Information;Order — ECLI:EU:T:2024:276
Date: 2024-04-25
Language of the case: English
Court formation: President of the Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: Estonia

summary of the pleas in law and arguments relied on. 25 It is apparent from the case-law that an application for interim measures must be sufficiently clear and specific in itself to enable the defendant to prepare its observations and the judge hearing the application to give a ruling, where necessary, without other supporting information, the essential elements of fact and law on which it is founded being set out in a coherent and comprehensible fashion in the actual application for interim measures (orders of 30 April 2010, Ziegler v Commission, C‑113/09 P(R), not published, EU:C:2010:242, paragraph 13, and of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 39). 26 Moreover, taking into account the expedition which naturally characterises proceedings for interim relief, it is a reasonable requirement to make of the party seeking the interim measures that, save in exceptional cases, he, she or it submit at the time when the application is made all the evidence available in support of that application, so that the judge hearing the application can assess, on that basis, whether the application is well founded (order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 56 and the case-law cited). 27 An application for interim measures that fails to set out the facts and evidence which should be included in the application as essential elements of the conditions for the grant of the interim measures sought and which, moreover, could be set out in that application does not meet those requirements, since the applicant was not unable to rely on them when that application was made (see, to that effect, order of 11 November 2011, Nencini v Parliament, C‑530/10 P(R), not published, EU:C:2011:729, paragraph 31). 28 It must be held that, since the claims made by the applicant in the context of the present plea are extremely laconic and unsupported by any evidence, the Commission is not in a position to prepare its defence and the Court is not in a position to exercise its power of review. Accordingly, the arguments put forward by the applicant in the context of the present plea must be rejected as inadmissible in the light of Article 76(d) of the Rules of Procedure. The second plea in law 29 The applicant submits that, by rejecting its tender, the Commission infringed, in three ways, Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’). 30 First, it maintains that the Commission infringed the duty of care by failing to carry out the necessary checks in respect of its tender and by concluding that that tender did not comply with the terms of reference. The applicant argues that it submitted all the necessary information on Key Expert No 2, in accordance with those terms of reference. 31 Secondly, the applicant submits that the Commission failed to comply with the obligation to state reasons by not providing an adequate rationale for the contested decision. It maintains that the additional explanations provided by the Commission subsequently, during the 10-day standstill period, cannot be taken into account in order to determine whether it complied with that obligation. Therefore, it argues, the mere finding that Key Expert No 2 did not meet the minimum requirements set by the terms of reference is not sufficient to provide a statement of reasons for the contested decision, given that at least seven requirements are listed in those terms of reference. According to the applicant, the contested decision is also unclear and does not allow the Court to determine whether it is proportionate. 32 Thirdly, the applicant submits that the Commission infringed its right to be heard since it was deprived of the opportunity to make its views known before the rejection of its tender. The applicant adds, in that regard, that it is unusual for the Commission not to put clarificatory questions to the tenderer. 33 The Commission disputes the applicant’s arguments. 34 In the first place, as regards the alleged infringement of the duty of care, the applicant does not put forward any argument or evidence making it possible to verify the claim that it provided the Commission with all the necessary information concerning the ability of Key Expert No 2. It is therefore not clear what the Commission should have examined in order to comply with the duty of care relied on by the applicant. It follows that the argument alleging infringement of that duty must be rejected as inadmissible, in accordance with Article 76(d) of the Rules of Procedure and the case-law cited in paragraphs 25 to 27 above. 35 In the second place, as regards the alleged infringement of the obligation to state reasons, it should be noted that, under Article 170(2) of Regulation 2018/1046, the contracting authority is to notify all tenderers, whose tenders are rejected, of the grounds on which the decision was taken. 36 The statement of reasons required by Article 296 TFEU must show clearly and unequivocally the reasoning of the author of the contested measure, so as to enable the persons concerned to ascertain the reasons for it in order to defend their rights and to enable the Courts of the European Union to exercise their power of review (see judgment of 23 September 2009, Poland v Commission, T‑183/07, EU:T:2009:350, paragraph 136 and the case-law cited). 37 It should be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (judgment of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 73). 38 Moreover, it is clear from the case-law that, if the institution concerned sends a letter in response to a request seeking additional explanations concerning a decision before an action is brought, that letter may also be taken into account when the Court considers whether the statement of reasons in the case in question was adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time when proceedings were brought, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (judgment of 14 January 2015, Veloss International and Attimedia v Parliament, T‑667/11, not published, EU:T:2015:5, paragraph 56). 