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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

9 August 2023 (*)

(Interim relief – Public supply contracts – Communication and event organisation services – Application for interim measures – No prima facie case)

In Case T‑338/23 R,

Next Media Project, SLU, established in Barcelona (Spain), represented by R. Simar and L. Trefon, lawyers,

applicant,

v

European Fisheries Control Agency (EFCA), represented by S. Steele, acting as Agent, and by B. Wägenbaur, lawyer,

defendant,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

1        By its application based on Articles 278 and 279 TFEU, the applicant, Next Media Project, SLU, seeks, first, a stay of execution of the decision of the European Fisheries Control Agency (EFCA) of 8 June 2023 by which the latter declared the applicant’s tender for Lot 1 of the call for tenders EFCA/2022/OP/0004 ‘Communication Services’ (Lot 1) and ‘Event Organisation Services’ (Lot 2) to be irregular (‘the contested decision’) and, secondly, that the EFCA be ordered not to enter into a framework contract with the successful tenderer.

 Background to the dispute and forms of order sought

2        On 20 December 2022, the EFCA launched the call for tenders under reference EFCA/2022/OP/0004 by open procedure for the provision of ‘Communication Services’ (Lot 1) and ‘Event Organisation Services’ (Lot 2).

3        The call for tenders required tenderers to submit their tenders via the ‘e-Submission’ platform, in particular two electronic samples forming part of their technical tender, namely an animated video file of 10 to 15 seconds, in GIF or MP4 format, and a proposal for an interactive map in HTML format (‘the electronic samples’).

4        On 18 January 2023, following a request for information from one tenderer, the EFCA informed all tenderers by means of a corrigendum not to use the MP4 format for the first electronic sample.

5        On 26 January 2023, the EFCA adopted Corrigendum No 2, by which Article 3(4)(2) of the tender specifications was amended and, accordingly, the tenderers were requested to send the two electronic samples by email to the email address: Procurement-np@efca.europa.eu.

6        On 26 January 2023, in its reply to a question from the applicant, the EFCA explicitly referred to Corrigendum No 2 and reiterated that the two electronic samples had to be provided electronically.

7        On 13 February 2023, the applicant submitted a tender for Lot 1 under that tendering procedure. However, instead of using email, as indicated by the EFCA to transmit the two electronic samples, the applicant decided to send those electronic samples using the ‘Dropbox’ link, a cloud storage service that allows users to save files online and share files and folders with third parties without sending bulky attachments.

8        On 8 June 2023, by the contested decision, the EFCA informed the applicant that, since it had sent the two electronic samples via ‘Dropbox’ rather than by email, its tender did not comply with Article 141(1) 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) nor with the instructions of the call for tenders, as set out in Corrigendum 2. The EFCA added that, since the tender opening committee had only received the electronic samples at the time of the download from ‘Dropbox’, which had taken place during the opening of the tenders, that is to say, after the submission time limit, it could not guarantee the integrity of the original samples or evidence of the date and time of their receipt.

9        By application lodged at the Registry of the General Court on 19 June 2023, the applicant brought an action seeking the annulment of the contested decision.

10      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 President of the General Court should:

–        order that the operation of the contested decision be suspended;

–        order the EFCA, as an interim measure, not to conclude the Framework Agreement or, if it has already been concluded, not to conclude specific contracts based on it until the General Court has ruled on the substance of the case;

–        order any other interim measure deemed appropriate;

–        order the EFCA to pay the costs.

11      In its observations on the application for interim measures, which were lodged at the Court Registry on 4 July 2023, the EFCA contends that the President of the General Court should:

–        dismiss the application for interim measures;

–        reserve the costs.

 Law

 General Considerations

12      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).

13      The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are 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’.

14      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 case 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).

15      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 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).

16      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.

17      In order to assess whether the cumulative conditions necessary for the grant of interim measures are satisfied in the present case, it is appropriate to begin by examining whether the condition relating to the establishment of a prima facie case is satisfied.

 The condition relating to a prima facie case

18      The requirement that a prima facie case must be established is satisfied where there is, at the stage of the interlocutory proceedings, a major legal disagreement whose resolution is not immediately obvious, so that the appeal is not prima facie without reasonable substance. Since the purpose of the interim proceedings is to guarantee that the final decision to be taken is fully effective, in order to avoid a lacuna in the legal protection ensured by the EU Courts, the court hearing the application for interim relief must restrict itself to assessing ‘prima facie’ the merits of the grounds put forward in the main proceedings in order to ascertain whether there is a sufficiently large probability of success of the action (see order of 8 April 2014, Commission v ANKO, C‑78/14 P-R, EU:C:2014:239, paragraph 15 and the case-law cited).

