of law intended to confer rights on individuals, the case-law states that such a rule is intended to confer rights on individuals where it creates an advantage for them which could be defined as a vested right, is designed for the protection of their interests or entails the grant of rights to individuals, the content of those rights being sufficiently identifiable (judgment of 23 May 2019, Steinhoff and Others v ECB , T‑107/17, EU:T:2019:353, paragraph 140; see also judgment of 9 February 2022, QI and Others v Commission and ECB , T‑868/16, EU:T:2022:58, paragraph 90 and the case-law cited).

160 As regards the second requirement, namely that the breach is sufficiently serious, the test considered to be decisive for finding that a breach is sufficiently serious is whether the institution manifestly and seriously disregarded the limits on its discretion (judgments of 4 July 2000, Bergaderm and Goupil v Commission , C‑352/98 P, EU:C:2000:361, paragraph 43, and of 7 October 2015, Accorinti and Others v ECB , T‑79/13, EU:T:2015:756, paragraph 67; see also, to that effect, judgment of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB , T‑749/15, not published, EU:T:2017:21, paragraph 69). Where that institution has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (judgment of 19 April 2007, Holcim (Deutschland) v Commission , C‑282/05 P, EU:C:2007:226, paragraph 47). Thus, a determining factor in deciding whether there has been a sufficiently serious breach is the scope of the discretion available to the institution concerned (see, to that effect, judgment of 12 July 2005, Commission v CEVA and Pfizer , C‑198/03 P, EU:C:2005:445, paragraphs 65 and 66).

161 However, there is no automatic link between the fact that the institution concerned has no discretion and the classification of the infringement as a sufficiently serious breach of EU law. Although the extent of the discretion of the institution concerned is a determining factor, it is not an exclusive criterion (judgments of 3 March 2010, Artegodan v Commission , T‑429/05, EU:T:2010:60, paragraphs 59 and 60, and of 16 December 2020, Bawtry Carbon International v Commission , T‑637/18, not published, EU:T:2020:626, paragraphs 84 and 85).

162 In that regard, it is for the EU judicature to take into account the complexity of the situation to be regulated, the difficulties in the application or interpretation of the legislation, the clarity and precision of the rule infringed, and whether the error of law made was inexcusable or intentional (judgments of 10 September 2019, HTTS v Council , C‑123/18 P, EU:C:2019:694, paragraph 42; of 3 March 2010, Artegodan v Commission , T‑429/05, EU:T:2010:60, paragraph 62; and of 8 December 2021, Dyson and Others v Commission , T‑127/19, not published, EU:T:2021:870, paragraphs 22 and 38).

163 It follows that mere errors of assessment cannot of themselves be sufficient to give rise to a manifest and grave infringement (see, to that effect, judgment of 9 September 2008, MyTravel v Commission , T‑212/03, EU:T:2008:315, paragraph 85). Non-contractual liability of the European Union can arise only if an irregularity is found that would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence (see, to that effect, judgment of 10 September 2019, HTTS v Council , C‑123/18 P, EU:C:2019:694, paragraph 43).

164 A preliminary point to note with regard to the question whether the Court is able, of its own motion, to characterise an unlawful act as a sufficiently serious breach of rules of law intended to confer rights on individuals is that the legal characterisation of the facts falls to the EU judicature. Where the relevant matters of fact and of law are apparent from the case file and have been debated between the parties in adversarial proceedings, as in the present case, the Court may itself make the characterisation of an unlawful act found as constituting a sufficiently serious breach of a rule of law conferring rights on individuals, even if the applicant has not explicitly addressed that issue in its action. That conclusion follows, moreover, from settled case-law, according to which it is for the party seeking to establish the European Union’s non-contractual liability to demonstrate the existence of an unlawful act and to adduce proof of, first, a causal link between that unlawful act and the damage caused and, second, the fact of that damage (see, to that effect, judgments of 30 May 2017, Safa Nicu Sepahan v Council , C‑45/15 P, EU:C:2017:402, paragraph 62, and of 7 July 2021, HTTS v Council , T‑692/15 RENV, EU:T:2021:410, paragraph 61). By contrast, the legal characterisation of the unlawful act as being sufficiently serious is not contingent on the submission of evidence by the applicant, which is confirmed by the case-law cited in paragraph 162 above.

