Order — ECLI:EU:C:2018:208
Date: 2018-03-22
Language of the case: English
Court formation: Vice-President
Subject matter: Public procurement in the European Union;Procedural provisions
Procedure: Action for annulment;Appeal;Application for interim measures
Origin: United Kingdom

Provisional text ORDER OF THE VICE-PRESIDENT OF THE COURT 4 October 2017 (*) (Interim measures — Articles 278 and 279 TFEU — Appeal — Public procurement — Article 160(7) of the Rules of Procedure of the Court of Justice) In Case C‑576/17 P(R)-R, APPLICATION for interim measures under Articles 278 and 279 TFEU, made on 29 September 2017, Wall Street Systems UK Ltd, established in London (United Kingdom), represented by A. Csaki, Rechtsanwalt, appellant, the other party to the proceedings being: European Central Bank (ECB), defendant at first instance, THE VICE-PRESIDENT OF THE COURT, after hearing the Advocate General, M. Wathelet, makes the following Order 1 By application lodged at the Court Registry on 29 September 2017, Wall Street Systems UK Ltd requested the Court to set aside the order of the Vice-President of the General Court of the European Union of 26 September 2017, Wall Street Systems UK v ECB (T‑579/17 R, not published, ‘the order under appeal’, EU:T:2017:668), by which the President of the General Court dismissed its application for suspension of operation of the decision of the Procurement Review Body of the European Central Bank (ECB) of 17 August 2017 (‘the decision at issue’) rejecting its appeal against the ECB’s decision, notified to the appellant on 29 June 2017, by which the ECB rejected its tender in the context of tendering procedure 2016/S 093-165651 for the conclusion of a framework agreement concerning the provision of a treasury management system and support services. 2 By a separate document lodged at the Court Registry on 29 September 2017, the appellant submitted the present application for interim measures, by which it claims, in essence, that the Vice-President of the Court should, pursuant to Articles 278 and 279 TFEU and Article 160(7) of the Rules of Procedure of the Court of Justice: – order the ECB to refrain from entering into the framework agreement with OpenLink LLC, the successful tenderer in the call for tenders, pending a final decision of the Court of Justice on the appeal against the order under appeal; – make any necessary orders for the protection of the rights of the appellant until the final decision on its main action against the decision at issue; – arrange a hearing; and – order the ECB to pay the costs of the proceedings for interim measures. 3 Under Article 160(7) of the Rules of Procedure of the Court of Justice, the judge hearing an application for interim measures may grant the application for interim measures even before the observations of the opposite party have been submitted, and that decision may be varied or cancelled even without any application being made by any party. 4 According to the case-law of the Court, in particular where it is desirable in the interests of the proper administration of justice that the interlocutory proceedings are not deprived of their substance and their effect, Article 160(7) of the Rules of Procedure of the Court of Justice permits the judge hearing an application for interim measures to adopt such measures, as a precautionary measure, until either an order has been made terminating these interlocutory proceedings (order of the President of the Court of 18 September 1986, Group of the European Right and National Front v Parliament, 221/86 R, EU:C:1986:327, paragraph 9), or until the main proceedings are terminated, if this should take place first (order of the Vice-President of the Court of 11 March 2016, Chemtura Netherlands v EFSA, C‑134/16 P(R)-R, not published, EU:C:2016:164, paragraph 4). 5 When assessing the need for such an order, the judge hearing the application for interim relief must examine the circumstances of the specific case at hand (see, to that effect, order of 3 July 1984, de Compte v Parliament, 141/84 R, EU:C:1984:237, paragraph 7; order of the President of the Court of 25 August 1986, Greece v Commission, 214/86 R, EU:C:1986:319, paragraph 9; and order of the Vice-President of the Court of 11 March 2016, Chemtura Netherlands v EFSA, C‑134/16 P(R)-R, not published, EU:C:2016:164, paragraph 5). 6 In the present case, it is apparent from the material in the file that, following the decision of the ECB to reject the appellant’s tender in the tendering procedure concerned, the appellant lodged an appeal against that decision with the ECB’s Procurement Review Body, an appeal which was rejected by the decision at issue. The appellant states that, having informed the ECB, as early as 18 August 2017, of its intention to challenge that decision before the General Court, it was informed by the ECB on 21 August 2017 that, in view of that possibility, the ECB would wait for a period of 10 days before entering into the framework agreement with OpenLink. 7 On 28 August 2017, the appellant lodged an action for annulment and an application for interim measures in respect of the decision at issue. Having ordered the suspension of operation of that decision by order of 29 August 2017, Wall Street Systems v ECB (T‑579/17 R, not published), made under Article 157(2) of the Rules of Procedure of the General Court, the Vice-President of the General Court ultimately dismissed that application for interim measures by the order under appeal. 8 According to the appellant, it is appropriate, in the context of the appeal brought against the order under appeal, for the Court to order the ECB to refrain from entering into the framework agreement with OpenLink, so that the appellant is not caused any serious and irreparable harm. 9 Were the framework agreement to be concluded with OpenLink before the Court had determined that appeal, the appellant would, it claims, suffer a loss of expertise. Technical progress and the evolution of products are crucial in the market in question, and therefore such a loss, even for a short period, would cause irreparable and unquantifiable damage to the appellant. In addition, the conclusion of that framework agreement would also affect the appellant’s reputation, with considerable negative consequences. 10 Furthermore, again according to the appellant, the General Court made a number of errors of law in the order under appeal, in so far as, in particular, it erred in its application of the criterion of urgency in disputes relating to public procurement. It also failed to take into consideration the prima facie case, to hold a hearing and to weigh the opposing interests. 11 In view of the grave and irreparable harm that could arise from the conclusion of the framework agreement at issue with OpenLink, the Vice-President of the Court of Justice considers, even before the observations of the opposite party have been submitted, that it is in the interests of the proper administration of justice that the ECB be ordered to refrain from entering into that framework agreement until an order has been made closing the present proceedings for interim measures or determining the appeal in Case C‑576/17 P(R), whichever is the earlier. On those grounds, the Vice-President of the Court hereby orders: 1. The European Central Bank shall refrain from entering into the framework agreement for the provision of a treasury management system and support services, which was the subject of tendering procedure 2016/S 093-165651, with OpenLink LLC until an order has been made closing the present proceedings for interim measures or determining the appeal in Case C‑576/17 P(R), whichever is the earlier. 2. Costs are reserved. Done at Luxembourg, 4 October 2017. A. Calot Escobar A. Tizzano Registrar Vice-President * Language of the case: English.