ORDER OF THE PRESIDENT OF THE GENERAL COURT
21 September 2022 (*)
(Interim relief – Public supply contracts – Provision of Development, Implementation, Maintenance/Operations, Advice and Consultancy Services in Accounting/Finance and Financial IT Systems – Application for interim measures – Lack of urgency)
In Case T‑281/22 R,
Xpand Consortium, established in Brussels (Belgium),
NTT Data Belgique, established in Brussels,
Sopra Steria Benelux, established in Brussels,
Fujitsu Technology Solutions, established in Brussels,
represented by M. Troncoso Ferrer, L. Lence de Frutos and A. Rebollar Corrales, lawyers,
applicants,
v
European Commission, represented by L. André and M. Ilkova, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1        By their application based on Articles 278 and 279 TFEU, the applicants, Xpand Consortium, NTT Data Belgique, Sopra Steria Benelux and Fujitsu Technology Solutions, seek an order that the European Commission must refrain from launching a new procurement procedure with the same subject matter as that of the procedure for the award of a contract bearing the reference BUDG 19/PO/04, entitled ‘Provision of Development, Implementation, Maintenance/Operations, Advice and Consultancy Services in Accounting/Finance and Financial IT Systems’, until such time as the General Court has given a final ruling on their action for annulment, brought on 13 May 2022, against the Commission’s decision of 3 March 2022 to cancel that procurement procedure.
Background to the dispute and forms of order sought
2        On 25 November 2020, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2020/S, 230‑565743), the Commission issued an open call for tenders bearing the reference BUDG 19/PO/04 for the provision of ‘Development, Implementation, Maintenance/Operations, Advice and Consultancy Services in Accounting/Finance and Financial IT Systems’.
3        The call for tenders was divided into two lots, including Lot No 2, entitled ‘IT SAP’, which concerns the delivery of services in the areas of the development and operations of financial and/or accounting information technology systems to the contracting authorities in various IT technologies, with SAP® as a focal point.
4        The value of Lot No 2 was estimated at EUR 545 million excluding value added tax (VAT) over 4 years.
5        The call for tenders for Lot No 2 sought to conclude multiple, separate but identical framework service contracts, in a ‘cascade’ fashion, with a maximum of three economic operators.
6        On 26 January 2021, as members of the consortium called ‘Xpand’, the applicants submitted their tender for Lot No 2.
7        On 11 February 2022, by the notification letter bearing the reference ARES (2022) 1027331, the Commission informed the applicants that their tender had been accepted following the procurement procedure. In the same notification letter, the Commission stated, inter alia, that that letter did not constitute a commitment on the part of the contracting authority and that the latter could cancel the procurement procedure until the signing of the framework contract. Furthermore, it was stated that the framework contract could be signed only after a period of 10 calendar days starting from the day following the date on which that notification had been sent and that, during that period, the applicants could submit observations on the procurement procedure to the contracting authority. If justified by requests or comments made by the unsuccessful tenderers or any other relevant information, the Commission reserved the right to suspend the signing of the framework contract in order to allow for further examination. In addition, in that letter, the Commission asked the applicants to return to it the signed framework contract within 10 working days of receipt of the notification letter.
8        By applications lodged at the Court Registry on 18 February 2022, an unsuccessful tenderer, Arhs developments SA, brought, first, an action for, inter alia, annulment of the Commission’s decision of 11 February 2022 relating to call for tenders BUDG 19/PO/04, informing it that its tender for Lot No 2 of the contract at issue had not been successful (Case T‑88/22), and, secondly, an application for interim measures, in which it claimed, in particular, that the President of the Court should order the suspension of operation of that decision (Case T‑88/22 R).
9        By order of 21 February 2022, Arhs developments v Commission (T‑88/22 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure of the General Court, the President of the Court ordered the Commission to suspend the operation of the decision of 11 February 2022 addressed to Arhs developments, until the order terminating the proceedings for interim relief was made.
10      On 3 March 2022, following the action for annulment and the application for interim measures brought by Arhs developments, the Commission, by decision bearing the reference ARES (2022) 1579941, cancelled the procurement procedure relating to call for tenders BUDG 19/PO/04, both for Lot No 1 and for Lot No 2, in accordance with Article 171 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, ‘the Financial Regulation’), on the ground that the contracting authority had identified errors in the procurement documents and, notably, the non-compliance of some selection criteria with the Financial Regulation (‘the cancellation decision’).
