Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

ORDER OF THE VICE-PRESIDENT OF THE GENERAL COURT

26 September 2017 (*)

(Application for interim measures — Public service contracts — Tendering procedure — Provision of a treasury management system — Rejection of one tenderer’s bid and award of the contract to another tenderer — Application for suspension of operation of a measure — No urgency)

In Case T‑579/17 R,

Wall Street Systems UK Ltd, established in London (United Kingdom), represented by A. Csaki, lawyer,

applicant,

v

European Central Bank (ECB), represented by C. Kroppenstedt and I. Köpfer, acting as Agents, and by U. Soltész and A. Neun, lawyers,

defendant,

APPLICATION pursuant to Articles 278 and 279 TFEU for the suspension of operation of the decision rejecting the appeal brought by the applicant in the context of the call for tenders 2016/S 093-165651,

THE VICE-PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute

1        By a contract notice dated 14 May 2016 published in the Supplement to the Official Journal of the European Union (OJ 2016 S 093) with reference PRO‑001898, the European Central Bank (ECB) initiated a negotiated tendering procedure for the conclusion of a framework agreement concerning the provision of a treasury management system.

2        Twelve applications were received within the prescribed period, including that of the applicant, Wall Street Systems UK. Following an evaluation stage, which took place between 4 and 26 July 2016, the ECB invited six candidates, including the applicant, to take part in the negotiated procedure.

3        After a first round of negotiations between 1 and 6 February 2017, the ECB invited the applicant and another undertaking to a second round of negotiations, which took place on 27 and 28 April 2017, and then to a third round of negotiations, which took place on 9 June 2017.

4        By letter of 29 June 2017, the ECB informed the applicant that its tender had not been selected for the award of the contract since it was not the most economically advantageous tender. In that letter the ECB stated that the applicant’s tender, which was ranked second, had received 94.39 points, whilst the most economically advantageous tender had scored 95.07 points. By that letter, the ECB also informed the applicant that the contract would be signed after a period of 10 calendar days starting on the day following dispatch of the decision rejecting the tender and that the applicant could request further information concerning the rejection of its tender.

5        By email of 3 July 2017, the applicant asked the ECB to provide it with further information concerning the evaluation of the tenders.

6        In parallel, on 6 July 2017, the applicant, on the basis of Article 39 of Decision (EU) 2016/245 of 9 February 2016 laying down the rules on procurement (ECB/2016/2) (OJ 2016 L 45, p. 15), lodged an appeal before the ECB’s Procurement Review Body, challenging the ECB’s award decision, adopted in the negotiated procedure for the provision of a treasury management system. By its appeal it sought suspension of the procedure for awarding the contract and an order that the allegedly infringing stages of the tendering procedure be repeated, including the evaluation stage.

7        By letter of 17 August 2017 the ECB’s Procurement Review Body informed the applicant that it had decided to reject its appeal (‘the contested decision’). By email of 21 August 2017, the ECB informed the applicant that the contract would not be signed before the expiry of a period of 10 calendar days from the sending of the email.

 Procedure and forms of order sought

8        By application lodged at the Registry of the General Court on 28 August 2017, the applicant brought an action under Article 263 TFEU for annulment of the contested decision.

9        By a separate document, lodged at the Court Registry on the same date, the applicant brought the present application for interim measures, in which it claims that the Vice-President of the General Court should:

–        order the ECB to refrain from entering into the ‘Framework Agreement for the Provision of a Treasury Management System and Support Services’ with the successful tenderer until the General Court has ruled on the application for annulment of the contested decision;

–        adopt any other necessary measures for the protection of the applicant’s rights until the General Court has ruled on the application for annulment of the contested decision;

–        order the ECB to pay the costs.

10      By order of 29 August 2017, the Vice-President of the General Court granted the suspension of operation until such time as the order terminating the proceedings for interim measures is made.

