ORDER OF THE VICE-PRESIDENT OF THE COURT
22 March 2018 (*)
(Appeal — Order for interim measures — Public service contracts — Rejection of the bid made by a tenderer and decision to award the contract to another tenderer — Application for suspension of operation of a measure — Urgency — Serious harm)
In Case C‑576/17 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought 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), represented by C. Kroppenstedt and I. Koepfer, acting as Agents, and by U. Soltész and A. Neun, Rechtsanwälte,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Wathelet,
makes the following
Order
1        By its appeal, Wall Street Systems UK Ltd requests 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 Vice-President 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 decision 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 (‘the framework agreement at issue’).
Background to the dispute
2        By a contract notice dated 14 May 2016, the ECB initiated a negotiated tendering procedure for the conclusion of the framework agreement at issue. The appellant and OpenLink LLC were among the tenderers.
3        By letter of 29 June 2017, the ECB informed the appellant, first, that its tender had not been selected, since the tender submitted by OpenLink LLC had been considered the most economically advantageous tender, and, secondly, that the framework agreement at issue would be signed after a period of 10 calendar days starting on the day following dispatch of the decision rejecting the tender and that the appellant could request further information concerning the rejection of its tender.
4        On 6 July 2017, on the basis of Article 39 of Decision (EU) 2016/245 of the ECB of 9 February 2016 laying down the rules on procurement (ECB/2016/2) (OJ 2016 L 45, p. 15), the appellant lodged an appeal before the ECB’s Procurement Review Body, by which it sought suspension of the procedure for awarding the framework agreement at issue.
5        The appeal was rejected by the decision at issue.
6        By email of 21 August 2017, the ECB informed the appellant that the framework agreement at issue would not be signed before the expiry of a period of 10 calendar days from the sending of that email.
The proceedings before the General Court and the order under appeal
7        By application lodged at the General Court Registry on 28 August 2017, the appellant brought an action for annulment of the decision at issue.
8        By a separate document, lodged at the General Court Registry on the same date, the appellant brought an application for interim measures seeking an order requiring the ECB to refrain from entering into the framework agreement at issue with OpenLink LLC and seeking the adoption of any further necessary interim measures for the protection of its rights until the General Court has ruled on the action.
9        By order of 29 August 2017, the Vice-President of the General Court, in accordance with Article 157(2) of the Rules of Procedure of the General Court, provisionally granted the suspension of operation until such time as the order terminating the proceedings for interim measures is made.
10      On 26 September 2017, the Vice-President of the General Court made the order under appeal, by which he dismissed the application for interim measures.
11      To that end, the Vice-President of the General Court examined at the outset whether the condition relating to urgency was satisfied. In that regard, he first recalled, in paragraph 18 of the order under appeal, that, in accordance with the order of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275, paragraph 41), should the unsuccessful tenderer be required to establish that the dismissal of its application for interim measures would be likely to cause it irreparable harm, such a requirement could, as a general rule, be satisfied only with extreme difficulty, which would limit, excessively and unjustifiably, the tenderer’s right to an effective judicial remedy under Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
12      Thus, in paragraphs 18 to 20 of the order under appeal, the Vice‑President of the General Court found, in essence, that the unsuccessful tenderer, to the extent that it is able to show that there is a particularly strong prima facie case, is required only to establish the seriousness of the harm that would be caused should the operation of the contested decision not be suspended, and not also the irreparable nature of that harm.
13      Next, in paragraphs 22 to 29 of the order under appeal, the Vice‑President of the General Court examined the factors put forward by the appellant in order to establish the seriousness of the alleged harm. Having concluded, in paragraph 30 of that order, that those factors did not give grounds for a finding that there was serious harm, he dismissed the application for lack of urgency.
Forms of order sought and procedure before the Court of Justice
14      The appellant claims that the Court should:
–        set aside the order under appeal;
–        arrange a hearing; and
–        order the ECB to pay the costs.
15      The ECB contends that the Court should:
–        dismiss the appeal as inadmissible or, in any event, unfounded;
–        refuse the request for a hearing; and
–        order the appellant to pay the costs.
