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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

22 December 2021 (*)

(Interim relief – Public supply contracts – Legal, socio-economic and technical assistance in the fields of energy and mobility and transport – Application for interim measures – No urgency)

In Case T‑665/21 R,

Civitta Eesti AS, established in Tartu (Estonia), represented by C. Ginter, lawyer,

applicant,

v

European Commission, represented by L. André and S. Romoli, acting as Agents,

defendant,

APPLICATION under Articles 278 TFEU and 279 TFEU to suspend the operation of the decision of the Commission of 12 October 2021 rejecting the applicant’s tender for Lot 5 of tendering procedure MOVE/2020/OP/0008, suspend the signature of the contracts to be concluded between the Commission and the other tenderers for Lot 5 of that procedure and, where appropriate, suspend the operation of those contracts,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute, procedure and forms of order sought

1        The applicant, Civitta Eesti AS, is a company incorporated under Estonian law which provides management consulting and data analysis services in central and eastern Europe.

2        On 23 December 2020, the European Commission launched call for tenders MOVE/2020/OP/0008 for the provision of legal, socio-economic and technical assistance in the fields of energy and mobility and transport.

3        Lot 5 of the call for tenders, which is divided into six lots, relates specifically to the provision of socio-economic assistance services in the fields of mobility and transport. The maximum total value of the contract for Lot 5 is EUR 6 million.

4        On 22 February 2021, the applicant submitted a tender for Lot 5, within the deadline set for the submission of tenders.

5        By letter of 12 October 2021, the Commission informed the applicant, first, that its tender had not been successful on the ground that it did not contain a technical offer allowing the contracting authority to assess the quality of the tender and, second, that the standstill period of 10 days started to run from that date (‘the contested decision’).

6        By letter of 13 October 2021, the applicant asked the Commission to reconsider its decision on the ground that it had in fact included the technical offer in its tender.

7        On 14 October 2021, the applicant sent the Commission a request for additional information in order to clarify the status of the procurement procedure.

8        By application lodged at the Court Registry on 18 October 2021, the applicant brought an action seeking, inter alia, annulment of the contested decision.

9        By separate document, lodged at the Court Registry on the same day, the applicant brought the present application for interim measures, in which it requests the President of the General Court to:

–        order the suspension of operation of the contested decision;

–        order the suspension of the signature of the contracts to be concluded between the Commission and the other tenderers for Lot 5;

–        where appropriate, order the suspension of operation of those contracts until the Court has ruled definitively on the main action;

–        order the Commission to pay the costs.

10      By order of 22 October 2021, Civitta Eesti v Commission (T‑665/21 R, not published), adopted pursuant to Article 157(2) of the Rules of Procedure of the General Court, the President of the General Court ordered the suspension of operation of the decision under appeal pending the adoption of the order terminating the present interim proceedings.

11      On 29 October 2021, the Commission adopted a decision suspending the process of signing the contracts to be concluded with the other tenderers for Lot 5 of tendering procedure MOVE/2020/OP/0008 until the date of the order terminating the present interim proceedings.

12      In its observations on the application for interim measures, lodged at the Court Registry on 3 November 2021, the Commission contends that the President of the General Court should:

–        reject as unfounded the interim measures requested;

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

 Law

13      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. 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).

14      The first sentence of Article 156(4) of the Rules of Procedure requires applications for interim measures to 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’.

15      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).

16      In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific 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).

17      Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.

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

19      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 avoid a lacuna in the legal protection afforded by the EU Courts. To attain that objective, urgency must generally be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm 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 harm (see, to that effect, 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).

20      As regards, however, public procurement litigation, in order to assess whether or not it is urgent, account must be taken of the particular features of that litigation.

21      It follows from the case-law that, having regard to 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 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 Risks & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 41).