11      On 6 September 2017, the ECB submitted its observations on the application for interim measures, in which it contends that the Vice-President of the General Court should:

–        dismiss the application for interim measures as inadmissible or unfounded;

–        order the applicant to pay the costs.

 Law

12      In accordance with Articles 278 and 279 TFEU read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that operation of an act challenged before the General Court be suspended or prescribe any necessary interim measures, provided that the rules laid down in Article 156 of the Rules of Procedure are observed. Nevertheless, Article 278 TFEU establishes the principle that actions are not to have suspensory effect. It is therefore only exceptionally that the judge hearing an application for interim measures may order suspension of the operation of an act challenged before the General Court or prescribe interim measures (see order of 15 June 2015, Close and Cegelec v Parliament, T‑259/15 R, EU:T:2015:378, paragraph12 (not published) and the case-law cited).

13      Moreover, Article 156(4) of the Rules of Procedure provides that applications for interim measures must state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for. Thus, the judge hearing an application for interim relief may order the suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is not satisfied (order of 14 October 1996, SCK and FNK v Commission, C‑268/96 P(R), EU:C:1996:381, paragraph 30).

14      In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (orders of 19 July 1995, Commission v Atlantic Container Line and Others, C‑149/95 P(R), EU:C:1995:257, paragraph 23, and of 3 April 2007, Vischim v Commission, Case C‑459/06 P(R), not published, EU:C:2007:209, paragraph 25).

15      Having regard to the material in the file, the Vice-President considers that he has all the material necessary to rule on the present application for interim measures without there being any need first to hear oral arguments from the parties.

16      In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.

17      It should be noted in that regard that, in public procurement matters, the condition relating to urgency is eased in certain circumstances.

18      In those matters, the requirement that the likelihood of irreparable harm be shown can, as a general rule, be satisfied by an unsuccessful tenderer only with extreme difficulty. Requiring such a tenderer to establish that the dismissal of its application for interim measures would be likely to cause it irreparable harm would limit, excessively and unjustifiably, the tenderer’s right to an effective judicial remedy under Article 47 of the Charter of Fundamental Rights of the European Union. The tenderer is, however, subject to the condition of showing that there is a particularly strong prima facie case (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 41).

19      Nevertheless, that easing of the conditions applicable in the assessment of whether there is urgency, which is justified by the right to an effective judicial remedy and which applies, as a rule, only during the pre-contractual phase (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraphs 34 and 42), does not exempt an applicant from establishing the seriousness of the harm that would be caused by dismissal of its application for interim measures.

20      It must be borne in mind that the easing of the conditions that apply for assessing whether there is urgency in the case of public procurement arises because the requirement to demonstrate the likelihood of irreparable harm makes it practically impossible for an unsuccessful tenderer to obtain a suspension of the operation of a contract award decision, given that the harm that it is likely to suffer, being financial in nature, is not irreparable (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 30). It has therefore been held necessary –– in order to comply with the requirements of effective interim protection, which has to be guaranteed in the area of public procurement –– to allow the unsuccessful tenderer to establish urgency other than by demonstrating, in all circumstances, an imminent risk of irreparable harm. In such a case and provided that there is a sufficiently strong prima facie case, proof of the seriousness of the harm which would be caused if operation of the contested decision is not suspended may be considered to suffice, on its own, to fulfil the condition relating to urgency (order of 24 March 2015, Europower v Commission, T‑383/14 R, EU:T:2015:190, paragraph 61).

21      The point should also be made that the loss of an opportunity to be awarded and to perform a public contract is inherent in exclusion from the tendering procedure in question and cannot be regarded as constituting in itself serious harm, independently of an actual assessment of the seriousness of the specific damage alleged in each case considered. Therefore, the applicant’s loss of an opportunity to be awarded and to perform the contract will constitute serious harm only if the applicant has established to the requisite legal standard that it would have been able to derive sufficiently significant benefits from the award and performance of that contract in the context of the tendering procedure (see, to that effect, order of 20 September 2005, Deloitte Business Advisory v Commission, T‑195/05 R, EU:T:2005:330, paragraphs 150 and 151).