19      In that context, account must also be taken of the particular features of public procurement proceedings.

20      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 demonstrate that there is a particularly serious prima facie case, that unsuccessful tenderer 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 Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 41).

21      However, that easing of the requirements applicable to assessment of 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 resulting from Article 175 of Regulation 2018/1046 is respected. Since the contract was concluded with the successful tenderer after the expiry of that period and before the application for interim measures was lodged, such easing is no longer justified (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraphs 38 and 42).

22      Thus, in the cases referred to in paragraph 21 above, where the unsuccessful tenderer is able to demonstrate the existence of a particularly serious prima facie case, the criteria for assessing the condition relating to urgency must be eased, so that only the risk of serious harm occurring must be demonstrated (see, to that effect, order of 22 November 2022, Telefónica de España v Commission, C‑478/22 P(R), EU:C:2022:914, paragraph 69 and the case-law cited).

23      As regards the condition of a particularly serious prima facie case, it is satisfied where the interim proceedings demonstrate that the defendant has committed an unlawful act which appears, prima facie, to be sufficiently manifest and serious, the production or continuation of the effects of which must, in the interests of the applicant, be prevented as soon as possible (see order of 17 July 2015, GSA and SGI v Parliament, T‑321/15 R, not published, EU:T:2015:522, paragraph 31 and the case-law cited).

24      In the present case, since the contested decision was communicated to the applicant on 8 June 2023 by electronic means of communication, the standstill period, applicable under Article 175(3) of Regulation 2018/1046, was 10 days and was complied with in the present case. In addition, since the EFCA communicated that it had decided to suspend the signing of the contract, it is common ground that the applicant brought its application for interim measures before the conclusion of the contract.

25      In those circumstances, in accordance with the case-law referred to in paragraph 21 above, if the applicant succeeded in demonstrating the existence of a particularly serious prima facie case, the criteria for assessing the condition relating to the urgency at issue would be eased.

26      Consequently, it is necessary to examine whether the applicant is able to demonstrate that there is a prima facie case and, if so, whether that prima facie case is particularly serious.

27      In that regard, in order to demonstrate that the contested decision is, prima facie, vitiated by illegality, the applicant formally relies on a single plea in law in the application for interim measures.

28      The applicant claims that the EFCA, first, infringed points 12.2 and 29.3 of Annex I to Regulation 2018/1046, Article 3(4)(2) of the tender specifications and the duties of diligence and meticulousness and, secondly, committed a manifest error of assessment, on the ground that its tender was not vitiated by an irregularity within the meaning of point 12.2 of Annex I to that regulation.

29      The applicant adds that Article 141(1)(b) of Regulation 2018/1046 is not relevant in the present case since the use of the ‘Dropbox’ link instead of email does not constitute a failure to communicate the information required as a condition for participation in the procurement procedure.

30      In addition, the applicant claims that only failure to submit the technical tender and, consequently, the electronic samples, via ‘e-Submission’ would lead to the exclusion of the tender of the economic operator at issue. However, this does not apply to the sending of samples by email. There is nothing to suggest that the failure to send the electronic samples by email would lead to the tender being disqualified. The choice of the word ‘shall’ rather than ‘must’ in the tender specifications is an additional indication that the EFCA did not intend to classify the transmission of electronic samples by email as a minimum requirement.

31      Lastly, the applicant submits that the fact that it sent its electronic samples via a ‘Dropbox’ link did not have the effect of undermining the integrity of its tender. When the tenders were opened, the EFCA expressly considered that that tender complied with the time limit for receipt and did not pose any problems of integrity, even though the applicant had informed the EFCA that the electronic samples had not been sent by email.

32      The EFCA disputes the applicant’s arguments.

33      In the first place, it should be noted that the tender specifications provide, in Article 3(4)(2), as amended by Corrigendum No 2, that ‘the two electronic samples (4.1 and 4.2) shall be provided electronically via e-mail to Procurement‑np@efca.europa.eu – without a password – and via the documents specified above’.