22      That easing of the requirements applicable to assessing the existence of urgency in public procurement matters stems from the fact that the requirement to demonstrate irreparable harm makes it practically impossible for an unsuccessful tenderer to obtain a suspension of the operation of a contract award decision, on the ground that the loss which 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 considered necessary, in order to meet the requirements which follow from the effective provisional protection that must be guaranteed in public procurement matters, 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 as long as there is a sufficiently serious prima facie case, mere proof of the seriousness of the harm that would be caused by failure to suspend the operation of the contested decision may be deemed sufficient to satisfy the condition relating to urgency (see order of 21 April 2017, Post Telecom v EIB, T‑158/17 R, not published, EU:T:2017:281, paragraph 21 and the case-law cited).

23      However, that easing of the requirements applicable to assessing the existence of urgency, justified by the right to an effective judicial remedy, applies only during the pre-contractual phase, provided that the standstill period resulting from Article 175 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’) is respected.

24      In the case at hand, the contested decision was communicated to the applicant on 12 October 2021 and the application for interim measures was lodged on 18 October 2021, meaning that the applicant brought its application for interim measures before the expiry of the standstill period laid down in Article 175(3) of the Financial Regulation and point 35.1 of Annex I to that regulation, that is to say, during the pre-contractual phase.

25      Consequently, if the applicant were able to demonstrate that there is a particularly serious prima facie case, mere proof of the seriousness of the harm that would be caused by failure to suspend the operation of the contested decision could be deemed sufficient to satisfy the condition relating to urgency, in accordance with the case-law cited in paragraph 21 above.

26      It must therefore be examined whether the applicant has established that the operation of the contested decision would cause it serious harm.

27      In order to demonstrate the seriousness of its harm, the applicant submits that that must be assessed inter alia in the light of the size of its undertaking. To that end, it submits that, according to its 2020 annual report, its revenue for that year amounted to EUR 4 908 614.00. Consequently, the loss of the contract of a value of EUR 6 million is a considerable loss for the applicant, as the turnover achieved through that contract alone would exceed its annual revenue.

28      The Commission, for its part, contends that the applicant has not succeeded in establishing the seriousness of the harm.

29      In that regard, it should be noted at the outset that the applicant merely refers, in general terms, to harm of a financial nature, which consists, in essence, of a loss of earnings which it estimates at EUR 6 million.

30      It indicates that the loss of the contract of a value of EUR 6 million is a considerable loss for it, as the turnover achieved through that contract alone would exceed its annual revenue.

31      In that regard, first, it should be pointed out that, according to the contract notice, the estimated value of the contract, which is EUR 6 million over a 48-month period, thus corresponds to approximately EUR 1 500 000.00 per year.

32      Second, as the Commission has observed in its written pleadings, according to the financial offer submitted by the applicant, its price for the whole duration of the contract is EUR 1 474 875.00, namely a maximum of EUR 368 718.75 per year should the applicant ultimately conclude a specific contract for all the requests of services launched by the contracting authority via the reopening of competition. That EUR 368 718.75, however, amounts to only 7.5% of the applicant’s annual turnover, and the applicant does not provide any evidence from which it might be concluded that that sum is essential or important for ensuring the continuity of its undertaking.

33      Furthermore, it must be noted that, according to the case-law, the adverse financial consequences which an unsuccessful tenderer would suffer as a result of the rejection of its tender have, generally, to be considered to be part of the normal commercial risk which each undertaking active in the market must face. Accordingly, the mere fact that the rejection of a tender may have adverse, even serious, financial consequences for the unsuccessful tenderer cannot therefore justify, in itself, the interim measures sought by the latter (see order of 3 July 2017, Proximus v Council, T‑117/17 R, EU:T:2017:600, paragraph 40 and the case-law cited).

34      In those circumstances, it must be concluded that the serious nature of the harm alleged by the applicant has not been established.

35      It follows from all of the foregoing that the application for interim measures must be dismissed, as the applicant has failed to establish urgency, without it being necessary to rule on the prima facie case or to weigh up the interests.

36      By virtue of 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 measures is dismissed.

2.      The order of 22 October 2021, Civitta Eesti v Commission (T‑665/21 R), is revoked.

3.      The costs are reserved.

Luxembourg, 22 December 2021.

*      Language of the case: English.

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