165 In the first place, as regards the question whether the manifest error of assessment and the infringement of Article 151 and Article 167(1) of the Financial Regulation of 2018 which have been found in the analysis of the second plea in law constitute sufficiently serious breaches of rules of law intended to confer rights on individuals, the following findings should be made.

166 On the one hand, the rules infringed in this case can be considered to be intended to confer rights on individuals in so far they are designed for the protection of their interests (see the case-law cited in paragraph 159 above).

167 Both Article 151 and Article 167(1) of the Financial Regulation of 2018 regulate precisely the exercise of the competences of the contracting authority in public procurement procedures financed by the EU budget. In doing so, those provisions seek not only to ensure the sound management of EU funds, but also to protect economic operators participating in procurement procedures by giving them an assurance that their tender will be examined in accordance with objective and predictable rules. Those provisions are therefore intended to confer procedural rights on tenderers on which they are able to rely before the EU Courts, such that failure to observe those rights is likely to constitute a breach of a rule of law intended to confer rights on individuals.

168 The manifest error of assessment which has been identified in the present case concerning the failure by a contracting authority to reject a tender which did not comply with the Technical Specifications is based on the same logic. Such infringement of the rules governing verification of compliance of tenders is such as to adversely affect the rights of other tenderers, which are entitled to see that competing tenders are evaluated only if they satisfy the mandatory requirements laid down in the Technical Specifications.

169 On the other hand, the unlawful acts found in connection with the second plea in law must be characterised as sufficiently serious breaches.

170 First, the Court considers that the EDA could not disregard the clear rule that Telespazio France was required to submit written proof in its tender that it and its subcontractor had contracts with the satellite operators concerned to offer the services described in mandatory requirements M-001, M-009 and M-014 and that failure to satisfy that condition resulted in the rejection of the tender on account of its non-compliance. Indeed, that condition had been introduced into the Technical Specifications by the EDA itself.

171 Second, it is clear from the wording of the two requests for clarification sent to Telespazio France by the EDA’s tender evaluation committee that the committee considered that such written proof had not been provided by Telespazio France for the satellite operators listed in the two declarations on honour referred to in paragraph 81 above, except for operators A and B (see paragraphs 86 to 88 above). As was stated in paragraphs 82 and 90 above, the Court concurs with the committee’s analysis in that regard and concludes that the EDA had no alternative than to reject the tender submitted by Telespazio France as non-compliant and, in any event, could not authorise Telespazio France to supplement it by giving it the opportunity to provide the missing written proof after its tender had been submitted. It must therefore be held that, in those circumstances, the EDA did not have any discretion. Furthermore, it could not disregard the fact that the tender submitted by Telespazio France was non-compliant.

172 Third, as was mentioned in paragraph 89 above, even assuming that the supporting documents provided after the tender had been submitted had to be taken into account, it must be stated that, after its tender had been submitted, Telespazio France did not provide either a copy of the relevant parts of the contract or a certificate for the majority of the operators listed in the declarations on honour referred to in paragraph 81 above and that, even in that case, the tender submitted by Telespazio France had to be considered to be non-compliant. In that regard, the EDA also could not disregard the fact that the required written proof had not been provided by Telespazio France.

173 In the light of the foregoing, the Court considers that the EDA did not have any discretion in this case, that the situation to be regulated was not complex, that the rules which were infringed did not entail any difficulty in application or interpretation and that the infringements committed in the present case may be considered inexcusable. Furthermore, it can be observed that the irregularities found would not have been committed by an administrative authority exercising ordinary care and diligence (see the case-law cited in paragraphs 162 and 163 above).

174 It follows that that error and the infringement of Article 151 and of Article 167(1) of the Financial Regulation of 2018, which were found in the analysis of the second plea in law, constitute sufficiently serious breaches of rules of law intended to confer rights on individuals.

