ORDER OF THE PRESIDENT OF THE GENERAL COURT
13 March 2020 (*)
(Application for interim relief — Public supply contracts — Application for interim measures — No urgency)
In Case T‑20/20 R,
Intertranslations (Intertransleïsions) Metafraseis AE, established in Kallithea (Greece), represented by N. Korogiannakis, lawyer,
applicant,
v
European Parliament, represented by S. Toliušis and E. Taneva, acting as Agents,
defendant,
APPLICATION pursuant to Articles 278 and 279 TFEU for the grant of interim measures, seeking, first, suspension of the operation of the decisions of the European Parliament of 4 December 2019 to rank the applicant’s tender second in the cascade in lot 5 of the call for tenders for the provision of translation services into English, in connection with the call for tenders TRA/EU19/2019, and to award the first contract resulting from this call for tenders to another tenderer, secondly, suspension of the contract concluded with that other tenderer and, thirdly, an order that the Parliament communicate to the applicant the missing sections of the statement of reasons of the evaluation committee,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and forms of order sought by the parties
1        On 18 March 2019, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2019/S 054-123613), the European Parliament launched the open procedure TRA/EU19/2019 to conclude framework contracts for the provision of translation services into Bulgarian (lot 1), Czech (lot 2), Danish (lot 3), Dutch (lot 4), English (lot 5), Estonian (lot 6), Finnish (lot 7), French (lot 8), Greek (lot 9), Hungarian (lot 10), Irish (lot 11), Italian (lot 12), Latvian (lot 13), Lithuanian (lot 14), Maltese (lot 15), Portuguese (lot 16), Slovak (lot 17), Slovenian (lot 18) and Swedish (lot 19).
2        The applicant, the company Intertranslations (Intertransleïsions) Metafraseis AE, to which the Parliament awarded, in 2015, the main framework contract No EN02/2016/MAIN for translation into English, submitted a tender for all lots with the exception of lots 11 and 15.
3        By letter of 28 October 2019, communicated to the applicant by e-mail of the following 29 October, the Director-General of the Directorate-General (DG) for Translation of the Parliament informed the applicant of the results of the preliminary award and confirmed that its tender for lots 2, 5, 7, 8, 13, 16 and 17 had been successful. As regards, in particular, the translation into English (lot 5), the applicant was informed that it was ranked second.
4        By e-mail of 31 October 2019, the applicant sent a request for additional information to the Director-General of the Translation DG of the Parliament concerning each of the lots for which it had submitted a tender.
5        By e-mail of 5 November 2019, the applicant received additional information regarding the results of its tender, inter alia for lot 5, including the description of the methodology used for the evaluation of the translation project management test, the detailed results of that test and the annotated test including the error types indicated in the comments including errors allegedly committed by the applicant as well as tables showing the details of the preliminary award.
6        By e-mail of 13 November 2019, the applicant requested the test correction files with track changes in MS Word version for lots 5, 8 and 12.
7        By e-mail of 14 November 2019, the Parliament replied to the applicant that there was no other document available regarding the evaluation of the test.
8        On 4 December 2019, the Parliament, in the context of the call for tenders TRA/EU19/2019, adopted the decisions concerning lot 5 of the contract for the provision of translation services into English, communicated to all tenderers on 5 December 2019, including the decision to rank the applicant’s tender second in a cascade system, that is to say, a system according to which the secondary contractor receives a translation request only in the event that the main contractor is unable to accept that translation request, and that of awarding the first contract of the cascade system resulting from that invitation to tender to the company Inter Alia UK (together, ‘the contested decisions’).
9        By letter dated 5 December 2019, the Parliament communicated to the applicant the decision to award lots 2, 5, 7, 8, 13, 16 and 17. By that decision, Parliament confirmed to the applicant that its tender for lot 5 had been ranked in second place, receiving a score of 93.43 points.
10      On 16 December 2019, the applicant sent a letter to the Parliament, within the 10-day time limit laid down in the award decision, requesting, first, additional information on the reasons for the decision of the evaluation committee for lot 5 and, second, suspension of the procedure for signing the framework contract.
11      In reply to that letter of 16 December 2019, the applicant received, on the following 20 December, an e-mail from the Parliament informing it that the signing of the contract in question had been suspended in order to verify whether the alleged substantive errors actually existed and whether they could affect the award decision.
12      On 2 January 2020, the applicant addressed the Parliament asking it to confirm the accuracy of the publication in the Official Journal of the European Union of 31 December 2019, that the contract for lot 5, among others, had already been signed on 4 December 2019.
