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

Provisional text

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

1 July 2026 ( * )

( Public service contracts – Negotiated procedure without prior publication of a contract notice – Private security services – Decision not to include the applicant among the pre-selected operators – Point (c) of the second subparagraph of point 11.1 and point 39.2 of Annex I to Regulation (EU, Euratom) 2018/1046 – Equal treatment – Principle of non-discrimination )

In Case T‑493/24,

Alhares for Security Services and Occupational Safety, established in Tripoli (Libya), represented by L. Vidal, lawyer,

applicant,

v

European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), represented by E. Raoult, lawyer,

defendant,

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

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

Registrar: H. Eriksson, Administrator,

having regard to the order of 6 December 2024, Alhares for Security Services and Occupational Safety v EUBAM Libya (T‑493/24 R, not published, EU:T:2024:886),

having regard to the written part of the procedure,

further to the hearing on 13 January 2026,

gives the following

Judgment

1 By its action based on Article 263 TFEU, the applicant, Alhares for Security Services and Occupational Safety, seeks the annulment, first, of the decision of the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya) (‘the Mission’), which became final on 10 September 2024, not to select it as a candidate invited to tender in a negotiated procedure without prior publication of a contract notice for the provision of private security services; secondly, of the Mission’s decision of 5 September 2024 refusing a request made by the applicant on 29 August 2024 for authorisation to submit a tender in that procedure; thirdly, of any act resulting from or made possible by those two decisions; fourthly, of the call for tenders organised by the Mission for the supply of private security services; and fifthly, of the contract concluded between the Mission and a consortium made up of First Call Security Services LLC and Amarante International LLC.

Background to the dispute

2 The Mission was established by Council Decision 2013/233/CFSP of 22 May 2013 on the Mission (OJ 2013 L 138, p. 15).

3 By letter of 17 July 2024 (Ares (2024)518542; ‘the decision of 17 July 2024’), the Director of the European Commission Service for Foreign Policy Instruments recognised, for the period from 1 July 2024 to 30 June 2025, that a crisis existed in Libya within the meaning of Article 2(21) 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; ‘the financial regulation’).

4 The decision of 17 July 2024 states that the recognition of a crisis was for the purposes of the application of flexible procurement procedures, in accordance with point (c) of the second subparagraph of point 11.1 and point 39.2 of Annex I to the financial regulation. The Director of the Commission Service for Foreign Policy Instruments also asked the heads of the missions concerned to refer to that decision when justifying the launching of negotiated procedures in a crisis situation.

5 The applicant is a company incorporated under Libyan law specialising in private security activities. In November 2023, it made itself known to the Mission in order to offer its services.

6 On 6 August 2024, the Mission, in the context of a negotiated procedure without prior publication, launched the restricted call for tenders EUBAM-24-24-Security Services (‘the call for tenders’), with a view to contracting with Libyan private security companies for the Mission, its members, and its assets and property in Tripoli (Libya). It invited six licensed security companies, selected from a list of 18 security operators recognised in Libya, to submit tenders. The deadline for the submission of tenders was initially set at 11 September 2024 and was then extended to 16 September 2024.

7 By two letters dated 29 August and 2 September 2024, the applicant requested authorisation to participate in the call for tenders, which it had discovered independently.

8 By letter of 5 September 2024, the Mission responded to the applicant stating, in particular, as follows:

‘EUBAM Libya applies “flexible procurement procedures”, in accordance with point (c) of the second subparagraph of point 11.1 and point 39.2 of Annex I to the [financial regulation] …’.

9 By letter of 9 September 2024, the applicant replied, stating in particular that, in its view, in order to use the negotiated procedure without prior publication, the contracting authority was required to demonstrate that the contract sought to respond to an unforeseeable event and that that event was a direct result of the crisis situation, and that those conditions were not satisfied in the case at hand. In reliance on that interpretation, the applicant asked the Mission to cancel the call for tenders and to organise a new one, under any applicable awarding procedure which did not exclude the applicant.

10 By letter of 11 September 2024, the Mission replied to the applicant’s letter of 9 September 2024 stating, in essence, first, that when, in the case at hand, it had used the negotiated procedure without prior publication of a contract notice, it had done so having regard to the crisis situation and the application of flexible procurement procedures, as referred to in the decision of 17 July 2024 (see paragraph 3 above), and secondly, that it was not under any obligation to invite all licensed operators in Libya to submit a tender.

11 It is apparent from a letter of 12 December 2024 from the Mission that the EUBAM-24-24-Security Services contract was awarded to a consortium made up of two companies that were separate from the applicant.

Forms of order sought

12 The applicant claims that the Court should:

– annul the decision adopted by the Mission, which became final no later than 10 September 2024, the closing date of the call for tenders, not to select it as a candidate invited to submit a tender in the negotiated procedure without prior publication for the provision of private security services;

– annul the decision of 5 September 2024, by which the Mission refused its request of 29 August 2024 for authorisation to submit a tender in the context of the call for tenders;

– annul any decision or act resulting from or made possible by the two preceding decisions, particularly in the context of the call for tenders;

– order the Mission to pay all the costs.

13 In the reply, the applicant repeats, in essence, the first two heads of claim set out above, adding two further heads by which it claims that the Court should:

– annul the call for tenders;

– annul the contract concluded between the Mission and a consortium made up of First Call Security Services and Amarante International.

