62022CO0478(03)
ORDER OF THE VICE-PRESIDENT OF THE COURT
22 November 2022 (
*1
)
(Appeal – Interim relief – Public procurement – Tender procedure – Application for suspension of operation of a measure – Urgency – Criteria for assessing the condition relating to urgency – Pre-contractual period – Standstill period)
In Case C‑478/22 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 17 July 2022,
Telefónica de España SA, established in Madrid (Spain), represented by J. Blanco Carol, F.E. González-Díaz, abogados, and P. Stuart, Barrister,
appellant,
the other party to the proceedings being:
European Commission, represented by L. André and M. Ilkova, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1
By its appeal, Telefónica de España SA seeks to have set aside the order of the President of the General Court of the European Union of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460) (‘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 tender procedure 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, second, an order requiring the Commission to suspend the signing of that contract.
Legal context
Directive 89/665/EEC
2
Article 2 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 (OJ 2014 L 94, p. 1) (‘Directive 89/665’), provides in paragraph 7:
‘Except where provided for in Articles 2d to 2f, the effects of the exercise of the powers referred to in paragraph 1 of this Article on a contract concluded subsequent to its award shall be determined by national law.
Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract in accordance with … Articles 2a to 2f, the powers of the body responsible for review procedures shall be limited to awarding damages to any person harmed by an infringement.’
3
Article 2a(2) of that directive states:
‘A contract may not be concluded following the decision to award a contract … before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.
…’
Regulation (EU, Euratom) 2018/1046
4
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 and (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) provides in paragraphs 2 and 3:
‘2.   Subject to the exceptions and conditions specified in Annex I to this Regulation …, the contracting authority shall not sign the contract or framework contract with the successful tenderer until a standstill period has elapsed.
3.   The standstill period shall have a duration of 10 days when using electronic means of communication and 15 days when using other means.’
Facts of the case
5
The background to the dispute is set out in paragraphs 2 to 9 of the order under appeal. It may, for the purposes of the present proceedings, be summarised as follows.
6
On 23 May 2019, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2019/S, 099-238502), the Commission launched the tender procedure DIGIT/A 3/PR/2019/010.
7
On 22 July 2020, a consortium composed of the appellant and two other operators submitted a tender under that tender procedure.
8
On 18 January 2022, the Commission adopted the award decision in accordance with the recommendations of the evaluation committee.
9
By letter of 21 January 2022, the Commission notified the appellant of the decision at issue. In that decision, the Commission informed the appellant, inter alia, that the 10-day standstill period provided for in Article 175 of Regulation 2018/1046, during which the contracting authority must refrain from concluding the contract with the successful tenderer (‘the standstill period’), would start to run on the day following the date on which that letter was sent and that, if requests for a suspension or observations on the award procedure justified it, the Commission reserved the right to suspend the signing of the framework contract in order to carry out a more detailed examination of those requests or observations. The Commission also stated, in the same decision, that the submission of observations on the award procedure could have neither the purpose nor the effect of suspending or extending the standstill period.
10
On 31 January 2022, the appellant submitted observations to the Commission, in which it identified a number of errors allegedly made by the Commission in the evaluation of the tenders.
11
On 1 February 2022, the Commission informed all the tenderers that, in the light of the appellant’s observations, it was suspending the signing of the framework contract pending an additional examination. On 21 March 2022, the Commission informed the appellant that it had completed 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.
The proceedings before the General Court and the order under appeal
12
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.
13
By separate document lodged at the Court Registry on the same day, the appellant made an application for interim measures seeking, first, suspension of the operation of the decision at issue and, second, an order requiring the Commission to suspend the signing of a contract with the successful tenderer in tender procedure DIGIT/A 3/PR/2019/010.
14
In the order under appeal, the President of the General Court dismissed that application.
15
In that order, the President of the General Court began by examining whether the condition relating to urgency had been satisfied.
16
In the first place, he determined the criteria on the basis of which that condition had to be assessed.