13      By letter of 8 January 2020, the Parliament informed the applicant that, following the re-examination of the evaluation committee’s decision, its mark had been revised and now stood at 97.48 points. However, despite that revision, it remained second in the cascade system.
14      By that letter of 8 January 2020, Parliament also confirmed that the publication in the Official Journal of the European Union of 31 December 2019 did not concern the signature of the contract for lot 5.
15      By letter of 8 January 2020, the Parliament finally informed the applicant that it was not required to provide additional information or a grid with the correct translation.
16      By application lodged at the Court Registry on 14 January 2020, the applicant brought an action for annulment of the contested decisions and for compensation for the damage allegedly suffered.
17      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, in essence, that the President of the General Court should:
–        suspend the execution of the contested decisions;
–        suspend the signature of the contracts between the Parliament and all cascade contractors in lot 5;
–        where appropriate, suspend the execution of those contracts;
–        order the Parliament to communicate to the applicant the missing sections of the statement of reasons for the decision of the evaluation committee in respect of lot 5.
18      On 16 January 2020, Parliament signed the contracts for lot 5.
19      In its submissions on the application for interim measures, lodged at the Court Registry on 27 January 2020, the Parliament contends, in essence, that the President of the General Court should:
–        dismiss the application for interim measures;
–        order the applicant to pay the costs.
Law
20      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 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 a judge hearing an application for interim measures may order suspension of the application of an act contested before the General Court or prescribe interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
21      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.’
22      The judge hearing an application for interim measures 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, which means that an application for interim measures must be dismissed if any one of them is not met. 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).
23      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, Case C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
24      Having regard to the documents in the case file, the President of the 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.
25      In the circumstances of the present case, it is appropriate to examine, first, whether the condition relating to urgency is satisfied.
26      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).
27      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 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).
28      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.
29      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).
30      Nevertheless, that easing of the requirements applicable to assessment of 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) is respected. Where the contract has been concluded with the successful tenderer after the expiry of that period and the unsuccessful tenderer had sufficient information to exercise its right to make an application for interim measures within that period, the abovementioned easing is no longer justified (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risks & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraphs 34 and 57).
31      In the present case, the decision to place the applicant’s tender for lot 5 in second position in the cascade system was communicated to the applicant electronically on 5 December 2019, so that, in principle, the 10-day standstill period started on 6 December 2019 and therefore ended on 15 December 2019 at midnight, well before the lodging of the application for interim measures on 14 January 2020 and the signing of the framework contract for lot 5 on the following 16 January.
32      However, in accordance with the case-law, the standstill period can place interested parties in the position of being able to contest in law the award of a contract before the contract is concluded only if those interested parties have sufficient information to ascertain whether the award decision was unlawful in any way (order of 23 April 2015, Commission v Vanbreda Risks & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 47).
33      Having regard to the conditions of the principle of legal certainty, this exception to the purely mechanical application of the standstill period must, however, be limited to exceptional cases in which the unsuccessful tenderer had no reason to believe that the decision awarding the contract was unlawful in the time before the conclusion of the contract with the successful tenderer (order of 23 April 2015, Commission v Vanbreda Risks & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 49).
34      In the present case, since the Parliament provided, on 5 November 2019, and therefore before the communication of the contested decisions on 5 December 2019, the additional information requested by the applicant, in particular concerning lot 5, and confirmed, on the following 14 November, that there was no other document available in that regard, the applicant had, during the standstill period, sufficient information to make effective use of that period for the purposes of bringing an action for annulment together with an application for interim measures.
35      In the light of the foregoing, it must be concluded that the easing of the requirements applicable to assessment of the existence of urgency of public procurement cannot be applied in the present case.
36      It must therefore be examined whether the applicant has established to the requisite legal standard that the operation of the contested decisions would cause it serious and irreparable harm within the meaning of the case-law referred to in paragraph 27 above.
37      In the present case, in the first place, in order to demonstrate urgency, the applicant submits that the loss of the only contract at issue would result in a 6% reduction in its turnover, loss of economies of scale of almost 40% per annum, a loss of EUR 500 000 over five years, loss of the opportunity to make profits and a direct loss of approximately 60% of profits for the next five years.
38      In that regard, it is necessary to bear in mind the settled case-law according to which damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage. Any such damage could be recouped by the applicant’s bringing an action for compensation on the basis of Articles 268 TFEU and 340 TFEU (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 53 and the case-law cited).