14 The Mission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

15 In the application, the applicant advances three pleas in law alleging, first, an error of law vitiating the Mission’s decision to use the negotiated procedure without prior publication; secondly, a manifest error of assessment as regards compliance with the factual conditions for use of the negotiated procedure without prior publication; and thirdly, infringement of the principles of equal treatment and non-discrimination in the decisions not to include the applicant among the pre-selected operators and to refuse it authorisation to submit a tender. In the reply, the applicant advances, for the first time, a fourth plea in law, alleging infringement of Libyan law.

The subject matter of the dispute in so far as it relates to the first and second heads of claim

16 It must be observed at the outset that the first head of claim set out in the application, which is identical to the first head of claim in the reply, is directed against the Mission’s decision not to include the applicant among the operators pre-selected to submit a tender in the context of the call for tenders.

17 The second head of claim, set out in the application and the reply, concerns the Mission’s express refusal, in a letter of 5 September 2024, of the request made by the applicant in its letter of 29 August 2024 for authorisation to submit a tender in the call for tenders.

18 However, the fact that the Mission did not include the applicant when inviting undertakings which could submit tenders, despite the applicant having expressed an interest in November 2023, and despite its requests of 29 August and 2 September 2024, was manifested in and merges into the Mission’s express refusal, in its letter of 5 September 2024, of the applicant’s request of 29 August 2024. The fact that the Mission did not invite the applicant to tender does not go beyond the express refusal set out in its letter of 5 September 2024 and thus has no autonomous effect in relation to that letter. Furthermore, it was only in that letter that the Mission set out the factual and legal grounds for that refusal, thus enabling the applicant to bring an action and putting the Court in a position to review the legality of the decision expressing that refusal. Against that background, it must be stated that the Mission’s response of 11 September 2024 is merely an amplification of the considerations set out in the letter of 5 September 2024. Those two letters form an indivisible whole, and the Mission’s communication of 5 September 2024 must therefore be read in conjunction with the letter of 11 September 2024.

19 Having regard to those considerations, the first two heads of claim concern the same subject matter and must therefore be addressed together, given that they both relate, in essence, to the Mission’s refusal to include the applicant among the operators pre-selected to submit a tender.

Admissibility of the third head of claim set out in the application and the third and fourth heads of claim in the reply

20 By its third head of claim, the applicant seeks the annulment of ‘any decision or act resulting from or made possible by the two preceding decisions, particularly in the context of the call for tenders’.

21 In that regard, it must be stated that neither that head of claim nor the body of the application provides any detail as regards acts allegedly resulting from or made possible by the letter of 5 September 2024, read in conjunction with the letter of 11 September 2024. It is apparent from the case-law that such heads of claim do not indicate the subject matter of the proceedings with sufficient precision and must therefore be rejected under Article 76(d) of the Rules of Procedure of the General Court (see judgment of 12 May 2017, Costa v Parliament , T‑15/15 and T‑197/15, not published, EU:T:2017:332, paragraph 34 and the case-law cited).

22 It is true that the third and fourth heads of claim set out in the reply are directed with precision against further acts in respect of which annulment is sought. Nonetheless, they are manifestly inadmissible because they were not formulated in the application, contrary to Article 76(d) and (e) of the Rules of Procedure. In that regard, it must be recalled that, in principle, a subsequent act, adopted while the proceedings are ongoing, cannot be regarded as a new factor enabling the applicant to amend the form of order sought without thereby altering the subject matter of the proceedings (see, to that effect, judgments of 25 September 1979, Commission v France , 232/78, EU:C:1979:215, paragraph 3, and of 10 July 1990, Automec v Commission , T‑64/89, EU:T:1990:42, paragraph 69). Consequently, the fact that the acts concerned by the third and fourth heads of claim set out in the reply were adopted after the present action had been brought cannot justify an alteration to the subject matter of the proceedings as defined in the application initiating proceedings.

23 Furthermore, it must also be stated that those heads of claim cannot be regarded as admissible as a modification of the application under Article 86(1) of the Rules of Procedure. Under that provision, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, by no later than two weeks after service of a decision fixing the date of the hearing or before service of the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor. However, in the present case, there is nothing in the file to permit the conclusion that a measure the annulment of which had been sought in the application was replaced by another measure with the same subject matter. Furthermore, and in any event, under Article 86(2) of the Rules of Procedure, the modification of the application must be made by a separate document, which was not the case in this instance.

24 It follows from the foregoing that the third head of claim set out in the application and the third and fourth heads of claim set out in the reply must be dismissed as inadmissible.

Substance

First plea: error of law with respect to Article 164(1)(d) and (f) of the financial regulation, read in conjunction with point (c) of the second subparagraph of point 11.1 of Annex I to that regulation, committed by the Mission in deciding to use the negotiated procedure without prior publication

25 According to the applicant, when, in the present case, the Mission used the negotiated procedure without prior publication of a contract notice, it infringed the financial regulation. The applicant submits that the Mission was wrong to refer, in its letter of 5 September 2024, read in conjunction with the letter of 11 September 2024, to an application of point (c) of the second subparagraph of point 11.1 and point 39.2 of Annex I to the financial regulation, in conjunction with Article 164(1)(d) of that regulation.

26 The applicant observes that, according to point 39.2 of Annex I to the financial regulation, for the purposes of point (c) of the second subparagraph of point 11.1 of that annex, operations carried out in a crisis are considered to satisfy the test of extreme urgency. It submits, however, that that provision makes it possible to satisfy only one of the three conditions provided for in point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation. That latter point requires three conditions to be met, namely that there is an unforeseeable event, a situation of extreme urgency, and that there is a causal link between the unforeseeable event and the situation of extreme urgency.