16      On 29 September 2017, the appellant also submitted an application for interim measures in the context of the present appeal, seeking, in essence, an order requiring the ECB to refrain from entering into the framework agreement at issue with OpenLink LLC, pending a final decision of the Court of Justice on the appeal against the order under appeal.
17      By order of 4 October 2017, Wall Street Systems UK v ECB (C‑576/17 P(R)-R, not published, EU:C:2017:735), the Vice-President of the Court, in accordance with Article 160(7) of the Rules of Procedure of the Court of Justice, ordered the ECB to refrain from entering into the framework agreement at issue with OpenLink LLC until an order has been made closing the proceedings for interim measures in Case C‑576/17 P(R)-R or determining the appeal in the present case, whichever is the earlier.
The appeal
18      The appellant raises five grounds of appeal in support of its appeal.
The first ground of appeal
19      By its first ground of appeal, referring in particular to paragraph 22 of the order under appeal, the appellant claims that the Vice-President of the General Court erroneously held that, in order to satisfy the condition relating to urgency, the appellant had to prove that it would suffer serious harm in the event of the operation of the decision at issue not being suspended.
20      More specifically, the appellant submits that the criteria laid down by EU law for the purposes of establishing urgency in public procurement matters differ from those normally taken into consideration by the judge hearing applications for interim measures in other areas. In particular, in public procurement matters, the judge should take into account the opportunity for the tenderer to be awarded a contract and the duty of mutual consideration that exists as from the pre‑contractual phase between the tenderer and the contracting authority, but he could not require proof to be provided of the seriousness of the harm that would be caused by the dismissal of the application for suspension of operation.
21      The ECB disputes that line of argument.
22      In that regard, in order to rule on the first ground of appeal, it must be borne in mind that, in accordance with Article 156(4) of the Rules of Procedure of the General Court, applications for interim measures must 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.
23      Accordingly, the judge hearing an application for interim measures may order interim measures only 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. The judge hearing the application for interim measures must, where appropriate, also weigh up the interests involved (orders of the President of the Court of 24 April 2008, Commission v Malta, C‑76/08 R, not published, EU:C:2008:252, paragraph 21, and of 10 December 2009, Commission v Italy, C‑573/08 R, not published, EU:C:2009:775, paragraph 11; order of the Vice-President of the Court of 3 December 2014, Greece v Commission, C‑431/14 P-R, EU:C:2014:2418, paragraph 19).
24      As regards, more specifically, the assessment of the condition relating to urgency, it should be pointed out that it must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party requesting the interim measure (order of the Vice-President of the Court 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). It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering harm (see, to that effect, order of the Vice-President of the Court of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 37 and the case-law cited).
25      However, as the Vice-President of the General Court correctly recalled in paragraph 18 of the order under appeal, the Court has already held that, having regard to the requirements which follow from the effective protection which must be guaranteed in public procurement matters, the view must be taken that, when an unsuccessful tenderer is able to show that there is a particularly strong prima facie case, it cannot be required to establish that the rejection of its application for interim measures also risks causing it irreparable harm. Given the extreme difficulty of establishing the latter, imposing such a requirement on a tenderer would limit, excessively and unjustifiably, the tenderer’s right to an effective judicial remedy under Article 47 of the Charter (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 41).
26      In that regard, it should nevertheless be noted that that easing of the condition relating to urgency implies only that serious but not irreparable harm is sufficient to establish it (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 57). The party seeking the grant of interim measures is therefore required to show that it cannot await the outcome of the main proceedings without suffering serious harm.
27      Thus, the Vice-President of the General Court did not err in holding, in paragraph 22 of the order under appeal, that it was necessary to consider whether the appellant had established the seriousness of the harm that would be caused by a failure to suspend operation of the decision at issue.
28      In those circumstances, the first ground of appeal must be rejected.
The second ground of appeal
29      By its second ground of appeal, the appellant claims that the Vice‑President of the General Court, first, erroneously based his decision on the cumulative nature of the conditions for granting interim measures in order to limit his analysis to the condition relating to urgency, without taking into consideration the merits of the appellant’s action against the decision at issue. Secondly, the appellant claims that the Vice-President of the General Court erred in law in holding, in paragraph 15 of the order under appeal, that there was no need to hear oral arguments from the parties, whereas the complex nature of the questions of law raised by the present case would have required such a hearing to be held.