175 In the second place, with regard to the question whether the manifest errors of assessment concerning the tender submitted by Telespazio France which were found in the analysis of the third plea in law constitute sufficiently serious breaches of rules of law intended to confer rights on individuals, the following findings should be made.

176 As was noted in paragraphs 126 to 143 above, the Court considers that Telespazio France had not sufficiently explained and demonstrated in its tender that it could offer UHF capacities, either by virtue of the [ confidential ] contract referred to in paragraph 119 above or by virtue of the commercial agreement concluded with [ confidential ] referred to in paragraph 120 above, even though the Technical Specifications required tenderers to give a precise description of their capacity to provide access to UHF satellite communications networks and of the conditions under which access could be provided. It was thus considered that, by awarding the maximum score for optional requirement O-007, namely 2 points out of 2, the EDA made two manifest errors of assessment.

177 The Court notes in that regard [ confidential ] preventing Telespazio France from mentioning that contract in its tender (see paragraph 130 above), which should have given rise to increased vigilance from the EDA as regards the proof provided in the tender submitted by Telespazio France. In addition, the content of the request for clarification clearly shows that the EDA was not satisfied with the degree of detail provided by Telespazio France in its tender regarding the commercial agreement with [ confidential ] (see paragraph 139 below). Accordingly, the EDA could not disregard the fact that the tender submitted by Telespazio France had a number of weaknesses which prevented it from obtaining the maximum score for optional requirement O-007.

178 First, along similar lines to what was stated in paragraph 168 above, the failure by the EDA to have regard to the need for tenderers to describe in detail the conditions for access to the UHF capacities offered is such as to adversely affect the rights of other tenderers, which are entitled to see that competing tenders are evaluated correctly in accordance with the rules contained in the Technical Specifications.

179 Second, the Court thus considers that the EDA gravely and manifestly disregarded the limits of its discretion. The Court considers that the EDA had a low margin of discretion in this case, that the situation to be regulated was not complex, that the rules which were infringed did not entail any difficulty in application or interpretation and that the infringements committed in the present case may be considered inexcusable. Furthermore, it can be observed that the irregularities found would not have been committed by an administrative authority exercising ordinary care and diligence (see paragraph 173 above).

180 Consequently, the Court takes the view that the irregularities found in the analysis of the third plea in law constitute sufficiently serious breaches of rules of law intended to confer rights on individuals.

(b) The damage claimed and the causal link between the sufficiently serious breaches found and that damage

181 As the Court has established the existence of several sufficiently serious breaches of rules of law intended to confer rights on individuals, it must be determined whether the damage claimed by the applicants is real and certain and whether, as the case may be, there is a direct causal link between the breaches found and that damage.

182 The applicants maintain that they have suffered two distinct heads of damage consisting in, first, the loss of opportunity to be awarded the contract at issue and, second, the charges and costs relating to participation in the tendering procedure.

(1) The first head of damage consisting in the loss of opportunity to be awarded the contract at issue

183 The applicants submit that they should be compensated individually for the loss of opportunity to be awarded the contract at issue. They claim that, because the tender submitted by Telespazio France had to be rejected on account of its non-compliance or, at the very least, ranked in second position, the contract at issue had to be awarded to the consortium. They further submit that it is unlikely that, if that had been the case, the EDA would have decided not to award the contract at issue.

184 In the reply, the applicants add that, contrary the assertion made by the EDA, in order to be awarded compensation for the loss of opportunity, it is not necessary, according to case-law, to demonstrate that the contract would have been obtained ‘without any doubt’, but that the unlawfully rejected candidate had a ‘real and not hypothetical’ opportunity to be awarded the contract.

185 The EDA disputes those arguments and maintains that the applicants do not demonstrate that they would have been awarded the contract at issue ‘without any doubt’ in the absence of the purported unlawful acts alleged by them.

186 In that regard, the EDA argues that the odds of the applicants being awarded the contract at issue were almost zero in so far as, under the first paragraph of Article 171 of the Financial Regulation of 2018, it could, before the contract was signed, cancel the procurement procedure, without the consortium being entitled to claim any compensation.