27 The applicant submits that in the present case, the recognition of a crisis satisfied only the second condition laid down by point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation, namely the requirement that there be a situation of extreme urgency. By contrast, and contrary to what was suggested by the Mission’s letters of 5 and 11 September 2024, the two other conditions remain unsatisfied. Thus, in seeking to justify the non-inclusion of the applicant by invoking, as the sole ground, a ‘crisis situation’, as recognised in respect of Libya in the decision of 17 July 2024 (see paragraph 2 above), the Mission did not provide a legal justification for its decision.

28 The Mission disputes those arguments.

29 The parties essentially differ on the issue of whether, in using a negotiated procedure without prior publication of a contract notice, the Mission infringed the financial regulation. More specifically, the issue in dispute relates to the justification put forward by the Mission, which relies on point (c) of the second subparagraph of point 11.1 and point 39.2 of Annex I to the financial regulation, read in conjunction with Article 164(1)(d) of the financial regulation – a justification which the applicant considers to be invalid. The question is whether point 39.2 of Annex I to the financial regulation covers all the conditions laid down by point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation, or only some of them.

30 According to the applicant, in so far as it states that ‘operations carried out in a crisis shall be considered to satisfy the test of extreme urgency’, point 39.2 of Annex I to the financial regulation satisfies only the condition related to ‘extreme urgency’ and not the other conditions of point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation. At the hearing, the applicant stated that in referring, in the reply, to the attribution of an ‘unforeseeable event’, a condition of point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation, it was referring only to the causal link which must exist between the ‘extreme urgency’ and the ‘unforeseeable events’ referred to in that provision. Thus, it submitted, it was not addressing the concept of ‘exceptional circumstances’, forming part of the last condition laid down in that point. The Mission, for its part, reiterated at the hearing that the wording of the first sentence of point 39.2 of Annex I to the financial regulation covered all the conditions set out in point (c) of the second subparagraph of point 11.1 of that annex.

31 In that regard, it should be recalled that, under Article 178(1) of the financial regulation, the general rules on procurement laid down in Chapter 1 of Title VII of that regulation apply to contracts covered by Chapter 3 as far as external actions are concerned, subject to the special provisions in Chapter 3 of Annex I to that regulation.

32 As regards those general provisions, under Article 160(1) of the financial regulation, all contracts financed in whole or in part by the budget of the European Union must respect the principles of transparency, proportionality, equal treatment and non-discrimination. In accordance with Article 160(2) of that regulation, all contracts are to be put out to competition on the broadest possible basis, except when use is made of the procedure referred to in Article 164(1)(d) of that regulation.

33 Under Article 164(1)(d) of the financial regulation, procurement procedures for the award of concession contracts or public contracts, including framework contracts, may take the form of a negotiated procedure, including without prior publication. Under Article 164(5)(f) of the financial regulation, the contracting authority may use the negotiated procedure, inter alia, in the clearly defined ‘exceptional circumstances’ set out in Annex I to that regulation.

34 According to the first subparagraph of point 11.1 of Annex I to the financial regulation, where the contracting authority uses the negotiated procedure without prior publication of a contract notice, it must comply, inter alia, with the arrangements on negotiation set out in Article 164(4) of that regulation.

35 Under point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation, the contracting authority may use the negotiated procedure without prior publication of a contract notice, regardless of the estimated value of the contract, ‘in so far as is strictly necessary where, for reasons of extreme urgency brought about by unforeseeable events, it is impossible to comply with the time limits laid down in points 24, 26 and 41 [of that annex] and where the justification of such extreme urgency is not attributable to the contracting authority’.

36 In that regard, it should be stated that, contrary to what is claimed by the applicant, point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation permits the use of the negotiated procedure, irrespective of value, where, essentially, six – and not three – cumulative conditions are met: first, the negotiated procedure is ‘strictly necessary’, second, there is ‘extreme urgency’, which, third, is ‘brought about’, fourth, by ‘unforeseeable events’. Fifth, the extreme urgency must make it ‘impossible to comply with the time limits’ of general law ‘laid down in points 24, 26 and 41’ of that annex to the financial regulation, and, sixth, the ‘justification of such extreme urgency’ must not be attributable to the contracting authority.

37 Furthermore, the first sentence of point 39.2 of Annex I to the financial regulation provides that ‘for the purposes of point (c) of the second subparagraph of point 11.1 [of Annex I to the financial regulation], operations carried out in a crisis shall be considered to satisfy the test of extreme urgency’. The second sentence of that point empowers the authorising officer by delegation, where appropriate in concertation with the other authorising officers by delegation concerned, to establish that a situation of extreme urgency exists, reviewing his or her decision regularly having regard to the principle of sound financial management.

38 Those provisions are among those by which the EU legislature has laid down, in Chapter 3 of Annex I to the financial regulation, special rules for the use and implementation of procurement procedures in the field of EU external actions.

39 In the present case, having regard to the differing interpretations put forward by the parties, it is necessary to determine which conditions, among those set out in point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation, may be regarded as satisfied where point 39.2 of that annex applies.