17
In that regard, he first of all noted, in paragraph 27 of the order under appeal, that, in the area of public procurement, proof alone of the seriousness of the harm that would be caused by failure to suspend the operation of the decision at issue could, to the extent that there is a sufficiently serious prima facie case, be deemed sufficient to satisfy the condition relating to urgency. He noted, however, in paragraph 28 of that order, that the criteria for assessing the condition relating to urgency could be eased only during the pre-contractual phase, provided that the standstill period had been respected.
18
Next, he found, in paragraph 29 of the order under appeal, that, in the present case, the appellant had lodged its application for interim measures after the expiry of the standstill period and concluded, in paragraph 30 of that order, that there was no need to ease the criteria for assessing the condition relating to urgency.
19
Finally, in paragraphs 31 to 38 of that order, after taking the view that, from the beginning of the standstill period, the appellant had at its disposal sufficient information to enable it to bring an application for interim measures, in the absence of which it was appropriate not to undertake a purely mechanical application of the standstill period, he confirmed that the criteria for assessing the condition relating to urgency could not be eased.
20
In the second place, in paragraphs 39 to 81 of the order under appeal, the President of the General Court examined the heads of damage pleaded by the appellant and considered that, although the appellant was able to establish the risk of serious harm occurring, it had not, however, demonstrated that that harm was irreparable.
21
In the light of those factors, the President of the General Court held, in paragraph 82 of that order, that, since the appellant had not established that the condition relating to urgency was satisfied, the application for interim measures had to be dismissed, without it being necessary to rule on the existence of a prima facie case or to weigh up the interests involved.
Forms of order sought by the parties
22
The appellant claims that the Court should:
–
set aside the order under appeal;
–
give final judgment on the application for interim measures or, in the alternative, refer the case back to the General Court; and
–
order the Commission to pay the costs relating to the appeal proceedings.
23
The Commission contends that the Court should:
–
dismiss the appeal;
–
give final judgment on the application for interim measures or, in the alternative, refer the case back to the General Court; and
–
order the appellant to pay the costs.
Procedure before the Court of Justice
24
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 covered by tender procedure DIGIT/A 3/PR/2019/010 until the adoption of an order terminating the present interlocutory proceedings or an order ruling on the present appeal, whichever is the earlier.
25
In addition, by order of the President of the Court of 7 September 2022, Telefónica de España v Commission (C‑478/22 P(R)-R, not published, EU:C:2022:676), BT Global Services Belgium BV was granted leave to intervene in Case C‑478/22 P(R)-R in support of the form of order sought by the Commission.
The appeal
Argument
26
The appellant relies on two grounds in support of its appeal, alleging, first, an error of law and an infringement of Article 47 of the Charter of Fundamental Rights of the European Union as regards the assessment of the condition relating to urgency in the area of public procurement and, second, an error of law in the assessment of the irreparable nature of the harm.
27
By the first part of its first ground of appeal, the appellant submits that the President of the General Court was wrong to consider, in paragraph 30 of the order under appeal, that the criteria for assessing the condition relating to urgency laid down in the order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275) should be eased only with regard to actions brought before the expiry of the standstill period.
28
It argues that, in order to reconcile the guarantee of effective judicial protection with the principle of legal certainty, the criteria for assessing the condition relating to urgency must be eased throughout the period preceding the conclusion of the contract with the successful tenderer. That solution is clear from the order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275), which refers to the ‘pre-contractual phase’ and which stipulates that the criteria for assessing the condition relating to urgency should no longer be eased where the contracting authority has concluded the contract with the successful tenderer.
29
Therefore, the expiry of the standstill period does not prevent the criteria for assessing the condition relating to urgency from being eased. It is only when, first, the contract has been concluded and, second, the standstill period has been observed that the unsuccessful tenderer is deprived of the benefit of the easing of the applicable conditions for assessing the existence of urgency. The obligation to comply with a standstill period thus does not constitute a mechanism intended to restrict the judicial protection enjoyed by unsuccessful tenderers; rather it is an additional procedural requirement laid down for their benefit.
