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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

21 May 2021(*)

(Application for interim relief – Public procurement – Negotiated procedure without prior publication of a contract notice – Application for suspension of operation of a measure – No urgency)

In Case T‑38/21 R,

Inivos Ltd, established in London (United Kingdom),

Inivos BV, established in Rotterdam (Netherlands),

represented by R. Martens and L. Hoet, lawyers,

applicants,

v

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

defendant,

APPLICATION under Articles 278 and 279 TFEU to suspend the operation of ‘Framework contracts for disinfection robots for European hospitals (COVID-19)’ FW-00103506 and FW-00103507, concluded by the Commission on 19 November 2020 with two tenderers

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute, procedure and forms of order sought by the parties

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

2        In the context of the COVID-19 crisis, the European Commission decided to supply disinfection robots to European hospitals.

3        In view of the urgency arising from the COVID-19 crisis, the Commission decided to use the negotiated procedure without prior publication of a contract notice, in accordance with point 11.1(c) of Annex I to Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1; ‘the Financial Regulation’).

4        In order to prepare the procurement procedure and gather information on the market concerned and potential suppliers, the Commission carried out a preliminary market consultation pursuant to Article 166 of the Financial Regulation.

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

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

7        On 30 October 2020 an evaluation report was drawn up, in accordance with Article 168(4) of the Financial Regulation, in order to award the contract.

8        The framework contracts were concluded with two tenderers on 19 November 2020 (‘the contested framework contracts’) 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.

9        On 23 November 2020 the applicants became aware of a Commission press release announcing that it intended to purchase 200 disinfection robots under a dedicated budget from an emergency support instrument.

10      On 3 December 2020, since no contract notice had been published for the award of the contracts in question on the online version of the Supplement to the Official Journal of the European Union concerning European public procurement contracts, and since no information had been published concerning a decision by the Commission to award the contracts at issue, the applicants sent the Commission a letter expressing the concern that the applicable public procurement rules based on the Financial Regulation had not been followed and requesting it to relaunch the public procurement procedure by means of a call for tenders with prior publication of a contract notice.

11      On 9 December 2020 the applicants became aware, through contract award notice 2020/S 240-592299, that the ‘Framework contract for disinfection robots for European hospitals (COVID-19)’ had already been concluded on 19 November 2020.

12      By application lodged at the Registry of the General Court on 19 January 2021, the applicants 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 contested framework contracts.

13      By separate document lodged at the Court Registry on 28 January 2021, the applicants brought the present application for interim relief, in which they claim, in essence, that the President of the General Court should:

–        suspend the operation of the contested framework contracts;

–        reserve the costs.

14      In its observations on the application for interim relief, which were lodged at the Court Registry on 16 February 2021, the Commission contends that the President of the General Court should:

–        dismiss the action as being manifestly inadmissible;

–        order the applicants to pay the costs.

15      By way of a measure of organisation of procedure of 23 March 2021, questions were put to the Commission to be answered in writing, to which it replied within the prescribed time limit.

 Law

16      It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

17      The first sentence of 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’.

18      Accordingly, the judge hearing an application for interim relief may order 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, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

19      In the context of that overall examination, the judge hearing the application for interim measures has a wide discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various 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 (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

20      Having regard to the material in the case file, the President of the General Court is of the view that he has all the information needed to give a ruling on the present application for interim relief, there being no need to first hear oral argument from the parties.

21      In the circumstances of the present case, and there being no need to give a ruling on the plea of inadmissibility raised by the Commission, it is appropriate to examine first of all whether the condition relating to urgency is satisfied.

22      In order to determine whether the interim measures sought are urgent, it should be noted that 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 EU Courts (order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27).

23      To attain that objective, urgency must, as a general rule, be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).

24      In addition, according to well-established case-law, there is urgency only if the serious and irreparable damage feared by the party seeking the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such damage is likely, it being clear that purely hypothetical damage, based on future and uncertain events, cannot justify the granting of interim measures (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 24 and the case-law cited).

25      It is also settled case-law that, in order to determine whether all the conditions referred to in paragraph 18 above are fulfilled, the judge hearing the application for interim measures must have concrete and precise indications, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 27 and the case-law cited).

26      It is in the light of those criteria that the examination of whether the applicants have managed to demonstrate urgency is to take place.