40 It that regard, it should be borne in mind, first, that, according to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also its objectives and the context in which it occurs (see judgment of 24 June 2014, Parliament v Council , C‑658/11, EU:C:2014:2025, paragraph 51 and the case-law cited). Secondly, it is also settled case-law that any derogation from the general rules must be strictly interpreted (see, to that effect, judgment of 2 October 2008, Commission v Italy , C‑157/06, EU:C:2008:530, paragraph 23 and the case-law cited). In the present case, there is no doubt that point 39.2 of Annex I to the financial regulation is a derogation.

– Literal interpretation of the first sentence of point 39.2 of Annex I to the financial regulation

41 The interpretations of the first sentence of point 39.2 of Annex I to the financial regulation advanced by the parties (see paragraph 30 above) are based essentially on a literal reading, relying in particular on the case-law of the Court of Justice concerning the public procurement directives which are applicable when public contracts are awarded within the territory of the European Union.

42 In that regard, it should be observed that, according to settled case-law of the Court of Justice concerning the public procurement directives, the derogation permitting the use of the negotiated procedure without prior publication of a contract notice is subject to three cumulative conditions, namely the existence, in addition to an unforeseeable event, of extreme urgency rendering the observance of time limits laid down by other procedures impossible, and a causal link between the unforeseeable event and the extreme urgency resulting therefrom (judgment of 28 March 1996, Commission v Germany , C‑318/94, EU:C:1996:149, paragraph 14, and order of 20 June 2013, Consiglio Nazionale degli Ingegneri , C‑352/12, not published, EU:C:2013:416, paragraph 50).

43 As regards the three conditions referred to in particular by the applicant, namely the existence, not only of an unforeseeable event, but also of extreme urgency making it impossible to comply with the time limits applicable to other procedures, and of a causal link between the unforeseeable event and the extreme urgency resulting therefrom, the provisions concerning the negotiated procedure without prior notice, as they appear in the public procurement directives and are reproduced in the case-law of the Court of Justice referred to above, are practically identical to those in point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation. Consequently, the Court of Justice’s interpretation of those requirements can be transposed to that point.

44 Furthermore, it is clear from the very wording of point 39.2 of Annex I to the financial regulation, cited in paragraph 37 above, that the assimilation of ‘extreme urgency’ and ‘operations carried out in a crisis’ effected by that provision must be read as covering the second, third and fourth conditions of point (c) of the second subparagraph of point 11.1 of that annex, referred to in paragraph 36 above.

45 Indeed, whenever the European Union carries out operations in a crisis, ‘extreme urgency’ within the meaning of point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation is established. Such urgency is presented, through the wording employed by the legislature, as resulting from EU operations that are considered necessary in a crisis situation. Thus, the very wording of point 39.2 of Annex I to the financial regulation literally assimilates ‘operations [being] carried out [by the European Union] in a crisis’ with ‘[a situation of] extreme urgency’ for the purposes of point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation. It therefore follows from the combined wording of those two provisions that it is the ‘crisis situation’ that causes the ‘operations carried out [by the European Union’], which are deemed in law to constitute ‘extreme urgency’.

46 That having been said, it remains true, contrary to what the Mission appears to argue in the pleadings it has submitted to the Court, that the other three conditions laid down by point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation, namely those of strict necessity, incompatibility with the time limits of general law and the absence of any attributability to the contracting authority, the observance of which is not disputed in the present case by the applicant, remain applicable as a matter of law, even in the specific context of applying point 39.2 of that annex.

47 In such a context, the contracting authority in fact remains obliged to satisfy itself that all six of the cumulative conditions set out in point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation are met, including the conditions other than those covered by point 39.2 of that annex.

48 Accordingly, each of the conditions of strict necessity, of incompatibility with the time limits laid down by the general procedures and of the absence of attributability to the contracting authority must be met in order to guarantee that each procurement procedure complies with point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation. However, the applicant has not presented any specific arguments in the present case relating to those conditions or, a fortiori, raised any complaint based on an infringement thereof, as it confirmed at the hearing.

– Contextual interpretation

49 The interpretation set out in paragraphs 44 and 45 above is supported by the context to which point 39.2 of Annex I to the financial regulation belongs.

50 When point 39.2 of Annex I to the financial regulation refers, for the purposes of point (c) of the second subparagraph of point 11.1 of that annex, to a ‘crisis’ situation, it is referring to a concept that the legislature has itself defined, in Article 2(21) of that regulation. Under that provision, a crisis is ‘a situation of immediate or imminent danger threatening to escalate into an armed conflict or to destabilise a country or its neighbourhood’ (Article 2(21)(a) of the financial regulation), or situations ‘caused’, inter alia, by ‘man-made cris[es] such as wars and other conflicts’ or other comparable extraordinary circumstances (Article 2(21)(b) of the financial regulation).

51 The definition of ‘crisis’ thus set out in Article 2(21) of the financial regulation confirms and clarifies the reading of point 39.2 of Annex I to that regulation, according to which that latter point covers the second, third and fourth conditions of point (c) of the second subparagraph of point 11.1 of that annex.

52 By closely linking the concept of a ‘crisis’ to both ‘a situation of … danger’ and a risk of conflict or destabilisation, that definition inevitably implies that the concept of a ‘crisis’ encompasses that of ‘unforeseeable events’. The concept of a risk ‘of conflict or destabilisation’ necessarily refers to a series of incidents having a negative impact, in particular on peace or stability, thus fully reflecting and illustrating the concept of ‘unforeseeable events’ referred to in point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation.

