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

ORDER OF THE VICE-PRESIDENT OF THE COURT

1 December 2021 (*)

(Appeal – Interim relief – Public procurement – Negotiated procedure without prior publication of a contract notice – Application for suspension of operation of a measure – Urgency – Serious and irreparable damage)

In Case C‑471/21 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 31 July 2021,

Inivos Ltd, established in London (United Kingdom),

Inivos BV, established in Rotterdam (Netherlands),

represented by R. Martens, avocat,

appellants,

the other party to the proceedings being:

European Commission, represented by B. Araujo Arce and M. Ilkova, acting as Agents,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

Order

1        By their appeal, Inivos Ltd and Inivos BV ask the Court to set aside the order of the President of the General Court of the European Union of 21 May 2021, Inivos and Inivos v Commission (T‑38/21 R, not published, ‘the order under appeal’, EU:T:2021:287), by which he dismissed their application for suspension of the operation of the ‘Framework contracts for disinfection robots for European hospitals (COVID-19)’ FW-00103506 and FW-00103507, concluded by the European Commission on 19 November 2020 with two tenderers (‘the framework contracts at issue’).

 Legal context

 Directive 89/665/EEC

2        Article 2(7) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 (OJ 2014 L 94, p. 1) (‘Directive 89/665’), provides:

‘Except where provided for in Articles 2d to 2f, the effects of the exercise of the powers referred to in paragraph 1 of this Article on a contract concluded subsequent to its award shall be determined by national law.

Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract …, the powers of the body responsible for review procedures shall be limited to awarding damages to any person harmed by an infringement.’

3        Article 2a(2) of that directive states:

‘A contract may not be concluded following the decision to award a contract … before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

…’

4        Under Article 2b(a) of that directive:

‘Member States may provide that the periods referred to in Article 2a(2) of this Directive do not apply in the following cases:

(a)      if Directive 2014/24/EU [of the European Parliament and the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65)] … does not require prior publication of a contract notice in the Official Journal of the European Union’.

5        Article 2d(1)(a) of Directive 89/665 reads as follows:

‘Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:

(a)      if the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with Directive [2014/24] …’.

 Directive 2014/24

6        Article 32(2)(c) of Directive 2014/24 is worded as follows:

‘The negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service contracts in any of the following cases:

…

(c)      in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with. The circumstances invoked to justify extreme urgency shall not in any event be attributable to the contracting authority.’

 Regulation (EU, Euratom) 2018/1046

7        Article 175(2) and (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) provides:

‘2.      Subject to the exceptions and conditions specified in Annex I to this Regulation, … the contracting authority shall not sign the contract or framework contract with the successful tenderer until a standstill period has elapsed.

3.      The standstill period shall have a duration of 10 days when using electronic means of communication and 15 days when using other means.’

8        Under point 11.1(c) of Annex I to that 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 the following cases:

…

(c)      in so far as is strictly necessary where, for reasons of extreme urgency brought about by unforeseeable events, it is impossible to comply with the time limits laid down in points 24, 26 and 41 and where the justification of such extreme urgency is not attributable to the contracting authority’.

9        Point 35.1 of Annex I to that regulation sets out the rules applicable to the running of the standstill period before signature of the contract or framework contract.

10      Point 35.2(d) of Annex I to the same regulation states:

‘The period set out in point 35.1 shall not apply in the following cases:

…

(d)      negotiated procedure without prior publications referred to in point 11 except for contracts awarded in accordance with point (b) of the second subparagraph of point 11.1.’

 Background to the dispute

11      The background to the dispute is set out in paragraphs 1 to 11 of the order under appeal. It may, for the purposes of the present interlocutory proceedings, be summarised as follows.

12      The appellants, Inivos Ltd and Inivos BV, are companies active in the field of medical technology specialised in the prevention and control of infections.

13      In the context of the COVID-19 health crisis, the Commission decided to supply disinfection robots to European hospitals. In view of the urgency resulting from that crisis situation, the Commission used, on the basis of point 11.1(c) of Annex I to Regulation 2018/1046, the negotiated procedure without prior publication of a contract notice.

14      In order to prepare the public procurement procedure and gather information on the market concerned and potential suppliers, the Commission carried out a preliminary market consultation.