27      In the present case, the applicants maintain, in the first place, that it was not possible for them to pursue legal remedies before the framework contracts were concluded due to (i) the particular features of the negotiated procedure without prior publication of a contract notice and (ii) the particular circumstances of the case, namely the fact that the framework contracts had already been concluded on 19 November 2020 and before the publication, on 9 December 2020, of award notice 2020/S 240-592299. The fact that, because of the particular features of the procurement procedure in question, there was no standstill period under Article 175 of the Financial Regulation, cannot, in the applicants’ view, prejudice an applicant’s right to an effective judicial remedy. The applicants submit that the requirements applicable to assessment of the existence of urgency in public procurement litigation ought also to be eased in the present case. In the second place, the applicants claim, in the present case, that serious infringements concerning certain aspects of that procurement procedure were, prima facie, committed and render the award of the framework contracts to the successful tenderers unlawful. Therefore, in the light of the nature of those unlawful elements, the condition relating to urgency must be regarded as being satisfied on the sole basis of the manifest unlawfulness of the contested measure, in the context of the applicants’ right to an effective remedy.

28      The applicants’ first argument, that the requirements applicable to assessment of the existence of urgency in public procurement litigation must also be eased in the present case, cannot succeed.

29      It is true that, according to the case-law of the Court of Justice, 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 would risk causing it irreparable harm, 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 (order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 41).

30      However, that easing of the requirements applicable to assessment of the existence of urgency, which is 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 the Financial Regulation is respected (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 42), the 10-day standstill period being intended to give the interested parties an opportunity to challenge the award of a contract before the courts before the contract is concluded (order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 37).

31      In the present case, the framework contracts 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 the Financial Regulation. Therefore, the standstill period deriving from Article 175 of the Financial Regulation does not apply, by virtue of point 35.2 (d) of that annex.

32      In addition, as is apparent from the case-law of the Court of Justice applicable to unsuccessful tenderers, 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 (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 38).

33      Those considerations apply, a fortiori, in the present case, in relation to a negotiated procedure without prior publication of a contract notice in which the applicants did not participate.

34      In the second place, as regards the applicants’ argument that the condition relating to urgency must be regarded as being satisfied on the sole basis of the manifest unlawfulness of the contested measure, in the context of the applicants’ right to an effective remedy, it must be recalled, in that regard, 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 contested measure is not precluded, for example where the contested measure lacks even an appearance of legality, and its operation must, for that reason be suspended forthwith (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).

35      However, although, as is apparent from the order of 23 February 2001, Austria v Council (C‑445/00 R, EU:C:2001:123, paragraph 110), the particularly strong nature of the prima facie case is not without influence on the assessment of urgency, there are, however, in accordance with Article 156(4) of the Rules of Procedure, two distinct conditions for obtaining suspension of operation. It is therefore for the applicant 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 (see, to that effect, order of 2 May 2007, IPK International – World Tourism Marketing Consultants v Commission, T‑297/05 R, not published, EU:T:2007:118, paragraph 52 and the case-law cited).

36      Moreover, in the present case, the case file does not reveal, prima facie, that the alleged illegality is manifest.

37      As regards the first of the two pleas in law which the applicants have identified as constituting sufficiently manifest and serious infringements of EU law, deriving from an infringement of Article 160(1) and (2) of the Financial Regulation and from point 11 of Annex I to that regulation, together with a breach of the principle of sound administration, on the ground that the Commission incorrectly used the negotiated procedure without prior publication of a contract notice, it must be stated that, prima facie, the cumulative conditions set out in point 11.1(c) of that annex were satisfied and that the use of that procedure was sufficiently reasoned and justified.

38      In the context of an unprecedented pandemic, characterised by a lack of predictability as to the development of the situation in the territory of the European Union, it was not unreasonable to take the view that the exceptional use of the negotiated procedure without prior publication of the contract notice was necessary and urgent in order rapidly to deploy disinfection robots to assist health professionals in tackling the pandemic.

39      As regards the plea alleging infringement of Article 61, Article 160(1) and Article 167(1) of the Financial Regulation and of the principles of transparency, equality and non-discrimination as general principles of EU law and of Article 41 of the Charter of Fundamental Rights of the European Union, on the ground that the Commission and one of the successful tenderers were in a situation giving rise to a conflict of interest, it must be acknowledged that, prima facie, there is no apparent conflict of interest constituting a flagrant and very serious illegality.

40      As regards the applicants’ argument that the chairman of the board of directors of one of the successful tenderers carried out both that function and the role of assessing and examining proposals in the robotics sector on behalf of the Commission, it must be stated that, as is apparent from the Commission’s reply to the measure of organisation of procedure adopted by the General Court, the chairman of the board of directors of that tenderer did not participate in any way whatsoever in the assessment and examination of the tenders submitted in the context of the procurement procedure which led to the conclusion of the framework contracts in dispute.

41      It follows from all of the foregoing that the application for interim relief must be dismissed, as the applicants have failed to establish urgency, there being no need to rule on the prima facie case or to weigh up the competing interests.

42      Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim relief is dismissed.

2.      The costs are reserved.

Luxembourg, 21 May 2021.

*      Language of the case: English.

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