53 In addition, the concept of ‘a situation of … danger’ in terms of Article 2(21)(a) of the financial regulation necessarily reflects the possibility of such incidents arising. The ‘situation of … danger’ and risk ‘of conflict or destabilisation’ cannot be understood independently from each other since, on the contrary, the first is a direct result of the second. The words ‘immediate or imminent’, which appear in Article 2(21)(a) of the financial regulation, reinforce that idea, by emphasising the urgency of the situation and establishing a link between the existing danger and the risk of an escalation into an armed conflict or a threat to regional stability. Having regard to that interdependence, the relationship established between the existing danger and the risk of an escalation into armed conflict must be interpreted as implying a causal link.

54 Thus, the concept of ‘crisis’ defined in Article 2(21) of the financial regulation covers not only the second and fourth conditions of point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation, namely extreme urgency and the unforeseeability of events, but also, and necessarily, the causal link referred to in particular in the case-law cited in paragraph 42 above. Furthermore, if the ‘crisis’ were to be considered from the perspective of Article 2(21)(b) of the financial regulation, it would have to be observed that the situations contemplated by those provisions, in particular a situation ‘caused by … man-made crisis such as wars and other conflicts’, may also lead to a state of extreme urgency. Thus, those situations also necessarily establish the causal link.

– Purposive interpretation

55 The interpretation by which point 39.2 of Annex I to the financial regulation covers the second, third and fourth conditions of point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation may also be confirmed through an examination of the objectives assigned to the common foreign and security policy (CFSP), as they appear from Article 38(2) and (3) and Articles 42 and 43 TEU, and through an examination of the aims of EU public procurement law as applied to the CFSP.

56 In that regard, it must be recalled that Decision 2013/233 was adopted on the basis of Article 28, Article 42(4) and Article 43(2) TEU. The latter two provisions are in Section 2 of Chapter 2 of Title V of the EU Treaty, which relates to the common security and defence policy (CSDP), which is an essential component of the CFSP.

57 In the first place, it is apparent from the general scheme of Articles 42 and 43 TEU that the constituent power of the European Union, namely the Member States, intended to create a specific legal framework for the CFSP, and more specifically the CSDP, which would endow the European Union with the capacity for effective action in response to crises.

58 More specifically, under Article 42(1) TEU, the CSDP is an integral part of the CFSP and ‘provide[s] the Union with an operational capacity drawing on civilian and military assets’. That provision is intended to ensure that the European Union is able to deploy, in a concrete and effective way, assets which are suited to the requirements of the operational context. The operational capacity of such assets would not serve any useful purpose if it could not be mobilised quickly, particularly in situations characterised by a rapid deterioration of the security situation.

59 As for Article 43(1) TEU, that provision clarifies the scope of that operational capacity by listing the tasks that may be entrusted to the European Union, which include, in particular, conflict prevention and peace-keeping tasks and post-conflict stabilisation tasks, which fall within crisis management. By their very nature, those tasks concern situations where there is urgency, a lack of foreseeability and the need for an immediate response. It follows that the drafters of the EU Treaty intended that the European Union should be able to intervene on a timescale compatible with the inherent demands of such situations.

60 That requirement is corroborated by Article 38 TEU, which, moreover, is cited in Article 9 of Decision 2013/233. That provision entrusts the Political and Security Committee (PSC), by its first paragraph, with the monitoring of the international situation, and, by its second paragraph, with political control and strategic direction of crisis management operations. The allocation of those competences to a permanent body given specific responsibility for monitoring the development of international situations indicates an intention to ensure continuity as regards EU action as well as a capacity to adapt swiftly to circumstances, avoiding decision-making timescales that would be incompatible with the management of urgent situations.

61 It follows from all of those provisions, interpreted together, and in the light of their purpose, that swiftness of action is a structural feature of the legal framework of the CFSP and the CSDP. That swiftness is not merely a matter of political expediency, but is among the essential objectives pursued by the EU Treaty in the field of crisis prevention and management, serving to enable the European Union to intervene effectively in urgent situations.

62 In the second place, as regards, in particular, EU public procurement law, it must be stated that this is based on the fundamental principle of open, fair and transparent competition. Derogations from that principle, in particular the use of the negotiated procedure without prior publication provided for in Article 164(1)(d) of the financial regulation, and in point (c) of the second subparagraph of point 11.1 and point 39.2 of Annex I to that regulation, are in the nature of exceptions and, as such, must be strictly interpreted.

63 Nonetheless, the provisions concerning public contracts relating to external actions must be interpreted in such a way as to contribute effectively to the attainment of the objectives pursued by the legal framework of the EU measure concerned.

64 The CFSP, and to an even greater extent the CSDP, is a specific area of action, generally characterised by a need to be responsive and flexible, particularly where the existence of a crisis has been established. The law of public procurement that is applicable to actions taken under the CSDP necessarily follows the same logic.

65 In that regard, through the use of the concept of a ‘crisis’, as defined in Article 2(21) of the financial regulation and referred to in point 39.2 of Annex I to that regulation, the EU legislature intended to make the means necessary for the management of a crisis subject to a specific body of rules, taking account of the particular requirements of such situations, and in particular the imperatives of swiftness and flexibility that are inherent in the CFSP.

