ORDER OF THE VICE-PRESIDENT OF THE COURT
14 March 2023 (*)
(Interim relief – Articles 278 and 279 TFEU – Appeal – Application for suspension of operation and other interim measures – Public procurement – Article 160(7) of the Rules of Procedure of the Court of Justice)
In Case C‑141/23 P(R)-R,
APPLICATION for suspension of operation and other interim measures under Articles 278 and 279 TFEU, brought on 9 March 2023,
Telefónica de España SA, established in Madrid (Spain), represented by J. Blanco Carol and F. González Díaz, abogados, and P. Stuart, Barrister,
appellant,
the other parties to the proceedings being:
European Commission,
defendant at first instance,
BT Global Services Belgium BV, established in Machelen (Belgium),
intervener at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1        By its application for interim measures, Telefónica de España SA claims, pursuant to Articles 278 and 279 TFEU and Article 160(7) of the Rules of Procedure of the Court of Justice, that the Court of Justice should:
–        order the suspension of operation of the order of the Vice-President of the General Court of the European Union of 28 February 2023, Telefónica de España v Commission (T‑170/22 R-RENV, not published, EU:T:2023:89; ‘the order under appeal’), by which the General Court dismissed its application seeking, first, suspension of the operation of the decision of the European Commission of 21 January 2022 relating to the call for tenders DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’, informing the appellant that its tender had not been successful in the procurement procedure and announcing the imminent signing of a contract with the successful tenderer (‘the decision at issue’) and, secondly, an order requiring the Commission to suspend the signing of that contract; or
–        order the Commission to suspend the award of contracts in the call for tenders DIGIT/A 3/PR/2019/010 pending a ruling from the General Court in Case T‑170/22;
–        order the Commission to suspend the signing of a contract in that call for tenders;
–        grant any other appropriate interim measures; and
–        order the Commission to pay the costs.
2        That application has been made at the same time as Telefónica de España brought an appeal on 8 March 2023, pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, seeking to have the order under appeal set aside.
3        Under Article 160(7) of the Rules of Procedure, which is applicable to the procedure on appeal pursuant to Article 190(1) of those rules, the judge hearing an application for interim measures may grant that application 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        In accordance with the Court’s case-law, 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 effect, Article 160(7) of the Rules of Procedure permits the judge hearing an application for interim measures to adopt such measures, as a precaution, until either an order has been made terminating those interlocutory proceedings or until the main proceedings are terminated, if this should take place first (orders of the Vice-President of the Court of Justice of 4 October 2017, Wall Street Systems UK v ECB, C‑576/17 P(R)-R, not published, EU:C:2017:735, paragraph 4, and of 22 July 2022, Telefónica de España v Commission, C‑478/22 P(R)-R, not published, EU:C:2022:598, paragraph 4).
5        When assessing the need for such an order, the judge hearing the application for interim measures must examine the circumstances of the specific case at hand (orders of the Vice-President of the Court of Justice of 4 October 2017, Wall Street Systems UK v ECB, C‑576/17 P(R)-R, not published, EU:C:2017:735, paragraph 5, and of 22 July 2022, Telefónica de España v Commission, C‑478/22 P(R)-R, not published, EU:C:2022:598, paragraph 5).
6        In the present case, it is apparent from the material before the Court that, after receiving notification, dated 21 January 2022, of the decision at issue, the appellant submitted to the Commission observations in which it identified a number of errors allegedly made in the evaluation of the tenders. On 1 February 2022, the Commission informed all the tenderers that it had decided to suspend the signing of the framework contract concerned, pending an additional examination. On 21 March 2022, the Commission informed the appellant that it had concluded that additional examination, that it had identified two errors in the technical evaluation of the tender submitted by the consortium to which Telefónica de España belongs and that the authorising officer had confirmed the initial award decision.
7        By application lodged at the Registry of the General Court on 31 March 2022, the appellant brought an action for annulment of the decision at issue. By separate document lodged at the Registry of the General Court on the same day, the appellant brought an application for interim measures seeking, inter alia, an order requiring the Commission to suspend the signing of a contract in the call for tenders DIGIT/A 3/PR/2019/010.