30
The criteria for assessing the condition relating to urgency should therefore be eased where, as in the present case, the contracting authority has decided to delay the conclusion of the contract, in particular because it wishes to reconsider the award of a public contract in the light of observations made by an unsuccessful tenderer.
31
In response, the Commission submits, in the first place, that the first part of the first ground of appeal is inadmissible in so far as it is based on arguments which were not submitted at first instance. In its application for interim measures, the appellant relied on serious and irreparable harm and merely cited the case-law relating to the easing of the criteria for assessing the condition relating to urgency in the area of public procurement without requesting its application. Furthermore, it did not state that the seriousness of the harm was sufficient to demonstrate the existence of urgency, nor did it mention the existence of a particularly serious prima facie case.
32
In the second place, the Commission contends that the first part of the first ground of appeal is ineffective. It submits that the easing of the criteria for assessing the condition relating to urgency laid down in the order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275), is subject to the existence of a particularly serious prima facie case and that that requirement is not satisfied in this instance. Therefore, even if the criteria for assessing the condition relating to urgency could be eased throughout the pre-contractual period, it does not follow that the condition relating to urgency was satisfied in this instance.
33
In the third place, the first part of the first ground of appeal is, in any event, unfounded.
34
Thus, in the order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275), the intention of the Court of Justice was not to create a broad derogation from the condition relating to urgency, but to limit the scope of the derogation laid down by the General Court in the area of public procurement.
35
From that point of view, the weighing up of the interests of all the parties concerned justifies that derogation being applied only to actions brought during the standstill period, since the contracting authority and the successful tenderer have a right to legal certainty and the protection of their legitimate interest in the rapid conclusion of the contract, as is confirmed by the case-law of both the Court of Justice and the General Court. It follows, moreover, from the judgment of 11 September 2014, Fastweb (C‑19/13, EU:C:2014:2194), and from the order of the Vice-President of the Court of Justice of 1 December 2021, Inivos and Inivos v Commission (C‑471/21 P(R), EU:C:2021:984), that the purpose of the standstill period is to allow legal proceedings to be brought to challenge the award of a public contract before the contract is concluded.
36
Moreover, the appellant’s argument implies that the period within which interim measures may be applied for is subject to the discretion of one party, namely the contracting authority, which misconstrues the mandatory nature of the time limits for bringing an action. That solution also infringes the principle of legal certainty, in that it prevents the contracting authority and the successful tenderer from ascertaining the date on which the criteria for assessing the condition relating to urgency at issue can no longer be eased.
37
Therefore, since the application for interim measures was lodged after the expiry of the standstill period, the President of the General Court correctly held that it was for Telefónica de España to establish the existence of serious and irreparable harm.
Assessment
Admissibility of the first part of the first ground of appeal
38
According to settled case-law of the Court of Justice, since, in an appeal, the jurisdiction of the Court of Justice is confined to a review of the findings of law on the pleas and arguments debated before the General Court, a party cannot raise for the first time before the Court of Justice pleas or arguments that it did not put forward before the General Court (order of the Vice-President of the Court of Justice of 24 May 2022, Puigdemont i Casamajó and Others v Parliamentand Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 73 and the case-law cited). However, an appellant is entitled to lodge an appeal relying, before the Court of Justice, on grounds which arise from the General Court’s decision under appeal itself and which seek to criticise, in law, its correctness (see, to that effect, judgment of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 47 and the case-law cited).
39
In the present case, it is true that Telefónica de España sought to demonstrate, in the application for interim measures, that the harm which it alleged was not only serious but also irreparable, when such proof is not necessary in order to establish that the condition relating to urgency is satisfied, where the criteria for assessing that condition must be eased in accordance with the order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275).
40
Nevertheless, it is important to point out that, in order to be able to assess whether that condition was satisfied, the President of the General Court necessarily had to determine the criteria on the basis of which that assessment must be conducted.
41
Therefore, given that the application for interim measures related to a decision adopted in the area of public procurement, it was for the President of the General Court to determine, as he did, moreover, in paragraphs 25 to 38 of the order under appeal, whether he had to assess the condition relating to urgency solely on the basis of the criteria generally applicable in interim proceedings relating to the risk of serious and irreparable harm occurring, or whether, on the contrary, he had to apply the alternative criteria resulting from the order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275), that is to say the existence of a particularly serious prima facie case and a risk of serious harm occurring.