66 Point 39.2 of Annex I to the financial regulation thus strikes a balance between, on the one hand, the characteristic rigour of EU public procurement law, both in terms of respect for the principle of competition and in terms of derogations being strictly circumscribed, and, on the other hand, the need for responsiveness inherent to the CFSP and CSDP. By assimilating ‘operations carried out in a crisis’ to a situation of ‘extreme urgency’, that provision functions specifically to establish the requisite balance between budgetary discipline and operational effectiveness.

67 It follows that the interpretation of point 39.2 of Annex I of the financial regulation, in the light of the concept of ‘crisis’, as defined in Article 2(21) of that regulation, leads to the conclusion that the phrase ‘operations carried out in a crisis’ encompasses all the components of extreme urgency, including the two additional conditions relating to unforeseeability of the event and the existence of a causal link, provided for in point (c) of the second subparagraph of point 11.1 of Annex I to that regulation.

– The interpretation proposed by the Mission in the present case

68 In the present case, in its response of 5 September 2024, the Mission referred not only to point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation, but also to point 39.2 of that annex. Furthermore, in so far as, in its letter of 11 September 2024, supplementing its response of 5 September 2024, it relied on the existence of a ‘crisis situation’ in Libya as a justification for the choice of a negotiated procedure without prior publication, that indication clearly echoed point 39.2 of Annex I to the financial regulation, which must be read in conjunction with point (c) of the second subparagraph of point 11.1 of that annex, as has been stated above.

69 In those circumstances, the Mission, in referring to point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation and to point 39.2 of that annex, and also to the concept of a ‘crisis situation’, did nothing more than to indicate the relevant legal framework and did not make any error as to the interpretation of that framework.

70 In that regard, it must be stated that an operator is entitled to challenge the legality of a finding of a ‘crisis situation’ that is relied on to justify the use of certain public procurement procedures referred to in the financial regulation, such as the finding in the decision of 17 July 2024.

71 Consequently, the first plea must be dismissed as unfounded in its entirety.

Second plea: manifest error of assessment in applying the conditions enabling the negotiated procedure without prior publication to be used in a crisis situation

72 By its second plea, the applicant submits, in essence, that the Mission – which has the burden of proof in that regard – has not proved that, in the present case, the decision to use the negotiated procedure without prior publication met the conditions required by Article 164(1)(d) and (f) of the financial regulation, read in conjunction with point (c) of the second subparagraph of point 11.1 and point 39.2 of Annex I to that regulation. In so arguing, the applicant alleges that the Mission made several manifest errors of assessment in its letter of 5 September 2024.

73 In the first place, it states that the Mission did not demonstrate that there was a ‘crisis situation’ which would have justified the use of the negotiated procedure without prior publication. It is impossible, on the basis of the information provided by the Mission in its letters of 5 and 11 September 2024, to conclude that such a ‘crisis situation’ actually existed as regards Libya, that it was ongoing when the call for tenders was launched, and that the Mission’s operations were carried out in a crisis. As regards the ‘crisis situation’, it is true that the Mission referred to the decision of 17 July 2024. However, that decision is in no way a sufficient legal basis to justify the letter of 5 September 2024. That decision, which the Mission seems to interpret as a sort of ‘general authorisation’, and which the applicant in any event has no reason to contest, was not published by the Publications Office of the European Union on the EUR-Lex website, on public sites or by the Commission itself.

74 In the second place, the Mission has also failed to demonstrate that there was an unforeseeable event. Such an event cannot reside in the simple fact that, in the summer of 2024, the Mission had an urgent requirement for private security services. The Mission’s need to ensure the safety of its staff and facilities is continuous in nature. The ‘crisis situation’ relied on by the Mission cannot be the cause of an unforeseeable event.

75 The Mission disputes those arguments.

76 In the first place, the applicant is correct in observing that the Mission has the burden of proof with regard to demonstrating facts satisfying the condition relating to ‘exceptional circumstances’, referred to in Article 164(5)(f) of the financial regulation, and accordingly, in particular, to the existence of a crisis within the meaning of point 39.2 of Annex I to that regulation. The burden of proving the existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on that derogation (see, by analogy, judgments of 8 April 2008, Commission v Italy , C‑337/05, EU:C:2008:203, paragraph 58 and the case-law cited, and of 15 October 2009, Commission v Germany , C‑275/08, not published, EU:C:2009:632, paragraph 56 and the case-law cited).

77 Nonetheless, in the present case, the applicant is not justified in disputing that the Mission has discharged the burden of proof as regards the justification of the decision to use the negotiated procedure without prior publication, given that the Mission has demonstrated that there was a crisis situation within the meaning of point 39.2 of Annex I of the financial regulation and that it is not even disputed that the other conditions laid down by point (c) of the second subparagraph of point 11.1 of that annex are met in the present case.

78 In its letter of 11 September 2024, the Mission expressly stated that the Director of the Commission Service for Foreign Policy Instruments had, in the decision of 17 July 2024, ‘extended the recognition of [a] crisis situation and [the] application of flexible procurement procedures’. In so stating, the Mission was referring expressly to the crisis situation for the period from 1 July 2024 to 30 June 2025.

79 In that regard, the applicant submits in vain that that it was ‘impossible’ for it to know that a crisis situation existed in Libya for that period.

80 On the contrary, the applicant must be regarded as having had knowledge, on the dates when the Mission letters in question were written (5 and 11 September 2024), of the existence of a crisis situation as regards Libya for the period from 1 July 2024 to 30 June 2025.