187 Furthermore, the EDA claims that, under the framework agreement, it did not have any obligation to purchase the services offered by the tenderer which had been awarded the contract at issue.

188 In those circumstances, the EDA maintains that the applicants have failed to demonstrate the existence of a causal link between the alleged unlawful conduct and the alleged damage which they suffered.

189 As a preliminary point, the Court recalls that, according to case-law, in order to determine whether the loss of opportunity is real, it is necessary to examine whether it has been established to the requisite legal standard that the applicant was deprived of a genuine opportunity to have the contract at issue awarded. The existence of a genuine opportunity does not depend on the degree of probability that that opportunity would have materialised, as the latter factor is taken into account subsequently, if that existence is recognised, in order to determine the extent of the material damage suffered and of its compensation (see, to that effect, judgment of 14 December 2022, SU v EIOPA , T‑296/21, EU:T:2022:808, paragraphs 86 and 87). That being the case, if it is proven that the opportunity to obtain the contract at issue did not exist, there can be no damage.

190 As was stated in paragraphs 174 and 180 above, the Court considers that, in the course of the tendering procedure, the EDA committed several sufficiently serious breaches of rules of law conferring rights on individuals. Those breaches fundamentally vitiated that procedure and affected the opportunity of the applicants, whose tender was ranked in second position, to be awarded the contract at issue.

191 In those circumstances, in the present case, the damage claimed for the loss of opportunity must be regarded as real and certain, since it is proven that, as an unsuccessful tenderer, the applicants definitively lost an opportunity to be awarded the contract and that opportunity was ‘genuine’.

192 Furthermore, the Court finds that, in its arguments summarised in paragraph 186 above, the EDA wrongly equates damages resulting from a loss of profit and those resulting from the loss of an opportunity. Those two types of damage are different. The loss of profit concerns compensation for the loss of the contract itself, whereas the loss of opportunity concerns compensation for the loss of the opportunity to conclude that contract (see judgment of 28 February 2018, Vakakis kai Synergates v Commission , T‑292/15, EU:T:2018:103, paragraph 188 and the case-law cited). In the present case, the applicants claim the existence of a loss of opportunity to obtain the contract at issue, which may be regarded as genuine. The EDA’s arguments must therefore be rejected.

193 Moreover, the fact that the contracting authority is never obliged to award a public contract does not preclude the finding of a loss of opportunity in the present case. Although that fact could affect the tenderer’s certainty of winning the contract, and therefore have an impact on the extent of the corresponding loss, it cannot preclude all likelihood of winning that contract and therefore call into question the existence of a loss of opportunity. In any event, although it is true that the contracting authority may always, until the signing of the contract, either abandon the procurement, or cancel the procedure for the award of a public contract, without the candidates or tenderers being entitled to claim compensation, the fact remains that those situations of abandonment of the procurement or cancellation of the procedure did not actually materialise and that, as a result of the sufficiently serious breaches found, the applicants lost an opportunity of winning that contract (see, to that effect, judgment of 28 February 2018, Vakakis kai Synergates v Commission , T‑292/15, EU:T:2018:103, paragraph 189 and the case-law cited).

194 For those same reasons, it is immaterial that the EDA did not have any purchasing obligation under the framework agreement in this case. That characteristic of the framework agreement has no bearing on the fact that the applicants lost an opportunity to be awarded the contract, the award of the contract taking place before the performance of the framework agreement. On the other hand, that characteristic of the framework agreement will have to be taken into account in determining the extent of the damage.

195 Lastly, the Court notes that the damage results directly and immediately from the sufficiently serious breaches which have been found. The condition relating to the existence of such a causal link must be assessed in the light of the damage claimed. It is certain that, by failing, inter alia, to reject the tender submitted by Telespazio France as non-compliant, the EDA vitiated the tendering procedure and, consequently, directly affected the applicants’ opportunity to be awarded the contract.

196 Since it follows from the foregoing that the EDA committed the sufficiently serious breaches found and that the applicants have established that they suffered damage in relation to the loss of an opportunity to be awarded the contract, and that damage is real and certain and results directly from those breaches, it must be concluded that the conditions for compensating the applicants for the loss of opportunity are met.