15      Following that consultation, the Commission drew up a database of suppliers, which were then assessed on the basis of predefined criteria.

16      The six suppliers which satisfied those criteria were invited to submit a tender under a negotiated procedure without prior publication.

17      On 30 October 2020 an evaluation report was drawn up, in order to award the contract.

18      The framework contracts at issue were concluded with two tenderers on 19 November 2020 and their signature was announced in the Official Journal of the European Union, on 9 December 2020, by contract award notice 2020/S 240-592299.

 The procedure before the General Court and the order under appeal

19      By application lodged at the Registry of the General Court on 19 January 2021, the appellants brought an action for, inter alia, annulment of the decision to open a negotiated procedure without prior publication of a contract notice and of the decision of 19 November 2020 to conclude the framework contracts at issue.

20      By separate document lodged at the Registry of the General Court on 28 January 2021, the appellants submitted an application for interim measures seeking suspension of the operation of the framework contracts at issue.

21      In the order under appeal, the President of the General Court dismissed that application.

22      In paragraph 21 of the order under appeal, the President of the General Court took the view that it was appropriate to examine whether the condition relating to urgency was satisfied, without there being any need to give a ruling on the plea of inadmissibility raised by the Commission.

23      In that regard, it held, in paragraph 28 of that order, that the appellants’ first argument, that the requirements applicable to the assessment of the existence of urgency in public procurement litigation must be eased in the present case, must be rejected.

24      As regards the appellants’ second argument, that the condition relating to urgency must be regarded as satisfied on the sole basis of the manifest unlawfulness of the decisions at issue, the General Court stated, in paragraph 34 of the order under appeal, that the ability to order the suspension of operation or that interim measures be applied on the sole basis of the manifest unlawfulness of the measure at issue is not precluded, for example where that measure lacks even an appearance of legality.

25      It pointed out, however, in paragraph 35 of that order, that it was for the appellant to demonstrate the imminence of damage which is serious and reparable only with difficulty, if not irreparable, and the mere demonstration of a prima facie case, even a particularly strong one, cannot make up for a complete failure to demonstrate urgency, save in very specific circumstances.

26      The President of the General Court added, in paragraph 36 of the order under appeal, that the case file did not reveal, prima facie, that the alleged illegality is manifest.

27      First, in paragraphs 37 and 38 of that order, he considered that it must be stated that, prima facie, the cumulative conditions set out in point 11.1(c) of Annex I to Regulation 2018/1046 were satisfied in the present case and that the Commission was therefore entitled to use the negotiated procedure without prior publication of a contract notice.

28      Secondly, in paragraphs 39 and 40 of that order, the President of the General Court held that, prima facie, there was no apparent conflict of interest between the Commission and one of the successful tenderers constituting a flagrant and very serious illegality.

 Forms of order sought

29      The appellants claim that the Court should:

–        set aside the order under appeal;

–        suspend, in its entirety, the operation of the framework contracts at issue; or

–        refer the case back to the President of the General Court.

30      The Commission contends that the Court should:

–        dismiss the appeal as inadmissible and, failing that, as unfounded and

–        order the appellants to pay the costs of the proceedings.

 The appeal

31      In support of their appeal, the appellants rely on two grounds of appeal, alleging, first, an inadequate review of the answers provided by the Commission following the adoption of a measure of organisation of procedure and, secondly, an inadequate examination of the condition relating to urgency.

 First ground of appeal, alleging an inadequate review of the answers provided by the Commission following the adoption of a measure of organisation of procedure

 Arguments

32      By their first ground of appeal, the appellants claim that the President of the General Court erred in law by failing adequately to assess and to examine, in paragraphs 39 and 40 of the order under appeal, the answers provided by the Commission following the adoption of a measure of organisation of procedure relating to the possible existence of a conflict of interest.

33      First, the appellants submit that, in so far as those answers of the Commission were relevant for the purposes of rejecting the application for interim measures, the President of the General Court could not, without infringing their rights of defence, implicitly reject their request, by letter of 21 April 2021, for leave to submit observations on those answers.