39 In the present case, in the light of the case-law cited in paragraph 38 above, the answer to the question whether the Commission met the requirements of the obligation to state reasons must, prima facie, be examined by taking into account both the contested decision and the Commission’s letter of 20 February 2024, which was sent to the applicant in response to its request for detailed explanations relating to the rejection of its tender. 40 In that regard, the applicant does not put forward any argument or evidence making it possible to understand in what respects the Commission should have provided it with a more detailed statement of reasons than the one set out in the contested decision and in the letter of 20 February 2024. 41 It must be held that, by the contested decision, the applicant was informed that its tender did not comply with the minimum requirements specified in the procurement documents, on the ground that Key Expert No 2 did not meet the minimum requirements set by the terms of reference. The Commission’s letter of 20 February 2024 states that that key expert did not satisfy the condition of a minimum of 10 years as a public official and/or advisor and/or consultant in policy planning and coordination at State level. It also identifies the 11 references fulfilling the criteria, excluding reference No 2 and stating that, with respect to reference No 9, a total of 193 days out of the 1 100 days proposed had been counted during which the candidate had performed the duties of a political adviser. 42 It follows that the Commission thus appears to have communicated to the applicant the grounds on which its tender was rejected, namely the fact that Key Expert No 2 did not reach the relevant threshold of professional experience set by the terms of reference, by identifying, among the 12 references, the two which did not fulfil, in whole or in part, the relevant criterion. The applicant was therefore able to acquaint itself, in accordance with the requirements of Article 170(2) of Regulation 2018/1046, with the elements of fact and law on the basis of which the contracting authority had rejected its tender. 43 It cannot therefore be concluded, prima facie, that the Commission failed to comply with the obligation to state reasons for the contested decision. 44 In the third place, as regards the alleged infringement of the right to be heard, it is apparent from the case-law that that right, enshrined in Article 41 of the Charter, guarantees every person the opportunity to make known his, her or its views effectively during an administrative procedure and before the adoption of any decision liable to affect that person’s interests adversely (see judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 39 and the case-law cited). 45 In that regard, it is apparent from the case-law that, first, Article 41(2)(a) of the Charter also applies to procurement procedures and, second, tenderers must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. That right is safeguarded at the time when they submit their tenders, and by the fact that tenderers can request clarifications with respect to the provisions of the tender specifications. The fact that no subsequent stage is envisaged in which to provide supplementary explanations, after the tenders have been evaluated, cannot therefore amount to an infringement of Article 41(2)(a) of the Charter (see, to that effect, judgment of 14 June 2023, Instituto Cervantes v Commission, T‑376/21, under appeal, EU:T:2023:331, paragraph 149). 46 Consequently, in the present case, the fact that the Commission did not, following the evaluation of the applicant’s tender and before the notification of the contested decision, place that applicant in a position in which it could make known its views as regards the potential rejection of that tender does not appear, prima facie, to infringe the right to be heard protected by Article 41(2)(a) of the Charter. 47 It must therefore be held that, prima facie, the applicant’s right to be heard was respected. 48 It should be added that the case-law relied on by the applicant in support of its arguments (Opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases SECAP and Santorso, C‑147/06 and C‑148/06, EU:C:2007:711) is not applicable in the present case since those cases concern the specific context of abnormally low tenders and, moreover, is not such as to call into question the conclusion set out in paragraph 46 above. 49 As regards the applicant’s argument that it is unusual for the Commission not to put clarificatory questions to the tenderer, the applicant does not put forward any evidence or rely on any circumstances, such as the presence of an obvious clerical error in the tender or an oversight in the submission of supporting documents, which should have prompted the Commission to ask it for missing information or to clarify the supporting documents. On the contrary, the applicant merely makes a vague and general assertion. 50 Therefore, prima facie, the applicant cannot accuse the Commission of having infringed its right to be heard by, inter alia, not seeking clarifications from it before adopting the contested decision. 51 It follows from the foregoing that the present plea in law is not capable of demonstrating that there is a prima facie case nor, a fortiori, that there is a particularly serious prima facie case within the meaning of the order of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275, paragraph 41). 52 In the light of all of the foregoing, since the applicant has not succeeded in establishing a prima facie case, the present application for interim measures must be dismissed without it being necessary to examine the other conditions referred to in paragraphs 12 and 13 above. 53 Since the present order closes the proceedings for interim relief, the order of 23 February 2024, Corporate & Public Management Consulting International v Commission (T‑106/24 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure, under which the operation of the contested decision was suspended until the date of the order terminating the present proceedings for interim relief, must be cancelled. 54 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 measures is dismissed. 2. The order of 23 February 2024, Corporate & Public Management Consulting International v Commission (T‑106/24 R), is cancelled. 3. The costs are reserved. Luxembourg, 25 April 2024. V. Di Bucci M. van der Woude Registrar President * Language of the case: English.