(2) The second head of damage consisting in the charges and costs relating to participation in the tendering procedure

197 The applicants claim that, on account of the unlawfulness of the tendering procedure, they must be compensated for the charges and costs incurred for their participation in the call for tenders.

198 In that regard, they submit that the clause relating to non-reimbursement of application expenses in section 2.10 of the Tender Specifications cannot be applied, given that the breaches vitiating the procedure prevented the consortium from obtaining the contract.

199 The applicants assert that, for Airbus Defence and Space, the preparation of the tender submitted by the consortium entailed the following charges and costs: EUR 5 635 for communication costs, EUR 33 for catering costs, EUR 409 575 for personnel costs, EUR 1 037 for meals costs, EUR 1 788 for translation costs and EUR 165 for transport costs, making a total of EUR 418 234. The applicants also provided an Excel table listing those charges and costs.

200 Similarly, the applicants claim that, for Marlink Events, the preparation of the tender submitted by the consortium entailed the following charges and costs: EUR 33 750 for personnel costs, EUR 1 100 for transport costs, making a total of EUR 34 850. The applicants also provided a statement made by the chief executive officer of Marlink Events mentioning those costs and charges.

201 The EDA disputes those arguments.

202 It should be noted that it is for the applicant to provide the Courts of the European Union with the evidence to establish the fact and the extent of its loss (judgment of 21 May 1976, Roquette frères v Commission , 26/74, EU:C:1976:69, paragraphs 22 to 24, and order of 7 July 2006, Établissements Toulorge v Parliament and Council , T‑167/02, not published, EU:T:2006:193, paragraph 29).

203 The Court notes in that regard that the applicants simply, on the one hand, described the communication, catering, meal, translation, transport and personnel costs which were incurred and, on the other hand, provided, for Airbus Defence and Space, an Excel table of the expenses incurred and, for Marlink Events, a statement made by its chief executive officer mentioning the costs incurred, without, however, providing supporting accounting and financial documents for the costs and charges incurred, such as invoices.

204 In the light of, in particular, the case-law cited in paragraph 83 above, it must therefore be held that the applicants have not proven the amount of the costs and charges claimed and that, consequently, the claim for compensation, in so far as it seeks reimbursement of the costs and charges incurred, must be rejected.

2. The amount of compensation payable to each applicant in relation to the loss of opportunity

205 The applicants submit that, in order to calculate the compensation payable to each of them in relation to the loss of opportunity, it is necessary to take into account the total amount of the contract in question, assessed to be EUR 250 million, and to multiply it by an allocation key between Airbus Defence and Space and Marlink Events, assessed on the basis of the invoices issued for the performance of the preceding contract to be 89.4% for Airbus Defence and Space and 10.6% for Marlink Events. The amounts invoiced by each of the two applicants should then be multiplied by the net profit margins realised by each of them in the performance of the preceding contract, namely 10%, and the amounts for each of the two applicants should be multiplied by the probability of being awarded the contract, assessed to be 95%. On that basis, the applicants submit that the amount of compensation can be assessed to be EUR 21 232 500 for Airbus Defence and Space and EUR 2 517 500 for Marlink Events.

206 In the application, the applicants provide a list of invoices issued for the preceding contract in order to prove the allocation key between Airbus Defence and Space and Marlink Events, as well as statements made by the chief financial officer of Airbus Defence and Space and by the chief executive officer of Marlink Events in order to substantiate that allocation key and the net profit margins realised in the course of the preceding contract.

207 In the reply, the applicants also provide invoices issued between October 2021 and March 2024 in order to confirm the allocation of tasks between Airbus Defence and Space and Marlink Events under the preceding contract and an extract of the 2023 financial report for the Airbus Group indicating that the gross profit margin for the group was 15.3%, which is higher than the figure stated in paragraph 205 above. In addition, the applicants provide an addendum to the framework agreement for the preceding contract which, in their view, shows that the upper limit for the preceding contract had been reached and a communication from the EDA concerning a forecast of increased order growth rates, which, they claim, justifies the upper limit of EUR 250 million for the new framework agreement.