34      Secondly, the appellants submit that it is apparent from the judgment of 12 March 2015, eVigilo (C‑538/13, EU:C:2015:166), that the mere assertion that the person related to a successful tenderer was not part of the evaluation panel is not sufficient to conclude that there was no conflict of interest. They argue that the President of the General Court wrongly relied on the Commission’s assertions, without reviewing whether that information was accurate, reliable and consistent with the active approach endorsed by the Court of Justice in that judgment in order to detect such conflicts and remedy them.

35      Thirdly, the appellants claim that the President of the General Court infringed his obligation to state reasons.

36      The Commission contends that this ground of appeal is inadmissible.

37      In that regard, it submits that, by that ground of appeal, the appellants question the findings of fact made by the President of the General Court without alleging or demonstrating a distortion of the facts. In addition, referring to the judgment of 12 March 2015, eVigilo (C‑538/13, EU:C:2015:166), the appellants merely reproduce arguments already presented before the President of the General Court and thus seek no more than a re-examination of a plea put forward at first instance.

 Assessment

38      It is appropriate, as a preliminary point, to examine the Commission’s arguments challenging the admissibility of the first ground of appeal.

39      First, it should be recalled that, in accordance with the Court of Justice’s settled case-law, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is limited to points of law. The General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence placed before it. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice on appeal (order of the Vice-President of the Court of 17 December 2020, Anglo Austrian AAB and Belegging-Maatschappij ‘Far-East’ v ECB, C‑207/20 P(R), not published, EU:C:2020:1057, paragraph 84 and the case-law cited).

40      Therefore, in the absence of any allegation of distortion of the facts, the argument put forward by the appellants alleging that the President of the General Court erred in making findings of fact on the basis of the information provided by the Commission without having sufficiently verified the accuracy and reliability of that information must be rejected as inadmissible.

41      By contrast, the arguments alleging infringement of the rights of the defence, an error of law and a failure to state reasons cannot be regarded as seeking to question the findings of the President of the General Court relating to the finding and assessment of the relevant facts. Those arguments must therefore be held to be admissible.

42      Secondly, while it is clear from the settled case-law of the Court of Justice that a ground of appeal which, without containing an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, merely reproduces arguments already presented before the General Court falls outside the jurisdiction of the Court of Justice (see, to that effect, order of the President of the Court of 21 July 1995, Commission v Portugal, C‑93/95, not published, EU:C:1995:258, paragraph 22), it must be found that the arguments put forward in support of the first ground of appeal specifically criticise the errors which, according to the appellants, vitiate the order under appeal.

43      It follows that the first ground of appeal cannot, contrary to the Commission’s contention, be rejected in its entirety as inadmissible.

44      As regards the examination of the substance of that ground of appeal, it is appropriate to examine, in the first place, the claim that the President of the General Court infringed the appellants’ rights of defence by not allowing them to comment on the answers provided by the Commission following the adoption of a measure of organisation of procedure.

45      In that regard, it must be recalled that, in relation to an application for interim measures, it is for the President of the General Court to assess the need to hold a hearing and to hear the parties’ oral submissions. Further, the President of the General Court alone has jurisdiction to assess which measures of organisation of procedure he deems appropriate in order to rule on the application for interim measures. In that regard, the President of the General Court must enjoy a broad discretion (see, to that effect, order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraphs 57 and 59).

46      The mere fact that the information provided by the Commission was considered, in paragraph 40 of the order under appeal, to be of decisive importance for the purposes of ruling on the appellants’ plea alleging the existence of a conflict of interest is not sufficient to show that the President of the General Court, in the present case, exceeded the limits of his discretion.

47      In the light of the speed which, by its nature, characterises interlocutory proceedings, the judge hearing an application for interim measures is not required to hear systematically the party making the application on all the information provided by the other party which that judge intends to take into consideration in order to rule on the application for interim measures.

48      In the second place, it is necessary to examine the argument that the President of the General Court departed from the principles established by the Court of Justice in the judgment of 12 March 2015, eVigilo (C‑538/13, EU:C:2015:166).

49      In paragraph 40 of the order under appeal, the President of the General Court relied exclusively, with a view to examining the appellants’ claim that the procedure which led to the award of the framework contracts at issue was vitiated by a conflict of interest on account of the functions carried out, on behalf of the Commission, by a director of one of the successful tenderers, on the fact that that director had not participated, in any way whatsoever, in the assessment and examination of the tenders submitted in the context of that procedure.