11      By letter of the same date, bearing the reference ARES (2022) 1582755, the Commission informed the applicants that, following observations made by an unsuccessful tenderer, the contracting authority had noted errors in the procurement documents and, notably, that certain selection criteria did not comply with the Financial Regulation and that, as a result, it had decided to cancel the procurement procedure for both lots. That letter also stated that the contracting authority intended to relaunch a new procurement procedure for that contract.
12      By letter dated 8 March 2022, the applicants requested additional information concerning, inter alia, the facts which led to the cancellation of the procurement procedure.
13      On 8 April 2022, by the letter bearing the reference ARES (2022) 2750601, the Commission provided the applicants with more detailed information concerning the reasons for cancelling the procurement procedure in question. In that letter, the Commission stated that the contracting authority had reassessed the technical specifications and had reached the conclusion that the service level agreement could not be classified as a minimum selection criterion concerning the tenderers’ technical and professional capacity, within the meaning of point 20 of Annex I to the Financial Regulation; this was because the information requested from the tenderers in the service level agreement was, for some parts, covered by the technical tender and should, therefore, have been evaluated in the light of the technical award criteria and, for other parts, corresponded to the conditions for the performance of the contract, which were not linked to any minimum level of capacity under the selection criteria.
14      On 3 May 2022, the applicants informed the Commission of their intention to bring an action for annulment of the cancellation decision and requested the Commission to refrain from launching a new tendering procedure for the same services, until the Court had ruled on Case T‑88/22 and on that action for annulment.
15      On 12 May 2022, by the letter bearing the reference ARES (2022) 3632241, the Commission confirmed its intention to launch the second procurement procedure as soon as possible and considered that the extension of public contracts could be carried out only for the shortest possible time frame and in strict compliance with the Financial Regulation.
16      By application lodged at the Court Registry on 13 May 2022, the applicants brought an action for annulment of the cancellation decision.
17      By a separate document, lodged at the Court Registry on 10 June 2022, the applicants brought the present application for interim measures, in which they claim, in essence, that the President of the Court should:
–        order the Commission to refrain from launching a new procurement procedure with the same subject matter as the procurement procedure bearing the reference BUDG 19/PO/04 until the Court has given a definitive ruling on the main action;
–        order the Commission to pay the costs.
18      In its observations on the application for interim measures, which were lodged at the Court Registry on 24 June 2022, the Commission contends that the President of the Court should:
–        dismiss the application for interim measures as inadmissible;
–        dismiss as unfounded the interim measures requested;
–        order the applicants to pay the costs.
Law
19      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 or she 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. 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 the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
20      The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are 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’.
21      The judge hearing an application for interim relief 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, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. 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).
22      In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular 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, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
23      Having regard to the material 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.
24      In the circumstances of the present case, and without its being necessary to rule on the admissibility of the present application for interim measures, it is appropriate to examine first whether the condition relating to urgency is satisfied.
25      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 judicature. 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 harm (see, to that effect, 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).
26      It is in the light of those criteria that the examination of whether the applicants have managed to demonstrate urgency must be carried out.
27      In the present case, in the first place, the applicants submit that, in the field of public procurement, since the EU judicature has accepted an easing of the conditions applicable to the assessment of the existence of urgency during the pre-contractual phase for unsuccessful tenderers, they should also be able to benefit from that easing allowing unsuccessful tenderers to demonstrate urgency other than by establishing the existence of irreparable harm, since, although the applicants cannot be placed on the same footing as an unsuccessful tenderer, they logically expected the Commission to sign the framework contract and this was not the case solely because of its unlawful behaviour.
28      In the second place, in order to demonstrate the seriousness of their harm, the applicants submit that that harm is objectively not insignificant, since the estimated value of the framework contract is above EUR 500 million.
29      In the third place, the applicants add that, following the second procurement procedure, it is likely that they will lose considerable market share and experience relevant to other calls for tenders and that they will be placed at a disadvantage compared with other potential tenderers. Their chances of being awarded the contract in the second procurement procedure will thus diminish, since the other tenderers are now aware of the main characteristics of the applicants’ tender, in particular the price offered for the services forming part of Lot No 2, which the Commission communicated to those tenderers. According to the applicants, that is particularly relevant in the procurement procedures where the contract must be awarded to the most economically advantageous tender. Consequently, the launch of the second procurement procedure will cause them serious harm, since, for the same services, they will be forced to offer a price below their best-known price.
30      The Commission contends, by contrast, that the condition relating to urgency has not been satisfied.
31      The General Court notes that, in the first place, with regard to the applicants’ argument concerning the application of the easing of the conditions applicable to the assessment of urgency in public procurement litigation, it is true that, according to the case-law of the Court of Justice – 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 Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 41).