81 First, it must be borne in mind that the applicant, which, moreover, is a security services company, was, on the dates when the Mission letters in question were written (5 and 11 September 2024), in a position to know the factual background against which the Mission had been created.

82 In that regard, it is apparent from recitals 1 to 5 of Decision 2013/233 that the Mission had been created, in 2013, on the basis that a crisis situation had been found to exist in Libya. In particular, it is apparent from recital 3 of that decision, in its initial version, that, on 31 January 2013, the Council of the European Union had approved the ‘crisis management’ concept for a possible CSDP civilian mission in Libya. In addition, it is apparent from recital 5 of that decision, again in its initial version, that the Mission was to be conducted in the context of a situation which might ‘deteriorate and could impede the achievement of the objectives of the Union’s external action’ as set out in Article 21 TEU. Furthermore, it is apparent, in essence, from Article 4(1) of that decision that the Mission is a ‘crisis management operation’.

83 Secondly, the applicant cannot reasonably claim that it was unaware, on the dates when the Mission letters in question were written (5 and 11 September 2024), of the factual background which had justified the extension of the Mission’s mandate for the period from 1 July 2024 to 30 June 2025.

84 Between 2014 and 2023, Decision 2013/233 was amended by a number of Council Decisions which had the objective, inter alia, of extending the Mission’s mandate as a crisis management operation, in view in particular of the crisis situation that existed in Libya, the last of those decisions being – so far as relevant to the present dispute – Council Decision (CFSP) 2023/1305 of 26 June 2023 amending Decision 2013/233 (OJ 2023 L 161, p. 68).

85 In particular, it is apparent from recital 3 of Decision 2023/1305 that ‘in the context of the Strategic Review of the Mission, the [PSC] agreed that [the Mission] should be extended by two years until 30 June 2025 and that in this period the Mission should contribute to enhancing the capacity of the relevant Libyan authorities and agencies to manage Libya’s borders, to fight cross-border crime, including human trafficking and migrant smuggling, and to counter terrorism’.

86 The extension referred to in recital 3 of Decision 2023/1305 of the Mission’s mandate as a ‘crisis management’ operation, until 30 June 2025, is based on a reiteration of the Council’s recognition that there was an ongoing crisis in Libya.

87 The applicant also criticises the fact that the decision of 17 July 2024 was not published.

88 However, while the applicant did not have access to that decision, it must be borne in mind that it had access to its essential content through the letter of 11 September 2024. That letter stated that the Director of the Service for Foreign Policy Instruments had extended the recognition of a crisis situation in Libya, it being clear that the crisis referred to was one falling within the definition in point 39.2 of Annex I of the financial regulation, which had already been cited by the Mission in its letter of 5 September 2024.

89 In any event, the fact that the applicant did not have access to the decision of 17 July 2024 has no bearing on the reality of the recognition of a crisis situation in Libya contained – albeit impliedly –in the wording of recital 3 of Decision 2023/1305. On that point, it must be emphasised that that recital forms part of the factual basis, which must have been known to the parties, which is at the origin not only of the decision of 17 July 2024, but also of the letters of 5 and 11 September 2024. Given the decisions adopted by the Council as regards the extension of the Mission’s mandate and, in particular, the wording of recital 3 of Decision 2023/1305 – a decision which was published – it must be held that the applicant could not have been unaware of the ‘crisis situation’ that existed in Libya, within the meaning of point 39.2 of Annex I to the financial regulation, or of the fact that the recognition of that situation had been extended until 30 June 2025.

90 In the second place, in so far as the applicant submits that the Mission has not demonstrated that there was an ‘unforeseeable event’ within the meaning of point (c) of the second subparagraph of point 11.1 of Annex I to the financial regulation (see paragraph 74 above), it must be reiterated that, as is apparent, in essence, from the observations made in the course of addressing the first plea, the phrase ‘operations carried out in a crisis’, which appears in point 39.2 of Annex I to the financial regulation and is defined in Article 2(21)(a) of that regulation, covers, inter alia, the condition requiring an unforeseeable event, which is mentioned in point (c) of the second subparagraph of point 11.1 of that annex. Consequently, the Mission was not required to provide specific proof that, besides a crisis situation, there was an unforeseeable event.

91 In that regard, it must be observed that the crisis situation on which the decision of 17 July 2024 is based actually manifested itself through unforeseeable events, and that the causal link between those events and the recognition of extreme urgency has not been challenged by the applicant.

92 As the Mission has stated, and which is not disputed by the applicant, in 2024 the Mission was confronted, a month before the call for tenders was launched, with outbreaks of violence in Tripoli, triggered by the removal of the governor of the Central Bank of Libya. Those clashes led to road closures, restrictions on movement, fatal skirmishes and the near-paralysis of the region following serious disruption to oil and fuel supplies. While the situation stabilised in October 2024, the underlying tensions were still present when the letters at issue were written. At that time, Libya was still in the grip of instability, with no reliable central authority and no predictable administrative and legal framework.

93 That example illustrates the scope of the concept of a ‘crisis’ in relation to the condition requiring an ‘unforeseeable event’. Accordingly, the applicant’s arguments, which are based on an alleged failure to demonstrate any such event, cannot be upheld. The mere fact that a crisis within the meaning of point 39.2 of Annex I to the financial regulation has been declared a priori presupposes the occurrence of unforeseeable events, which, in the present case, cannot be disputed.