50      In that regard, it is clear from the case-law of the Court of Justice that it would be incompatible with the active role of the contracting authority, with a view to preventing and detecting conflicts of interests and, where appropriate, remedying them, for the applicant to bear the burden of proving, in the context of the appeal proceedings, that the experts appointed by the contracting authority were in fact biased (see, to that effect, judgment of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 43).

51      Thus, if the unsuccessful tenderer presents objective evidence calling into question the impartiality of one of the contracting authority’s experts, it is for that contracting authority to examine all the relevant circumstances that led to the adoption of the decision relating to the award of the contract in order to prevent and detect conflicts of interests and remedy them, including, where appropriate, requesting the parties to provide certain information and evidence (judgment of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 44).

52      That said, it is apparent from paragraph 39 of the order under appeal that the President of the General Court did not consider that the information referred to in paragraph 40 of that order made it possible to rule out the existence of a conflict of interest, but only that that information implied that there was, prima facie, no apparent conflict of interest constituting a flagrant and very serious illegality vitiating the Commission’s decision of 19 November 2020 to conclude the framework contracts at issue.

53      Even though it is true that that information does not necessarily show that the Commission completely fulfilled the active role required by the case-law of the Court of Justice referred to in paragraphs 50 and 51 above, it still cannot be held that the President of the General Court erred in law in holding that, given the lack of direct involvement of the director of one of the successful tenderers in the procedure that led to the award of the framework contracts at issue, the conflict of interest complained of by the appellants could not, in any event, be described as ‘a flagrant and very serious illegality’.

54      That assessment must be regarded as sufficient to justify the rejection of the appellants’ argument that, in order to be granted the interim measures sought, the mere finding that there is a conflict of interest should dispense them from establishing that they suffered serious and irreparable damage.

55      As the President of the General Court pointed out, in essence, in paragraphs 34 and 35 of the order under appeal, only a measure of such manifest illegality as lacking even an appearance of legality implies that the operation of that measure should be suspended without the party concerned having to demonstrate the existence of serious and irreparable damage in the event of its continued operation (see, to that effect, orders of 7 July 1981, IBM v Commission, 60/81 R and 190/81 R, EU:C:1981:165, paragraphs 7 and 8, and of 26 March 1987, Hoechst v Commission, 46/87 R, EU:C:1987:167, paragraphs 31 and 32).

56      As regards, in the third place, the alleged failure to state reasons in the order under appeal, it is clear from the settled case-law of the Court of Justice that the obligation on the General Court to state reasons requires it to disclose in a clear and unequivocal fashion the reasoning it followed, in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and to enable the Court of Justice to exercise its power of review (order of the Vice-President of the Court of 17 December 2020, Anglo Austrian AAB and Belegging-Maatschappij ‘Far-East’ v ECB, C‑114/20 P(R), not published, EU:C:2020:1059, paragraph 86).

57      In the present case, it appears, in the light of the foregoing, that paragraphs 39 and 40 of the order under appeal, read in conjunction with paragraphs 34 and 35 thereof, include sufficient reasoning to satisfy the requirements thus incumbent on the President of the General Court.

58      It follows that the first ground of appeal must be rejected as in part inadmissible and in part unfounded.

 Second ground of appeal, alleging an inadequate examination of the condition relating to urgency

 Arguments

59      By their second ground of appeal, the appellants submit, referring to the case-law of the General Court, that the criteria laid down for the purpose of establishing urgency in public procurement matters differ from those applicable in other areas of EU law. Thus, in the light of the requirements which follow from the effective protection which must be guaranteed in public procurement matters, when an unsuccessful tenderer is able to show that there is a particularly serious prima facie case, it cannot be required to establish that the rejection of its application for interim measures risks causing it irreparable damage.

60      According to the appellants, while that case-law applies in principle only to the pre-contractual phase, such a restriction de facto precludes economic operators from challenging the award of contracts granted under a negotiated procedure without publication of a contract notice, since that procedure does not include a standstill period between the award of a contract and its conclusion. The President of the General Court should therefore, in order to ensure effective judicial protection for the appellants, have tailored his reasoning to the special features of that procedure.