42
In those circumstances, it appears, without it being necessary to determine whether the reference to those alternative criteria in the application for interim measures must be understood as expressing the intention of Telefónica de España to rely on them, that the appellant is, in any event, justified in claiming, in support of its appeal, that the President of the General Court erred in law as regards the criteria on the basis of which the assessment of the condition relating to urgency had to be carried out.
43
Consequently, the inadmissibility of the first part of the first ground of appeal, alleged by the Commission, must be rejected.
Merits of the first part of the first ground of appeal
44
As a preliminary point, it should be recalled that Article 156(4) of the Rules of Procedure of the General Court provides that 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. Thus, according to settled case-law of the Court of Justice, the court hearing an application for interim relief may order the suspension of operation of an act, or 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 interests of the party making the application, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that applications for interim measures must be dismissed if any one of them is not satisfied. The court hearing an application for interim relief must also, where appropriate, weigh up the interests involved (order of the Vice-President of the Court of Justice of 16 September 2022, OT v Council, C‑526/22 P(R), not published, EU:C:2022:701, paragraph 32 and the case-law cited).
45
In particular, as is apparent from the case-law of the Court of Justice and as the President of the General Court noted, in essence, in paragraph 24 of the order under appeal, the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future decision on the substance, in order to ensure that there is no lacuna in the legal protection provided by the EU judicature. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm to the party seeking the interim relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering such harm. Although, in order to establish the existence of serious and irreparable harm, it is not necessary for the occurrence and imminence of the harm to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the party seeking interim measures is nevertheless required to prove the facts which form the basis of its claim that there is a genuine risk of such harm occurring (order of the Vice-President of the Court of Justice of 16 September 2022, OT v Council, C‑526/22 P(R), not published, EU:C:2022:701, paragraph 33 and the case-law cited).
46
However, the Court has held that, for the purposes of ruling on the condition relating to urgency in an application for interim measures relating to a contract awarded by the European Union, it was necessary to take account of the expression of the general principle of the right to an effective remedy in the area of public procurement contained in the provisions of Directive 89/665 (see, to that effect, orders of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 28, and of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraph 69).
47
Since it is apparent from the provisions of that directive that effective judicial protection requires that unsuccessful tenderers have a real possibility of bringing an action, including one seeking interim measures, it follows from the consideration of the general principle of the right to an effective remedy, as embodied in that directive, that, as the President of the General Court observed in paragraph 26 of the order under appeal, when an unsuccessful tenderer is able to show that there is a particularly serious prima facie case, it cannot be required, in order to demonstrate that the condition relating to urgency is satisfied, to establish that the rejection of its application for interim measures risks causing it irreparable harm (see, to that effect, orders of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraphs 29 and 41, and of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraphs 65 and 70).
48
Yet, where they take account of the provisions of a directive laying down a general principle of EU law, the EU Courts cannot disregard the content of those provisions, notwithstanding the fact that they do not apply as such in the case in question. More particularly, to the extent that it is apparent from the provisions of such a directive that the EU legislature sought to establish a balance between the different interests involved, the EU Courts must take account of that balance in their application of the general principle thus laid down (see, to that effect, orders of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 31, and of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraph 71).
49
In that regard, the second subparagraph of Article 2(7) of Directive 89/665 is particularly relevant for the purposes of determining the scope for easing the criteria for assessing the condition relating to urgency referred to in paragraph 47 above (see, to that effect, orders of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 33, and of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraph 72).
50
That provision states that a Member State may provide that, after the conclusion of a contract in accordance, inter alia, with Article 2a of that directive, the powers of the body responsible for review procedures are to be limited to awarding damages to any person harmed by an infringement.
51
That provision has two consequences for the court hearing an application for interim measures relating to a contract awarded by the European Union.