30      The ECB disputes that line of argument.
31      In this respect, as regards, in the first place, the alleged error of the Vice-President of the General Court in the examination of the conditions for granting interim measures, it must be borne in mind that, according to settled case-law, in the context of his examination, the judge hearing the application for interim measures enjoys a broad 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 EU law imposing a pre-established scheme of analysis within which the need to order interim measures must be analysed (order of the Vice‑President of the Court of Justice of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 22).
32      The Vice-President of the General Court was therefore fully entitled to hold, in paragraph 16 of the order under appeal, that it was appropriate to examine first whether the condition relating to urgency was satisfied.
33      Furthermore, it is also settled case-law that those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the Vice-President of the Court of 7 July 2016, Commission v Bilbaína de Alquitranes and Others, C‑691/15 P-R, not published, EU:C:2016:597, paragraph 19 and the case-law cited).
34      In paragraphs 22 to 30 of the order under appeal, the Vice-President of the General Court examined whether the appellant had established that the dismissal of its application for suspension of operation of the decision at issue was likely to cause it serious harm, then found that this was not the case, and the appellant did not challenge that finding in its appeal.
35      While the relative strength of the prima facie case is not wholly without relevance for the assessment of urgency, the fact remains that, in accordance with Article 156(4) of the Rules of Procedure of the General Court, those are two separate conditions which govern the obtaining of a suspension of operation of measures, and accordingly the appellant remains bound also to demonstrate that it is urgent that the interim measures applied for be granted (see, to that effect, order of the President of the Court of 31 January 2011, Commission v Éditions Odile Jacob, C‑404/10 P-R, not published, EU:C:2011:37, paragraph 27).
36      It follows that, contrary to what the appellant claims, the Vice-President of the General Court did not err in holding, in paragraph 31 of the order under appeal, that, as the condition relating to urgency was not satisfied, the application for interim measures had to be dismissed, without there being any need to consider the condition relating to a prima facie case.
37      As regards, in the second place, the error of law that the Vice-President of the General Court allegedly committed by holding that there was no need to hear oral arguments from the parties, suffice it to note that, as the Rules of Procedure of the General Court do not contain any provision on the oral procedure in the context of an application for interim measures, it is for the judge hearing the application for interim measures to assess the need to hold a hearing and hear oral arguments from the parties. That judge enjoys a broad discretion in that regard (see, to that effect, orders of the President of the Court of 24 March 2009, Cheminova and Others v Commission, C‑60/08 P(R), not published, EU:C:2009:181, paragraph 81, and of 14 December 2011, Alcoa Trasformazioni v Commission, C‑446/10 P(R), not published, EU:C:2011:829, paragraph 72).
38      In the present case, as the Vice-President of the General Court found, in paragraph 15 of the order under appeal, that, taking into account all the documents in the file, he had all the material necessary to rule on the application for interim measures without there being any need to hear oral arguments from the parties, the mere reference by the appellant to the complexity of the present case does not, as such, support the conclusion that that paragraph is vitiated by an error of law.
39      In those circumstances, the second ground of appeal must be rejected.
The third ground of appeal
40      By its third ground of appeal, the appellant claims, in essence, that the Vice‑President of the General Court did not take the ECB’s interests into account in his assessment of the condition relating to urgency. He should, first of all, have determined whether granting the interim measures applied for was liable to cause harm to the ECB and, if so, should have weighed that harm against that suffered by the appellant in the event of a refusal to grant those measures. If, following that analysis, the Vice-President of the General Court had found that the former harm was less serious than the latter, he should have granted the application for interim measures.
41      The ECB disputes that line of argument.
42      In that regard, in so far as the appellant claims that the Vice‑President of the General Court failed to verify whether granting the interim measures applied for would have caused harm to the ECB, its argument is based on an incorrect interpretation of the duties imposed on the judge hearing the application for interim measures in the course of examining the condition of urgency and weighing up the interests involved.