61      The Commission contends that the second ground of appeal should be rejected as inadmissible, in so far as it merely reproduces arguments already presented before the President of the General Court, or, in any event, as unfounded.

 Assessment

62      It is necessary, at the outset, to reject the plea of inadmissibility raised by the Commission, since the second ground of appeal put forward by the appellants contains a criticism of the reasoning adopted by the President of the General Court, in the order under appeal, in order to define the scope of the condition relating to urgency.

63      In the context of that reasoning, in paragraphs 23, 24, 29 and 30 of the order under appeal, the President of the General Court set out, without erring in law, the criteria to be applied, in public procurement matters, to determine whether that condition is satisfied, as set out in the case-law of the Court of Justice.

64      Thus, pursuant to that case-law, the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the Court. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party seeking the interim relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering such damage. While it is true that, in order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence and imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the party seeking interim measures is nevertheless required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the Vice-President of the Court of 16 July 2021, Symrise v ECHA, C‑282/21 P(R), not published, EU:C:2021:631, paragraph 40 and the case-law cited).

65      Nonetheless, having regard to the requirements which follow from the effective protection which must be guaranteed in public procurement matters, the view must be taken that, when an unsuccessful tenderer is able to show that there is a particularly serious prima facie case, it cannot be required to establish that the rejection of its application for interim measures risks causing it irreparable damage, otherwise the effective legal protection which it enjoys pursuant to Article 47 of the Charter of Fundamental Rights of the European Union would be undermined in a manner that is both excessive and unjustified (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).

66      It is apparent, in addition, from the Court’s case-law that that easing of the requirements applicable to the assessment of the existence of urgency, justified by the right to an effective judicial remedy, applies only during the pre-contractual phase, provided that the 10-day standstill period laid down in Article 175(3) of Regulation 2018/1046 is respected (see, by analogy, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 42).

67      As regards specifically the need to tailor those principles to the specific rules applicable to the negotiated procedure without prior publication of a contract notice, the President of the General Court held, in paragraph 32 of the order under appeal, referring to the order of 23 April 2015, Commission v Vanbreda Risk & Benefits, (C‑35/15 P(R), EU:C:2015:275), that the EU Courts do not recognise the existence of a general principle of EU law based on the right to effective legal protection, under which an unsuccessful tenderer must be able to obtain not only damages but also interim measures, without limiting that finding to the period preceding the conclusion of the contract by the adjudicating authority and the successful tenderer.

68      It also held, in paragraph 33 of the order under appeal, that those considerations applied, a fortiori, in relation to a negotiated procedure without prior publication of a contract notice in which the appellants did not participate.

69      In that regard, it must be borne in mind that Directive 89/665 gives specific expression to the general principle of the right to an effective remedy in the particular field of public procurement and that it is therefore necessary to take into consideration, as regards contracts awarded by the European Union itself, the expression of that general principle contained in the provisions of that directive (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 28).

70      In accordance with the right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights, the Court has held, on the basis of the provisions of Directive 89/665, that effective legal protection requires that the interested parties be informed of an award decision a reasonable length of time before the contract is concluded so that they have a real possibility of bringing proceedings and, in particular, of applying for interim measures pending conclusion of the contract (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 29 and the case-law cited).

71      Yet, where they take account of the provisions of a directive laying down a general principle of EU law, the EU Courts cannot disregard the content of those provisions, notwithstanding the fact that they do not apply as such in the case in question. More particularly, to the extent that it is apparent from the provisions of such a directive that the EU legislature sought to establish a balance between the different interests involved, the EU Courts must take account of that balance in their application of the general principle thus laid down (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 31).

72      It is apparent from Article 2(7) of Directive 89/665 that the requirement that the Member States, in their national law, provide for the possibility for a person adversely affected by a decision adopted following a public procurement procedure to seek interim measures is limited to the period between the adoption of that decision and the conclusion of the contract. In order to ensure the effectiveness of actions for the adoption of interim measures, Article 2a(2) of that directive lays down a 10-day standstill period to give the interested parties an opportunity to challenge the award of a contract before the courts before the contract is concluded (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraphs 33 to 37 and the case-law cited).