34      In that context, the use, in the English-language version of the tender specifications, of the word ‘shall’ in Article 3(4)(2), as amended by Corrigendum No 2, seems to indicate that the two electronic samples were required to be provided by email.

35      Thus, prima facie, the method of transmission of the two electronic samples was not optional and, therefore, by uploading the electronic samples via ‘Dropbox’, the applicant does not appear to have complied with the method of transmission of the information necessary to participate in the procedure required by Article 3(4)(2) of the tender specifications, as amended by Corrigendum No 2.

36      Consequently, it appears that, by so doing, the applicant has failed to ‘supply’ the information at issue, within the meaning of Article 141(1)(b) of Regulation 2018/1046. Prima facie, the manner in which a tenderer submits information requested, in this case electronic samples, to the contracting authority, forms an integral part of the manner in which the information is supplied and, consequently, falls within the scope of that provision.

37      In the second place, it should be recalled that submission by email makes it possible to ensure compliance with the principle of equal treatment of tenderers laid down in Article 160(1) of Regulation 2018/1046, in that that means of submission guarantees that the contracting authority retains control over the documents submitted to it (see, by analogy, judgment of 14 June 2023, Instituto Cervantes v Commission, T‑376/21, EU:T:2023:331, paragraph 141).

38      In that regard, it should be added that to accept the applicant’s point of view that the supply of electronic samples by ‘Dropbox’ instead of by email should not have led to its exclusion could constitute an infringement of the principle of equal treatment with regard to the other tenderers who submitted a tender in the procurement procedure at issue. That approach would imply that the applicant, who used the ‘Dropbox’ link, would be treated in the same way as the other tenderers that complied with the tender specifications by using electronic mail (see, by analogy, judgment of 30 April 2014, Euris Consult v Parliament, T‑637/11, EU:T:2014:237, paragraph 109).

39      In the third place, the applicant’s argument that it has serious evidence enabling it to ensure that the electronic samples at issue were not altered after having been sent via the ‘Dropbox’ link is, prima facie, irrelevant. According to the case-law, if the use of a link in a tender is not permitted, the contracting authority is not required to check whether the documents to which that link leads had been altered or to accept them (see, to that effect, judgment of 14 June 2023, Instituto Cervantes v Commission, T‑376/21, EU:T:2023:331, paragraph 143).

40      In the fourth place, it should be stated that, on 26 January 2023, in its reply to a question from the applicant, the EFCA had explicitly referred to Corrigendum No 2 and had reiterated to the applicant that the two electronic samples had to be provided electronically to the address: Procurement-np@efca.europa.eu. Yet, it was only on 13 February 2023, the last day of the time limit for receipt of tenders, that the applicant attempted, despite that corrigendum, to upload a PDF document entitled ‘LavinaNext_electronic_samples.EFCA.pdf’ including the two electronic samples by electronic means on ‘e-Submission’ which led to the applicant receiving the message ‘File type not supported’.

41      In addition, by choosing to transmit the two electronic samples by means of the ‘Dropbox’ link on 13 February 2023, the last day of the time limit for receipt, the applicant presented the EFCA with a fait accompli. Thus, the EFCA did not have the opportunity to rule on the use of that method of transmission before that time limit expired.

42      It was only during the opening of the tenders organised by the EFCA on 14 February 2023 that the applicant informed the EFCA that the two electronic samples had been sent via ‘Dropbox’ and not by email. At that time, the tender opening committee did not make any observations in that regard, since that committee merely verified whether the applicant’s tender had complied with the time limit for receipt and whether its integrity and confidentiality had been preserved. In that context, the indication of the term ‘in order’ concerning the result of the opening of the applicant’s tender indicates that the applicant formally complied with that time limit as such, but cannot be interpreted, prima facie, as a validation of the method of communication of the electronic samples chosen by the applicant. In accordance with Article 168(3) of Regulation 2018/1046, when opening the tender, the contracting authority is required only to verify whether the tender at issue has been sent within the time limit for receipt and has not already been opened.

43      Accordingly, the present plea is not, prima facie, such as to demonstrate the existence of a prima facie case.

44      In the light of all of the foregoing, since the applicant has not succeeded in establishing a prima facie case and a fortiori a particularly serious prima facie case, the present application for interim measures must therefore be rejected without it being necessary to examine the other conditions referred to in paragraphs 13 and 14 above.

45      Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is rejected.

2.      The costs are reserved.

Luxembourg, 9 August 2023.

*      Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.