52
First, besides the fact that it is generally apparent from the settled case-law of the Court of Justice that, within the framework of Article 2 of Directive 89/665, an unsuccessful tenderer must have a real possibility of making an application for interim measures until the conclusion of the contract (see, to that effect, judgments of 24 June 2004, Commission v Austria, C‑212/02, not published, EU:C:2004:386, paragraph 23, and of 3 April 2008, Commission v Spain, C‑444/06, EU:C:2008:190, paragraph 39), it appears that, by the second subparagraph of Article 2(7) of that directive, the EU legislature distinguished the period prior to the conclusion of the contract, during which the unsuccessful tenderer must have a genuine possibility of obtaining, inter alia, interim measures, from the period after the conclusion of the contract, during which it is possible to limit the powers of the body responsible for the review procedures to awarding damages (see, to that effect, judgment of 28 October 1999, Alcatel Austria and Others, C‑81/98, EU:C:1999:534, paragraph 37).
53
The fact that the interlocutory judge takes the second subparagraph of Article 2(7) of that directive into consideration means, therefore, that the criteria for assessing the condition relating to urgency is to be eased only in respect of applications for interim measures made during the pre-contractual phase (see, to that effect, order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 38).
54
Thus, throughout the period prior to the conclusion of the contract, the criteria for assessing the condition relating to urgency must be eased in order to ensure that obtaining interim measures is not practically impossible (see, to that effect, order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 30), whereas, throughout the period following the conclusion of the contract, the limitations which may be imposed on the judicial protection of the unsuccessful tenderer mean that the latter no longer benefits, in principle, from that easing of the criteria for assessing the condition relating to urgency.
55
That limitation in time of the easing of the criteria for assessing the condition relating to urgency makes it possible to accommodate the interests of the unsuccessful tenderer with those of the contracting authority and the successful tenderer (see, to that effect, order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 34), in so far as the conclusion of the contract gives rise to reciprocal obligations between the contracting authority and the successful tenderer which justify, in accordance with the principle of legal certainty, a strengthening of the protection afforded to the latter against challenges by third parties to the contract.
56
Second, it follows from Article 2(7) of Directive 89/665 that, after the conclusion of the contract, the powers of the body responsible for the procedures referred to in that provision may be limited, provided that the contract has been concluded in accordance with Article 2a of that directive, that is to say after the expiry of a suspension period.
57
Like the suspension period provided for in Article 2(a) of Directive 89/665, the standstill period referred to in Article 175 of Regulation 2018/1046 is intended to ensure that the contracting authority and the successful tenderer, who wish to make the consequences of the award decision irreversible, do not proceed very quickly to conclude the contract and thereby seriously undermine the judicial protection which the unsuccessful tenderer must receive (see, by analogy, judgment of 14 July 2022, EPIC Financial Consulting, C‑274/21 and C‑275/21, EU:C:2022:565, paragraph 63).
58
Therefore the purpose of the standstill period is not to limit the judicial protection of the unsuccessful tenderer in order to protect the interests of the contracting authority and the successful tenderer; rather it is intended to ensure that that protection is effective.
59
From that perspective, the expiry of the standstill period is relevant for the interlocutory judge only in so far as the limitation to the pre-contractual period of the applicability of the easing of the criteria for assessing the condition relating to urgency at issue is only necessary in a situation where the conclusion of the contract took place after that period has expired (see, to that effect, order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraphs 42, 57 and 62).
60
Accordingly, the expiry of the standstill period cannot be regarded as constituting the end of the period during which extended judicial protection must be guaranteed to the unsuccessful tenderer and during which, consequently, the criteria for assessing the condition relating to urgency must be eased.
61
Contrary to what the Commission submits, that solution is not such as to prevent the contracting authority and the successful tenderer from swiftly concluding a contract, since, in practice, the unsuccessful tenderer will be able to bring, during the period between the expiry of the standstill period and the conclusion of the contract, an application for interim measures which must be examined in the light of the relaxed criteria for assessing the condition relating to urgency only in situations where the contracting authority and the successful tenderer have chosen not to conclude that contract swiftly, when they had the opportunity to do so.