208 The EDA disputes those arguments.

209 It argues that the documents provided by the applicants do not make it possible to verify the amounts of the various parameters taken into account by them in their calculations of compensation.

210 Accordingly, as regards the amount of the invoices issued by each of the applicants under the preceding contract, the EDA submits that the applicants did not provide those invoices in the context of the application and that, in any event, those invoices are irrelevant to the contract at issue.

211 Furthermore, according to the EDA, the statements mentioned in paragraph 206 above do not demonstrate either that a net profit margin of 10% should be applied to the maximum value of the contract at issue or that a probability of being awarded the contract at issue of 95% should be applied. On the latter point, the EDA maintains that that probability should be close to 0%.

212 It should be noted at the outset that compensation for the loss of an opportunity must be determined on the basis of all the particular facts of the case. In that regard, it should be noted that the Court enjoys a margin of discretion, in the exercise of its unlimited jurisdiction, in relation to the method to be chosen to carry out such a determination (see judgment of 12 February 2019, Vakakis kai Synergates v Commission , T‑292/15, not published, EU:T:2019:84, paragraph 41 and the case-law cited).

213 In the present case, the Court considers that, in order to determine the amount of compensation in relation to the loss of opportunity for each of the two applicants, it is first necessary to calculate the net profit margin which each applicant could have realised if the consortium had been awarded the contract. To that end, an estimate of the value of the purchases which the EDA would have made from the consortium, if it had been awarded the contract at issue, should be multiplied by an estimate of the proportion of those purchases for each applicant and by an estimate of the net profit margin for each applicant. Lastly, that amount should be multiplied by an estimate of the probability of the applicants being awarded the contract at issue (see, to that effect and by analogy, judgment of 28 February 2018, Vakakis kai Synergates v Commission , T‑292/15, EU:T:2018:103, paragraph 220).

214 First, with regard to the evaluation of the value of the purchases made by the EDA under the framework agreement, the Court considers that it is not relevant to take into account the amount mentioned by the applicants, namely EUR 250 million, as the EDA does not have any purchasing obligation under the framework agreement and it is not therefore certain that the upper limit for the purchases which could be made under the framework agreement would have been reached if the applicants had been awarded the contract at issue. In particular, that conclusion is not contradicted by the fact underlined by the applicants that this was the case for the preceding contract, since the contract at issue is independent of the preceding contract. Lastly, the communication from the EDA, provided by the applicants, concerning the forecast of increased order growth rates does not demonstrate that the upper limit under the framework agreement would have been reached.

215 Following the measure of inquiry of 6 November 2025, the EDA provided the Court with the total amount invoiced by Telespazio France from the beginning of the performance of the contract at issue up to and including 7 November 2025. That amount, which is confidential, was then disclosed to the applicants’ representatives, who made known their views in that regard in accordance with Article 103(3) of the Rules of Procedure. The Court considers that that amount may be taken into account in estimating the amount which the applicants would have invoiced the EDA for the entire period of performance of the framework agreement if they had been awarded the contract at issue.

216 Furthermore, it should be borne in mind that, as the applicants have submitted without being contradicted by the EDA, the value of the purchases made by the EDA under the preceding contract had reached the upper limit of EUR 77.5 million.

217 Thus, on the basis of all the particular facts of the case, a fair assessment of the amount which the applicants would have invoiced the EDA for the entire period of performance of the framework agreement if they had been awarded the contract at issue is to fix that amount at EUR 65 million.

218 Second, with regard to the allocation of amounts invoiced between Airbus Defence and Space and Marlink Events, it should be noted that the applicants provided, annexed to the application, a list of amounts invoiced to the EDA under the preceding contract and statements made by the chief financial officer of Airbus Defence and Space and by the chief executive officer of Marlink Events in order to substantiate the allocation key. In addition, the applicants provided, annexed to the reply, the invoices issued between October 2021 and March 2024 in connection with the performance of the preceding contract.