32      Nevertheless, that easing of the conditions applicable to assessment of urgency, justified by the right to an effective judicial remedy, applies only during the pre-contractual phase, provided that the 10-day standstill period laid down in Article 175(3) of the Financial Regulation is respected (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 42), the purpose of the 10-day standstill period being to give the interested parties an opportunity to challenge the award of a contract before the courts before the contract is concluded (order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 37).
33      Thus, the Court of Justice has held that effective legal protection requires that the interested parties be informed of an award decision a reasonable length of time before the contract is concluded so that they have a real possibility of bringing proceedings and, in particular, of applying for interim measures pending conclusion of the contract (order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 29).
34      In the context of an application for interim measures, the EU judicature has observed that the requirement for unsuccessful tenderers to demonstrate irreparable harm can be satisfied only with excessive difficulty due to systemic reasons and that such an outcome is irreconcilable with the requirements of effective interim protection, which has to be guaranteed in the area of public procurement (order of 4 December 2014, Vanbreda Risk & Benefits v Commission, T‑199/14 R, EU:T:2014:1024, paragraphs 157 and 158).
35      In those circumstances, the Court of Justice has confirmed that the application, without qualification, of case-law, even settled case-law, which makes it practically impossible for an unsuccessful tenderer to obtain a suspension of the operation of a contract award decision from an institution or other body of the EU, on the ground that the loss which it is likely to suffer, being financial in nature, is not irreparable, cannot be reconciled with the requirements which follow from the effective provisional protection which must be guaranteed in public procurement matters (order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 30).
36      Thus, in the case which gave rise to the order of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275), to which the applicants refer in support of their arguments, the Court of Justice wished to ensure that unsuccessful tenderers had a real possibility of applying for interim measures pending conclusion of the contract, since the application of the previous case-law, which had required a demonstration of the occurrence of irreparable harm, made it, for systemic reasons, almost impossible for an unsuccessful tenderer to obtain a suspension of operation of a contract award decision in order to prevent the contracting authority from creating a fait accompli by concluding the contract with the successful tenderer.
37      In the present case, it is clear that the applicants, as the successful tenderer before the Commission adopted the cancellation decision, are not in the same situation as the unsuccessful tenderers. While it is true that the cancellation decision means that they cannot conclude with the Commission the contract relating to the contract award in question, it is not inconceivable, at this stage, that a contract will be awarded to them once the new procurement procedure has concluded. The applicants not only retain the right to bring an action for damages under Articles 268 TFEU and 340 TFEU if it were to become apparent that the cancellation decision is unlawful, but they may also conclude the framework contract concerned if the contracting authority decides, as it envisages in the present case, to launch a new procurement procedure and then, at the end of that procedure, decides to award them the contract.
38      Moreover, if the contract at issue is not awarded to them, they could then rely on the case-law arising from the order of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275) by bringing an action for annulment and an application for interim measures within the 10-day standstill period provided for in Article 175(3) of the Financial Regulation.
39      It must, therefore, be held that the applicants’ situation is in no way comparable to that of an unsuccessful tenderer who is likely to find itself unable to be awarded the public contract. Consequently, the applicants cannot be exempted from the obligation to demonstrate that the operation of the cancellation decision and the launch of a new call for tenders would cause serious and irreparable harm.
40      In the second place, as regards the applicants’ arguments that they would objectively suffer not insignificant financial harm, the loss of market share and experience relevant to other significant calls for tenders, and also disadvantages in relation to other potential tenderers, it must be pointed out that, according to settled case-law, there is urgency only if the serious and irreparable harm feared by the party seeking interim measures is so imminent that its occurrence is foreseeable with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such harm is likely, it being clear that purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 27 February 2015, Spain v Commission, T‑826/14 R, EU:T:2015:126, paragraph 33 and the case-law cited).
41      In the present case, the harm alleged by the applicants would be likely to materialise only if they do not win the new public contract, which is impossible to anticipate at this stage.
42      It follows that the harm alleged by the applicants is purely hypothetical at this stage.
43      In those circumstances, it must be concluded that the present application for interim measures does not satisfy the condition relating to urgency.
44      Since, as recalled in paragraph 21 above, the conditions for granting interim measures are cumulative, it follows from all of the foregoing that the application for interim measures must be dismissed, without its being necessary to rule on whether there is a prima facie case or to weigh up the interests.
45      Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      The application for interim measures is dismissed.
2.      The costs are reserved.
Luxembourg, 21 September 2022.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.