39      Furthermore, it must be noted that the adverse financial consequences which the 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).
40      Finally, it is settled case-law that the judge hearing the application for interim measures must have specific and precise information, supported by detailed, certified documentary evidence showing the financial situation of the party seeking interim measures and enabling an assessment of the consequences likely to occur if the measures sought are not granted. It follows that that party, in particular when it relies on the occurrence of financial damage, must in principle produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 10 July 2018, Synergy Hellas
v Commission, T‑244/18 R, not published, EU:T:2018:422, paragraph 27 and the case-law cited).
41      In that regard, it is important to note, first of all, that the applicant acknowledges that ‘the contract in question … represents only just above [6] % of its turnover’.
42      Consequently, it cannot be argued that the contested decisions cause serious harm to the applicant with regard to its turnover.
43      Secondly, as regards the applicant’s allegations concerning the loss of economies of scale of almost 40% and profits of around 60% for the next five years, it must be noted, on the one hand, that these allegations are not substantiated in any way by the applicant. It did not provide sufficiently specific and precise information, supported by detailed, certified documentary evidence, in line with the requirements of the case-law cited in paragraph 40 above, which demonstrate that it cannot wait for the decision in the main proceedings.
44      The applicant merely adds, as an annex to the application for interim measures, its annual accounts for the year 2018, as published in accordance with Greek law, without in any way specifying its calculations or supporting by documentary evidence the financial consequences allegedly suffered in the event of performance of the framework contract relating to lot 5.
45      On the other hand, as the Parliament pointed out, the applicant did not take into account, when invoking the loss of economies of scale and profits which allegedly result from the rejection of its tender, the positive effects on its turnover of the six new contracts it signed with the Parliament in the context of the call for tenders.
46      In the second place, the applicant submits that it will be obliged to dismiss approximately 65 translators and revisers currently working under freelance contracts in order to execute the previous contract with the Parliament. In that connection, it points out that, in such a scenario, it will have to pay redundancy indemnities to its staff and will lose all the investment made to train the translators in question and the whole team working under the contract in question.
47      It is true that, in accordance with the case-law, the fact that an undertaking has to shed jobs and thus lose a trained and operational workforce may cause it direct and personal harm, independently of the separate harm suffered by its employees, to the extent that it will be more difficult subsequently to restart its activities should there be a change in economic conditions (order of 12 June 2014, Commission
v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 52).
48      However, the possible dismissal, invoked as serious harm by the applicant, is not directly related to the contested decisions, but to the framework contract No EN02/2016/MAIN, concluded in 2015 between the Parliament and the applicant for translation into English. However, the applicant was fully aware that that framework contract was due to expire on 31 December 2019 and that there was no possibility of extending it. In addition, the applicant has not shown that it would be more difficult for it to resume its activities subsequently in the event of a change in economic conditions.
49      In the third place, the applicant alleges that, if the contracts are executed, additional damage will be done to its reputation, since the fact that it failed to be awarded such an important contract, which it had already executed, will be made public and will damage its reputation as a top level translation company in the European Union.
50      In that regard, it must be borne in mind that the essential and main elements of the contract concluded following a tendering procedure for the award of a public contract are, on the one hand, performance of the contract by the successful tenderer and, on the other, payment of the contractually agreed sum by the contracting authority. In contrast, considerations relating to the reputation of the selected tenderer and the opportunity for it to use the award of a prestigious public contract as a reference in the context of a future tender or in other competitive contexts relate only to accidental and incidental elements of that contract. If the fact that an unsuccessful tenderer suffers a serious loss of profits by failing to obtain the contractually agreed sum, which is the essential and principal element of the public contract at issue, cannot justify the grant of an interim measure, this should also apply, and even more so, as regards the loss of those accidental and incidental elements (see order of 30 May 2017, Enrico Colombo and Corinti Giacomo v Commission, T‑690/16 R, not published, EU:T:2017:370, paragraph 55 and the case-law cited).
51      Furthermore, it should be noted, as the Parliament rightly points out, that the applicant cannot claim that it ‘will [lose] the reference of the European Parliament as a client for the translation [into] the English language’, in so far as, since the second framework contract of the cascade system for that lot has been awarded to it, it has the status of secondary contractor. That argument is all the more valid as the applicant was also awarded lots 2, 7, 8, 13, 16 and 17.
52      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.
53      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 rejected.
2.      The costs are reserved.
Luxembourg, 13 March 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.