8        By order of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published), adopted under Article 157(2) of the Rules of Procedure of the General Court, the President of the General Court ordered the suspension of operation of the decision at issue. By the order of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460), the President of the General Court cancelled the order of 1 April 2022 and dismissed the application for interim measures brought by the appellant.
9        By application lodged at the Registry of the Court of Justice on 17 July 2022, the appellant brought an appeal against the order of 14 July 2022. By separate document lodged at the Registry of the Court of Justice on the same day, the appellant brought an application for interim measures seeking, inter alia, an order requiring the Commission to suspend the signing of a contract in the call for tenders DIGIT/A 3/PR/2019/010.
10      By order of 22 July 2022, Telefónica de España v Commission (C‑478/22 P(R)-R, not published, EU:C:2022:598), adopted on the basis of Article 160(7) of the Rules of Procedure of the Court of Justice, the Vice-President of the Court of Justice ordered the Commission to refrain from signing a contract in the call for tenders DIGIT/A 3/PR/2019/010 until the adoption of the order terminating the interlocutory proceedings in Case C‑478/22 P(R)-R or ruling on the appeal in Case C‑478/22 P(R), whichever was the earlier.
11      By an order of 22 November 2022, Telefónica de España v Commission (C‑478/22 P(R), EU:C:2022:914), the Vice-President of the Court of Justice set aside the order of the President of the General Court of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460), and referred the case back to the General Court.
12      By the order under appeal, the Vice-President of the General Court refused the application for interim measures brought by the appellant before the General Court and cancelled the order of the President of the General Court of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published).
13      According to the appellant, the Court of Justice should grant the present application for interim measures so that the appellant is not caused serious and irreparable harm.
14      If a contract were to be concluded in the call for tenders DIGIT/A 3/PR/2019/010 before a ruling is given on the appeal brought against the order under appeal, the appellant submits that it could no longer be awarded a contract in that context and that it would therefore suffer damage related to, inter alia, loss of profit, damage to its reputation, the lack of any available comparable opportunities and the relevant market structure being changed as a result of that contract being awarded to a competitor.
15      Furthermore, the appellant maintains that, in the order under appeal, the Vice-President of the General Court made, inter alia, a number of errors of law in the application of the condition relating to the existence of a prima facie case.
16      In order to rule on the present application for interim measures, it must be borne in mind that it follows from the order of 22 November 2022, Telefónica de España v Commission (C‑478/22 P(R), EU:C:2022:914), that, if Telefónica de España were to establish the existence of a particularly serious prima facie case, it is sufficient for it – in order to demonstrate the existence of urgency such as to justify the adoption of interim measures – to prove that the signing of a contract in the call for tenders DIGIT/A 3/PR/2019/010 would cause it serious damage.
17      Since, by the appeal brought against the order under appeal, the appellant challenges, inter alia, the assessment of the Vice-President of the General Court that it had not established the existence of a particularly serious prima facie case, such a possibility cannot be ruled out before the Court of Justice takes a decision on that appeal. In addition, the appellant submits that the damage which it alleges is irreparable.
18      Therefore, in view of the serious and, as the case may be, irreparable damage that might result from the signing of a contract in the call for tenders DIGIT/A 3/PR/2019/010, the present interlocutory proceedings would risk being deprived of all substance and effect if the Commission were able to sign that contract before the Court has assessed the need to grant interim measures.
19      Consequently, it is in the interests of the proper administration of justice to order the Commission, even before it has submitted its observations, to refrain from signing a contract in the call for tenders DIGIT/A 3/PR/2019/010 until the adoption of the order terminating the present interlocutory proceedings or ruling on the appeal in Case C‑141/23 P(R), whichever is the earlier.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1.      The European Commission shall refrain from signing a contract covered by tendering procedure DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’, until the adoption of the order terminating the present interlocutory proceedings or ruling on the appeal in Case C‑141/23 P(R), whichever is the earlier.
2.      The costs are reserved.
Luxembourg, 14 March 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
Vice-President
*      Language of the case: English.