73      However, Article 2b(a) of Directive 89/665 states that Member States may provide that that standstill period does not apply if Directive 2014/24 does not require prior publication of a contract notice in the Official Journal of the European Union.

74      That is the case, under Article 32(2)(c) of Directive 2014/24, where a contracting authority decides, in accordance with its national law, to use the negotiated procedure without prior publication of a contract notice, in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority and not attributable to it, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with.

75      It thus follows from a combined reading of Article 2b(a) and Article 2(7) of Directive 89/665 that, in such a situation, that directive does not require Member States to ensure that unsuccessful tenderers or other interested parties are given an effective opportunity to apply for interim measures.

76      The EU legislature thus intended to reconcile the interests of unsuccessful tenderers and other interested parties with those of the contracting authority and of the successful tenderer, while taking account of the fundamental principle of legal certainty (see, by analogy, judgments of 11 September 2014, Fastweb, C‑19/13, EU:C:2014:2194, paragraph 63, and of 12 March 2015, eVigilo, C‑538/13, EU:C:2015:166, paragraph 51).

77      The negotiated procedure without prior publication of a contract notice is an exceptional procedure that may be used only in circumstances listed exhaustively by Directive 2014/24 (see, by analogy, judgment of 23 April 2009, Commission v Belgium, C‑292/07, not published, EU:C:2009:246, paragraph 106).

78      Among those circumstances justifying the application of special rules there is extreme urgency. The latter necessarily implies that the public contract concerned must be concluded and executed without delay, which is why compliance with the time limits normally applicable and the possibility for unsuccessful tenderers or other interested parties to obtain suspension of the conclusion or operation of the contract may be disregarded.

79      It is common ground that, as the President of the General Court noted in paragraph 31 of the order under appeal, the framework contracts at issue were awarded on the basis of a negotiated procedure without prior publication of a contract notice, in accordance with point 11.1(c) of Annex I to Regulation 2018/1046, which provides that the contracting authority may use such a procedure, 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.

80      Furthermore, the President of the General Court was fully entitled to hold, in the same paragraph of the order under appeal, that, under point 35.2(d) of Annex I to that regulation, the standstill period deriving from Article 175 of that regulation did not apply to a contract awarded on the basis of such a procedure.

81      It must therefore be found that the applicable provisions of that regulation correspond, in essence, to Article 32(2)(c) of Directive 2014/24 and to Article 2b(a) of Directive 89/665.

82      It follows from the foregoing that the President of the General Court did not err in law in finding that the right to effective judicial protection does not mean that an interested party in the appellants’ situation must be given an effective opportunity to be granted interim relief and, therefore, that the specific features of the procedure under which the framework contracts at issue were concluded cannot mean that easing the requirements applicable to the assessment of the existence of urgency in public procurement matters arising out of the order of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275), applies outside the pre-contractual phase.

83      It should also be noted that, although Article 2d(1)(a) of Directive 89/665 provides that a contract must be declared ineffective if the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with Directive 2014/24, the application of that severe penalty must be confined to the most serious cases of infringement of EU public procurement law (see, to that effect, judgment of 17 June 2021, Simonsen & Weel, C‑23/20, EU:C:2021:490, paragraph 86).

84      Although the application for interim measures submitted at first instance contained claims that the conditions for using the negotiated procedure without prior publication of a contract notice were not satisfied in the present case, those claims were, in any event, rejected in paragraphs 37 and 38 of the order under appeal, which were not disputed in the present appeal.

85      Accordingly, the second ground of appeal must be rejected as unfounded and, consequently, the appeal must be dismissed in its entirety.

 Costs

86      Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

87      Pursuant to Article 138(1) of the Rules of Procedure, which are applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

88      Since the Commission has applied for costs and the appellants have been unsuccessful, the latter must be ordered to bear their own costs and to pay those incurred by the Commission.

On those grounds, the Vice-President of the Court of Justice hereby orders:

1.      The appeal is dismissed.

2.      Inivos Ltd and Inivos BV shall pay the costs.

Luxembourg, 1 December 2021.

*      Language of the case: English.

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