219 The EDA stated, in its response to the measure of organisation of procedure of 27 October 2025, that it was not able to determine the accuracy of the evaluation carried out by the applicants and that it had not therefore contradicted that evaluation, even though it was the recipient of those invoices.

220 The Court considers in that regard that, given the difficulty in assessing the exact allocation of invoicing by the applicants in the event that they had been awarded the contract, and on the basis of all the particular facts of the case, a fair assessment of that allocation is to fix it at 89.4% for Airbus Defence and Space and 10.6% for Marlink Events.

221 Third, with regard to the net profit margin for each of the two applicants, they provided, annexed to the application, statements made by the chief financial officer of Airbus Defence and Space and the chief executive officer of Marlink Events, respectively, and, annexed to the reply, an extract of the 2023 financial report for the Airbus Group, indicating that the gross profit margin for the group was 15.3%.

222 The Court considers, however, that those documents are not capable of demonstrating that the net profit margin was 10% for each of the two applicants in respect of the preceding contract as, in both of the statements, it is mentioned that ‘the profitability target for this project was set at 10%’. In so far as reference is made to a ‘profitability target’, it cannot be determined on that basis that a net profit margin of 10% was actually achieved. Furthermore, although both statements are accompanied by three auditor’s reports for 2020, 2021 and 2022, the applicants do not explain how those reports corroborate a net profit margin of 10% for the preceding contract. Moreover, it is not certain that the net profit margins observed for the preceding contract would have been the same as those observed for the present framework agreement in the event that the applicants had been awarded the contract at issue. Lastly, the profit margin indicated in the 2023 financial report for the Airbus Group is not a net profit margin, but a gross profit margin, and it is not proven that a profit margin which can be observed at the level of the Airbus Group as a whole would also be applicable to the contract in question.

223 In the light of the foregoing, given the difficulty in evaluating the amounts for that indicator for each of the two applicants and on the basis of all the particular facts of the case, a fair assessment of those amounts is to fix the net profit margin for each of the two applicants at 7%.

224 Fourth, with regard to the probability of being awarded the contract, it was evaluated at 95% by the applicants (see paragraph 205 above). The Court concurs with that evaluation. If the tender submitted by Telespazio France had been rejected as non-compliant, the consortium would probably have been awarded the contract, given that only two tenderers had participated in the call for tenders and the tender submitted by the consortium had been found to comply with the Technical Specifications.

225 It follows from all the foregoing that the amount of compensation payable to Airbus Defence and Space in relation to the loss of opportunity corresponds to the product of the estimate of the purchases made by the EDA under the framework agreement, namely EUR 65 million, the estimate of the proportion of those purchases which would have been achieved by Airbus Defence and Space, namely 89.4%, the estimate of the net profit margin which would have been realised by Airbus Defence and Space, namely 7%, and the probability of being awarded the contract, namely 95%. The amount of compensation payable to Airbus Defence and Space in relation to the loss of opportunity therefore amounts to EUR 3 864 315.

226 Similarly, the amount of compensation payable to Marlink Events in relation to the loss of opportunity corresponds to the product of the estimate of the purchases made by the EDA under the framework agreement, namely EUR 65 million, the estimate of the proportion of those purchases which would have been achieved by Marlink Events, namely 10.6%, the estimate of the net profit margin which would have been realised by Marlink Events, namely 7%, and the probability of being awarded the contract, namely 95%. The amount of compensation payable to Marlink Events in relation to the loss of opportunity therefore amounts to EUR 458 185.

3. Default and capitalised interest

227 The applicants claim that the compensation to be paid to each of them by the EDA will have to be increased by default and capitalised interest.

228 In the reply, the applicants add that it is sufficient that it is mentioned in the claim for compensation that the compensation should be increased by default and capitalised interest in order to be eligible for such interest and that the rate applied is the rate set by the European Central Bank (ECB) for refinancing operations, increased by 3.5 points.

229 The EDA disputes those arguments.

230 According to the EDA, the applicants do not demonstrate in the application that the damages claimed by them should be increased by default interest. In addition, the EDA observes that the applicants do not specify either its rate or the specific method by which it should be applied.