62
Furthermore, that solution has no effect on the time limits for bringing proceedings and cannot therefore be regarded as undermining their mandatory nature. Nor does it introduce any uncertainty, on the part of the contracting authority and the successful tenderer, in relation to the duration of the period in which the condition relating to urgency will be assessed in the light of relaxed criteria, since that period will end on the date on which they have chosen to conclude the contract.
63
Consequently, as the President of the General Court noted in paragraph 28 of the order under appeal, the criteria for assessing the condition relating to urgency in public procurement matters are eased only during the pre-contractual phase, provided that the standstill period has been respected (see, to that effect, order of the Vice-President of the Court of Justice of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraph 66).
64
In the present case, since it is common ground that Telefónica de España lodged its application for interim measures before the conclusion of the contract, the expiry date of the standstill period was therefore entirely irrelevant for the purposes of determining the criteria for assessing the condition relating to urgency.
65
It follows that the President of the General Court erred in law and did not draw the appropriate conclusions from his own statements in considering, in paragraphs 29 and 30 of the order under appeal, that, since that application for interim measures had been lodged after the expiry of the standstill period, the criteria for assessing the condition relating to urgency at issue did not have to be eased when that application for interim measures was examined.
66
Nor was the finding of the President of the General Court in paragraph 38 of the order under appeal that the appellant had at its disposal, from the beginning of the standstill period, sufficient information to bring an application for interim measures, such as to justify the fact that those criteria for assessing the condition relating to urgency should not be eased in the present case, since such a circumstance is relevant, for the interlocutory judge, only in the event that the contract had already been concluded, after the expiry of the standstill period, on the day the application for interim measures was made (see, to that effect, order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraphs 49, 50 and 57).
67
It follows that the first part of the first ground of appeal is well founded.
68
The error of law committed by the President of the General Court in determining the criteria for assessing the condition relating to urgency removes any justification for the assessment in paragraph 82 of the order under appeal that Telefónica de España had not established that that condition had been met.
69
It is apparent from the case-law cited in paragraph 47 above that, where the criteria for assessing the condition relating to urgency must be eased, that condition is satisfied where the unsuccessful tenderer is able to demonstrate the existence of a particularly serious prima facie case and the risk of serious harm occurring.
70
It follows from paragraph 64 of the order under appeal that Telefónica de España had demonstrated the existence of such a risk.
71
Accordingly, the President of the General Court was wrong to consider that the condition relating to urgency had not been satisfied, without having first verified whether the prima facie case relied on by Telefónica de España was particularly serious.
72
It follows that the first part of the first ground of appeal must be upheld and that the order under appeal must be set aside, without it being necessary to rule on the second part of the first ground of appeal or on the second ground of appeal.
The application for interim measures before the General Court
73
In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the Court of Justice sets aside a decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. That provision also applies to appeals brought under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union (order of the Vice-President of the Court of Justice of 24 May 2022, Puigdemont i Casamajó and Others v Parliament and Spain, C‑629/21 P(R), EU:C:2022:413, paragraph 172 and the case-law cited).
74
In the present case, the President of the General Court dismissed the application for interim measures without examining the pleas put forward by Telefónica de España in order to demonstrate that there was a prima facie case.
75
Since it follows from paragraph 71 above that it is necessary, in order to rule on the application for interim measures, to examine those pleas, which concern various aspects of tender procedure DIGIT/A 3/PR/2019/010, the case must be referred back to the General Court in order to determine whether they establish a particularly serious prima facie case.
Costs
76
Since the case is being referred back to the General Court, it is appropriate to reserve the costs.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1.
The order of the Vice-President of the General Court of the European Union of 14 July 2022, Telefónica de España v Commission (T‑170/22 R, not published, EU:T:2022:460) is set aside.
2.
The case is referred back to the General Court of the European Union.
3.
The costs are reserved.
Luxembourg, 22 November 2022.
A. Calot Escobar
Registrar
L. Bay Larsen
Vice-president
(
*1
)	Language of the case: English.