22      In the light of the foregoing considerations, it is necessary to consider first of all whether the applicant has established that it would sustain serious harm in the event of the operation of the contested decision not being suspended.

23      It must be noted that, in support of the application for interim measures, the applicant puts forward, in essence, two elements which, in its submission, establish the existence of serious harm. First, it invokes a loss of expertise, arguing that the loss of the contract at issue is decisive in a sector such as that for the provision of software solutions to major central banks, in which technical progress and the evolution of the respective products are of crucial importance. Secondly, it invokes a loss of reputation which, in its submission, will be likely to have particularly negative consequences in the specific context of that sector.

24      In support of the arguments put forward concerning loss of expertise and the negative impact on its reputation, the applicant produces a statement made by one of its managers, explaining that, for the purposes of the current contract with the ECB, the applicant has dedicated considerable resources to providing the ECB’s treasury management system and that loss of the contract at issue would entail redeployment costs. The applicant further submits that the ECB represents approximately 10% of its revenue from European central banks and that loss of the contract at issue could therefore jeopardise its business with those banks.

25      In the first place, concerning the loss of expertise, it must be noted that the applicant claims that there is a specific market for the provision of software systems to major central banks but does not, however, give additional information to substantiate that claim. The applicant neither maintains nor establishes that its product concerns solely software systems or treasury management systems used by central banks and that the product would not be capable of being used in other sectors. In that regard, it should be observed that, according to the statement mentioned in paragraph 24 above, the applicant’s commercial division responsible for treasury management systems also supplies governmental bodies and large corporations.

26      Furthermore, even if the provision of software systems to central banks does represent a segment or market that is relevant in itself, the contract with the ECB appears to be of relative importance for the maintenance of the applicant’s know-how and expertise, given that that contract accounts for only 10% of the revenue which the applicant states that it derives from European central banks. It should be observed in this regard that the applicant neither maintains nor establishes that the contract has a particular technological interest which renders it unique or crucial by comparison with contracts concluded with other European central banks.

27      In the second place, so far as the loss of reputation is concerned, it must be recalled that the rejection of a tenderer, where the rules governing the tendering procedure have been followed, is, in itself, neither prejudicial nor discreditable. Winning and losing tenders is among the incidents of business life.

28      It should be added that, even if the loss of reputation were sufficient to establish the existence of serious damage (see order of 20 May 2017, Enrico Colombo and Corinti Giacomo v Commission, T‑690/16 R, not published, EU:T:2017:370, paragraph 55 and the case-law cited), the applicant, according to the statement referred to in paragraph 24 above, provides treasury management solutions to other central banks, including outside Europe, to governmental bodies and large corporations. It is therefore unlikely that the contract at issue is the only prestigious contract on which the applicant could rely to support its commercial reputation. The possibility, mentioned in that statement, that other European central banks might reconsider their choice of provider because the ECB has changed its system is also speculative inasmuch as there is no indication that all the European central banks must use the same software solutions.

29      The applicant has thus not put forward any factors from which it may be concluded that the loss of the contract at issue would affect its expertise or its reputation in such a way that it would no longer be in a position to provide software systems on the same scale or to participate in any tendering procedures that may be launched by other central banks or by other large governmental or commercial organisations.

30      It must be found that the damage, if proved, is not in any event supported by any specific factor giving grounds for a finding that there is serious harm.

31      It follows from all the foregoing that the application for interim measures must be dismissed for lack of urgency and there is no need to consider whether the other conditions for granting the interim measures requested are met in the present case.

32      In accordance with Article 158(5) of the Rules of Procedure, the costs should be reserved.

On those grounds,

THE VICE-PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      The order of 29 August 2017 made in Case T‑579/17 R is cancelled.

3.      The costs are reserved.

Luxembourg, 26 September 2017.

E. Coulon M. van der Woude

RegistrarVice-President

*      Language of the case: English.

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