231 Furthermore, the EDA submits that the applicants have also failed to demonstrate why or on what legal basis that interest, assuming it to be payable, should be capitalised.

232 Consequently, the EDA considers that the applicants’ claim for the award of capitalised default interest should be rejected in its entirety.

233 In that regard, it is clear from the case-law of the Court of Justice that the obligation to pay default interest is designed to compensate at a standard rate for the loss of enjoyment of the monies owed and to encourage the debtor to pay monies owed as soon as possible. Such an obligation can arise only where the amount of the principal sum owed is certain or can at least be ascertained on the basis of established objective factors (see judgment of 20 January 2021, Commission v Printeos , C‑301/19 P, EU:C:2021:39, paragraph 55 and the case-law cited).

234 The obligation to pay default interest arises on the date of the judgment establishing the obligation to make good the damage. The interest rate to be applied is calculated on the basis of the rate set by the ECB for main refinancing operations, as applicable during the period in question, increased by two percentage points (see, to that effect, judgment of 28 February 2018, Vakakis kai Synergates v Commission , T‑292/15, EU:T:2018:103, paragraphs 222 and 223 and the case-law cited).

235 Consequently, the compensation sought in relation to the loss of opportunity must be increased by default interest, starting from the date of delivery of the present judgment until full payment, the rate of which is that set by the ECB for its main refinancing operations, increased by two percentage points.

236 However, the Court considers that there is no specific justification, in the present case, for the capitalisation of the default interest payable to the applicants (see, to that effect, judgment of 12 February 2015, Commission v IPK International , C‑336/13 P, EU:C:2015:83, paragraph 54); nor was any such justification mentioned, moreover, by the applicants in their action.

4. Conclusion

237 It follows from the foregoing that the total amount of compensation payable to Airbus Defence and Space is EUR 3 864 315 and that the total amount of compensation payable to Marlink Events is EUR 458 185.

238 Furthermore, as was stated in paragraphs 235 and 236 above, that compensation must be increased by default interest, starting from the date of delivery of the present judgment until full payment, the rate of which is that set by the ECB for its main refinancing operations, increased by two percentage points, without capitalisation.

IV. Costs

239 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 EDA has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.

On those grounds,

THE GENERAL COURT (Fifth Chamber, sitting with five Judges)

hereby:

1. Annuls the decision of the European Defence Agency (EDA) of 12 December 2023 rejecting the tender submitted by the consortium formed by Airbus Defence and Space SAS and Marlink Events SAS in call for tenders 23.ISE.JP.001 entitled ‘Provision of C, Ku, (civ)Ka, L and UHF Bands Satellite Communications, (mil)Ka & X Bands Equipment and Related Services’ and awarding that contract to Telespazio France SAS, and the decision of the EDA of 23 January 2024, by which, in particular, it confirmed to the consortium the result of the tendering procedure and refused the request made by Airbus Defence and Space and Marlink Events for the disclosure of certain scores obtained in the evaluation of tenders;

2. Orders the European Union, represented by the EDA, to pay compensation for the damage suffered by Airbus Defence and Space and by Marlink Events in relation to the loss of an opportunity for the consortium formed by those two companies to be awarded the contract referred to in point 1 of the operative part;

3. Fixes the amount of compensation payable by the European Union, represented by the EDA, to Airbus Defence and Space at EUR 3 864 315, together with default interest starting from the date of delivery of the present judgment until full payment, at the rate set by the European Central Bank (ECB) for its main refinancing operations, increased by two percentage points;

4. Fixes the amount of compensation payable by the European Union, represented by the EDA, to Marlink Events at EUR 458 185, together with default interest starting from the date of delivery of the present judgment until full payment, at the rate set by the ECB for its main refinancing operations, increased by two percentage points;

5. Dismisses the action as to the remainder;

6. Orders the EDA to pay the costs.

Papasavvas | Svenningsen | Mac Eochaidh

Martín y Pérez de Nanclares | | Stancu

Delivered in open court in Luxembourg on 1 July 2026

[Signatures]

* Language of the case: French.

1 Confidential information redacted.