ORDER OF THE PRESIDENT OF THE SIXTH CHAMBER OF THE GENERAL COURT
14 March 2023 (*)
(Intervention – Interest in the result of the case – Public procurement – Decision to cancel the procurement procedure)
In Case T‑281/22,
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 and L. Lence de Frutos, lawyers,
applicants,
v
European Commission, represented by L. André and M. Ilkova, acting as Agents,
defendant,
makes the following
Order
1        By their action under Article 263 TFEU, the applicants, Xpand Consortium, NTT Data Belgique, Sopra Steria Benelux and Fujitsu Technology Solutions, seek the annulment of decision ARES (2022) 1579941 of the European Commission of 3 March 2022 by which it cancelled the procurement procedure relating to call for tenders BUDG 19/PO/04, Lots 1 and 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 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), on the ground that the contracting authority had identified errors in the procurement documents, in particular that certain selection criteria did not comply with Regulation 2018/1046 (‘the contested decision’).
2        By document lodged at the General Court Registry on 9 August 2022, Arhs developments sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.
3        By documents lodged at the General Court Registry on 6 January 2023, the applicants and the Commission submitted their observations on the application to intervene. The applicants objected to it and the Commission stated that the present action was not capable of affecting the situation of Arhs developments.
4        In accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court under the first paragraph of Article 53 of that statute, any person which can establish an interest in the result of a case submitted to the General Court, except in cases between Member States, between institutions of the Union or between Member States, on the one hand, and institutions of the Union, on the other hand, may intervene in that case.
5        The concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment (see order of the President of the Court of Justice of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 6 and the case-law cited). In that regard, it should be ascertained in particular whether the intervener is directly affected by the contested measure and whether his or her interest in the result of the case is established (see, to that effect, order of the President of the Court of Justice of 25 January 2008, Provincia di Ascoli Piceno et Comune di Monte Urano v Sun Sang Kong Yuen Shoes Factory, C‑461/07 P(I), not published, EU:C:2008:46, paragraph 5).
6        In principle, an interest in the result of the case can be considered to be sufficiently direct only if that result is capable of altering the legal position of the applicant to intervene (see order of the President of the Court of Justice of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 7 and the case-law cited).
7        In the present case, the applicant to intervene submits that it has a direct and existing interest in intervening in support of the form of order sought by the Commission on the ground, in essence, that the annulment of the contested decision would alter its legal position. First, that annulment would reinstate the Commission’s decisions to award the contract at issue to the applicant Xpand Consortium and to reject the tender submitted by the applicant to intervene for Lot 2. Secondly, as a result of the contested decision, Arhs developments continues to provide the services concerned by a previous procurement procedure, involving the provision of the same services concerned by Lot 2 of the cancelled procedure, as long as a new tendering procedure for the same services has not been successfully completed.
8        The Commission observes that Arhs developments is not affected by the action since the action is inadmissible.
9        The applicants submit that Arhs developments does not have a direct interest in the result of the case since its chances of being successful in the new procedure are hypothetical and it is not in a particular situation which distinguishes it from the remaining participants in that new procedure.
10      In addition, the applicants argue that Arhs developments’ interest in intervening in the present case cannot be established by the mere fact that it is currently providing services under the previous contract, which has been extended only due to an act of mismanagement on the part of the Commission. They argue that Arhs developments cannot invoke a right to have that contract extended.
11      Furthermore, the applicants state, in the alternative, that it is only the consortium to which Arhs developments belongs which is the entity that could have an interest in intervening in the present case, not just one of its members.
12      In the first place, it must be borne in mind that, by virtue of the retroactive effect of judgments by which measures are annulled, the finding of illegality takes effect from the date on which the annulled measure entered into force (judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 30, and of 29 November 2007, Italy v Commission, C‑417/06 P, not published, EU:C:2007:733, paragraph 51). The author of the act must therefore have reference to the date on which it adopted the annulled act (see, to that effect, judgments of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 58, and of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 52).
13      Accordingly, if the contested decision were annulled, the contracting authority would have to have reference to the date on which it was adopted (see, to that effect, order of 7 December 2020, Militos Symvouleftiki v Commission, T‑536/19, not published, EU:T:2020:588, paragraph 30).
14      In the present case, the contested decision cancelled the tendering procedure for Lots 1 and 2. That decision therefore had the effect of annulling the Commission’s decisions of 11 February 2022, taken in the context of that procedure, to accept the tender submitted by the applicant Xpand Consortium and to reject the tender submitted by Arhs developments for Lot 2 of the contract.
15      Consequently, the annulment of the contested decision would have the effect of reinstating the tendering procedure and those decisions to award the contract and to reject the tender submitted by Arhs developments.
16      It follows that the legal position of Arhs developments would be directly affected by the annulment of the contested decision (see, to that effect, order of 14 May 2008, Icuna.Com v Parliament, T‑383/06 and T‑71/07, EU:T:2008:148, point 47) and, accordingly, that its interest in the result of the case is direct within the meaning of the case-law referred to in paragraph 6 above.
17      That is all the more so since the principle of equality of arms, which is an integral part of the principle of effective judicial protection of the rights which individuals derive from EU law, enshrined in Article 47 of the Charter of Fundamental Rights, in so far as it is a corollary, like, in particular, the principle of audi alteram partem, of the very concept of a fair hearing, imposes an obligation on the court to offer each party a reasonable opportunity of presenting its case in conditions that do not place it in a clearly less advantageous position compared with its opponent (see, by analogy, order of the President of the Court of Justice of 16 July 2020, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2020:561, paragraph 22).
18      The applicants’ arguments relating to Arhs developments’ chances of being successful in the new procedure or the fact that Arhs developments cannot invoke a right to have the previous contract extended, which concern the potential consequences of the present action for its economic situation, are not such as to undermine the link between the action and the legal position of Arhs developments.
19      Those arguments must therefore be rejected.
20      In the second place, as regards the applicants’ argument that it is only the consortium to which Arhs developments belongs which is the entity that could have an interest in intervening in the present case, it should be noted that the members of an ad hoc structure which does not have legal personality and which is transparent so far as its members are concerned, such as the consortium of which Arhs developments is part, must be regarded as being affected by an EU measure in an equivalent manner to the ad hoc structure affected by that measure (see, to that effect and by analogy, judgment of 17 January 2019, Proximus v Council, T‑117/17, not published, EU:T:2019:19, paragraph 41 and the case-law cited).
21      That argument is therefore not such as to call into question Arhs developments’ interest in the result of the case.
22      In the third place, as regards the Commission’s observation that the present action cannot affect the situation of Arhs developments since the action should be regarded as inadmissible, suffice it to state that it is not such as to call into question Arhs developments’ interest in the result of the case.
23      Whether an applicant to intervene has an interest in the result of a case cannot vary depending on the solution to be given by the General Court to that case in the decision which closes the proceedings.
24      Since the application to intervene was brought in accordance with Article 143 of the Rules of Procedure and the applicant to intervene has established its interest in the result of the case, the application must be granted, in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court under the first paragraph of Article 53 thereof.
On those grounds,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      Arhs developments SA is granted leave to intervene in Case T‑281/22 in support of the form of order sought by the Commission.
2.      The Registrar shall serve on the intervener a copy of every document served on the parties.
3.      A period shall be prescribed within which the intervener must submit a statement in intervention.
4.      The costs are reserved.
Luxembourg, 14 March 2023.
E. Coulon
M.J Costeira
Registrar
President
*      Language of the case: English.