94 In the light of all the foregoing, the second plea must be dismissed as unfounded.

Third plea: infringement of the principles of equal treatment and non-discrimination

95 By its third plea, the applicant submits that, in the letter of 5 September 2024, the Mission admitted that it had carried out a local market survey, selecting security companies on the basis of publicly available documents and the lists provided by the facilities security authority in Libya. Despite recognising that the applicant was listed by that authority as a licensed service provider, the Mission chose to exclude it from the list of candidates authorised to submit tenders.

96 The applicant submits, first, that that exclusion cannot be justified by the claim that the Mission was under no legal obligation to invite all licensed operators.

97 Secondly, that exclusion, which was based on discriminatory criteria, infringes the principles of equal treatment and non-discrimination.

98 Thirdly, according to information which does not appear in the letters of 5 and 11 September 2024, the Mission selected, in particular, companies whose management had controversial links with certain Libyan Islamic groups as well as other operators linked with adverse past events.

99 Fourthly, in so far as the Mission, in the defence, stated that in the selection process, preference was given to entities having previously worked with the Mission, that factor is sufficient, in itself, to vitiate the entire tender procedure, because selection or pre-selection may only be based on objective criteria relating to the intrinsic qualities of the tender and of the candidate. Furthermore, the Mission’s statement, also in the defence, that it had given preference to companies with an established presence at Palm City Residences, a complex in Tripoli, is a bald statement that is not supported by evidence in the file, and which, furthermore, amounts to a manifestly arbitrary criterion. In any event, the service providers who were awarded contract EUBAM-24-24-Security Services in the present case are companies located outside Palm City Residences.

100 The Mission disputes those arguments.

101 As a preliminary point, it must be borne in mind that, as has already been stated in paragraph 32 above, in accordance with Article 160(2) of the financial regulation, the principle that all contracts are to be put out to competition on the broadest possible basis does not apply when the contracting authority makes use of the procedure referred to in Article 164(1)(d) of that regulation.

102 It has been held, applying those provisions, that where the contracting authority has legitimately established that the conditions for using the negotiated procedure without prior publication are satisfied, it cannot be criticised for having failed to observe the principle of equal treatment by not sending an invitation to tender to certain undertakings operating on the market concerned by that procedure (judgment of 6 September 2023, Enmacc v Commission , T‑1/23, not published, EU:T:2023:506, paragraph 120). The case-law also holds that an applicant who had asked to be invited to submit a tender in a negotiated procedure without prior publication of a contract notice cannot claim that the principle of equal treatment had to be observed at every stage of the procedure for the award of the contract in question in the procurement procedure at issue (judgment of 6 September 2023, Enmacc v Commission , T‑1/23, not published, EU:T:2023:506, paragraph 121).

103 First, it is not disputed that the present case concerns a negotiated procedure without prior publication of a contract notice. Second, it follows from the considerations set out above that the applicant has not demonstrated that the Mission did not implement that procedure in a lawful manner. In those circumstances, the applicant, as an undertaking that was not invited to submit a tender, cannot rely on infringement of the principles of equal treatment and non-discrimination.

104 In those circumstances, the third plea must be dismissed as unfounded.

Fourth plea: infringement of Libyan law

105 By a plea raised for the first time in paragraphs 66 to 72 of the reply, the applicant claims that ‘the selected tender and therefore contract EUBAM-24-24-Security Services’ are contrary to Libyan legislation, because they entrust private security services to a non-Libyan service provider whereas, under that legislation, in essence, a foreign company may not provide private security services on Libyan territory in any capacity.

106 In that regard, it suffices to observe that that plea was raised in support of the fourth head of claim, referred to in the reply. Since that head of claim is inadmissible (see paragraph 24 above), the plea raised in support of it must be dismissed.

Costs

107 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.

108 Under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if that party has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.

109 In the present case, while the applicant has been unsuccessful, it must be stated that, although she was duly given notice to attend, the representative of the Mission did not attend the hearing initially fixed by the Court for 4 December 2025 and provided no excuse for her absence, as recorded in the transcript of the hearing.

110 The Court considers it fair in the circumstances of the case to order the Mission to bear the costs incurred by the parties with a view to the hearing on 4 December 2025, in respect of which they had been given notice to attend, but which ultimately had to be adjourned to a later date.

111 Furthermore, it must be observed that, in the order of 9 April 2025, Alhares for Security Services and Occupational Safety v EUBAM Libya (C‑878/24 P (R), EU:C:2025:256), the applicant was ordered to bear the costs of the interim proceedings, in so far as they were pursued on appeal.

112 Having regard to the foregoing, as the applicant has been unsuccessful in all of its claims, it must be ordered to bear its own costs and to pay those incurred by the Mission, including the costs relating to the interim proceedings before the General Court, in accordance with the form of order sought by the Mission, excluding all costs incurred by reason of the organisation of the hearing originally fixed for 4 December 2025, for which the Mission must be responsible.

On those grounds,

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

hereby:

1. Dismisses the action;

2. Orders Alhares for Security Services and Occupational Safety to pay the costs, including those relating to the interim proceedings before the General Court, but excluding all costs incurred by reason of the organisation of the hearing originally fixed for 4 December 2025;

3. Orders the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya) to bear the entirety of the costs incurred by reason of the organisation of the hearing originally fixed for 4 December 2025.

Papasavvas | Kowalik-Bańczyk | da Silva Passos

Cassagnabère | | Pavelin

Delivered in open court in Luxembourg on 1 July 2026.

[Signatures]

* Language of the case: French.