43      It must be noted that the purpose of interim proceedings is to guarantee the full effectiveness of the final future decision in order to ensure that there is no lacuna in the legal protection provided by the Court of Justice. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief (order of the President of the Court of 1 March 2017, EMA v PTC Therapeutics International, C‑513/16 P(R), not published, EU:C:2017:148, paragraph 100).
44      Thus, it is only in the context of the examination of the condition relating to the weighing up of the interests involved that the judge hearing the application for interim measures may take into account, where necessary, the consequences that the granting of interim measures could have for the party opposed to those measures.
45      Consequently, contrary to what the appellant claims, the Vice‑President of the General Court was not required to take the ECB’s interests into account in his examination of the condition relating to urgency.
46      It follows that the third ground of appeal cannot succeed either.
The fourth ground of appeal
47      By its fourth ground of appeal, the appellant claims that the Vice‑President of the General Court failed to take into account the fact that it had submitted, in the course of its action for annulment of the decision at issue, a request for an expedited procedure, which, had it been granted, would have led the General Court to rule on the action promptly, so that granting the interim measures applied for would not have caused any harm to the ECB.
48      The ECB disputes that line of argument.
49      In ruling on this ground of appeal, it must be noted that the request for an expedited procedure submitted by the appellant on 28 August 2017 pursuant to Article 152 of the Rules of Procedure of the General Court was not refused until 3 October 2017, that is, after the order under appeal was made, on 26 September 2017.
50      In those circumstances, at the time when the Vice-President of the General Court made that order, the request was still pending. Consequently, contrary to what the appellant maintains, the Vice‑President could not assume that the General Court would grant the appellant’s request that a ruling be given on the action against the decision at issue under the expedited procedure.
51      Moreover, even if that request had been granted before the order under appeal was made, it would have had no effect whatsoever on the examination of urgency carried out by the Vice-President of the General Court. Indeed, as the ECB rightly points out, there is no correlation between the question whether to rule on the substance of a case under the expedited procedure and that of whether the interim measures applied for in that case are urgent in order to avoid serious harm to the party requesting them.
52      It follows that the Vice-President of the General Court was not required to take into account, when examining urgency, the fact that the appellant had requested, in its action against the decision at issue, that a ruling be given under the expedited procedure pursuant to Article 152 of the Rules of Procedure of the General Court.
53      The fourth ground of appeal must therefore be rejected.
The fifth ground of appeal
54      By its fifth ground of appeal, the appellant claims that the Vice‑President of the General Court failed to have regard to the requirement to provide effective judicial protection laid down by Article 1(5) of Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31), the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and the Charter.
55      In essence, according to the appellant, that requirement imposes on the judge hearing the application for interim measures the obligation to order, in any case relating to a public contract, suspension of operation of the act forming the subject matter of the action for annulment. Therefore, in the present case, by refusing to find urgency and, consequently, dismissing the application for interim measures submitted by the appellant, the Vice-President of the General Court failed to satisfy that requirement.
56      The ECB disputes that line of argument.
57      It should be borne in mind that, under Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal.
58      Thus, according to settled case-law, the jurisdiction of the Court of Justice in an appeal is limited to a review of the findings of law on the pleas argued before the General Court. Consequently, a party cannot put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a case of wider ambit than that which came before the General Court (order of 7 July 2016, Fapricela v Commission, C‑510/15 P, not published, EU:C:2016:547, paragraph 20 and the case-law cited).
59      In the present case, it should be noted that, at first instance, the appellant did not allege infringement of the requirement to provide effective judicial protection under Directive 2007/66, the Charter or the Convention for the Protection of Human Rights and Fundamental Freedoms, and that this argument was put forward for the first time only before the Court of Justice.
60      In those circumstances, the fifth ground of appeal is manifestly inadmissible.
61      It follows from all the foregoing that the appeal must be dismissed in its entirety, without it being necessary to organise a hearing in the present proceedings, as the Court is sufficiently informed by the arguments of the parties.
Costs
62      Under Article 138(1) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the ECB has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs.
On those grounds, the Vice-President of the Court hereby orders:
1.      The appeal is dismissed.
2.      Wall Street Systems UK Ltd shall pay the costs.
Luxembourg, 22 March 2018.
A. Calot Escobar
A. Tizzano
Registrar
Vice-president
*      Language of the case: English.