ORDER OF THE VICE-PRESIDENT OF THE COURT
3 May 2023 (*)
(Appeal – Interim relief – Public procurement – Application for interim measures – Withdrawal of the contested decision – No need to adjudicate)
In Case C‑141/23 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 8 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, represented by L. André and M. Ilkova, acting as Agents,
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 appeal, Telefónica de España SA seeks to have set aside 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, in essence, an order that the European Commission, inter alia, suspend the award of the contracts in the context of the call for tenders DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’ until the General Court has given a final ruling on the main action and suspend the signing of a contract under that call for tenders.
Background to the dispute
2        The background to the dispute is set out in paragraphs 2 to 11 of the order under appeal. For the purposes of the present proceedings, it may be summarised as follows.
3        On 23 May 2019, by a contract notice published in the Official Journal of the European Union, the Commission launched the call for tenders DIGIT/A 3/PR/2019/010. The subject of that call for tenders is the conclusion of an interinstitutional framework contract with the successful tenderer for the provision of a secure and highly available network infrastructure (‘the framework contract’).
4        On 22 July 2020, a consortium, composed of the appellant and two other operators, submitted a tender under that tendering procedure.
5        On 18 January 2022, the Commission adopted the decision to award contracts in that tendering procedure (‘the award decision’) in accordance with the recommendations of the evaluation committee.
6        By letter of 21 January 2022, the Commission informed the appellant that the 10‑day standstill period provided for in 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, (EU) No 283/2014, and Decision 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), during which the contracting authority must refrain from concluding the contract with the successful tenderer, would start to run on the day following the date on which that letter was sent and that, if requests for suspension or observations on that letter 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 letter, that the submission of observations on the award procedure could have neither the object nor the effect of suspending or extending the standstill period.
7        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.
8        On 1 February 2022, the Commission informed all tenderers that, in view 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 award decision.
The procedure before the General Court, the procedure before the Court of Justice and the order under appeal
9        By application lodged at the General Court Registry on 31 March 2022, Telefónica de España brought an action for annulment of the Commission’s decision of 21 January 2022 relating to the call for tenders DIGIT/A 3/PR/2019/010, informing the appellant that its tender had not been successful in the public procurement procedure and announcing the imminent signature of a contract with the successful tenderer.
10      By separate document lodged at the General Court Registry on the same day, the appellant brought an application for interim measures seeking an order that the Commission, inter alia, suspend the award of the contracts in the context of the call for tenders DIGIT/A 3/PR/2019/010 until the General Court has given a final ruling on the main action and suspend the signing of a contract in respect of that call for tenders.
11      By 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 dismissed that application.
12      By application
lodged at the Registry of the Court of Justice on 17 July 2022, the appellant brought an appeal against that order.
13      By 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.
14      By the order under appeal, the Vice-President of the General Court dismissed the application for interim measures brought by the appellant before the General Court, referred to in paragraph 10 of the present order.
15      In parallel with the bringing of the present appeal, the appellant, by document lodged at the Registry of the Court of Justice on 9 March 2023, brought an application for interim measures seeking, inter alia, an order that the Commission suspend the signing of a contract in the context of the call for tenders DIGIT/A 3/PR/2019/010.
16      By order of 14 March 2023, Telefónica de España v Commission (C‑141/23 P(R)‑R, not published), 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 tendering procedure DIGIT/A 3/PR/2019/010, until the adoption of the order terminating the interlocutory proceedings or ruling on the present appeal, whichever was the earlier.
17      On 5 April 2023, the Commission requested the Court to declare that there was no longer any need to adjudicate on the present appeal and to reserve the costs.
18      On 14 April 2023, Telefónica de España submitted its observations on that request.
On the need to adjudicate
Arguments
19      The Commission states that, by decision of 4 April 2023, the contracting authority cancelled the procurement procedure, pursuant to Article 171 of Regulation 2018/1046.
20      It argues that such a cancellation means that the award decision has completely disappeared from the EU legal order. Accordingly, Telefónica de España retains no advantage in seeking the suspension of that decision and therefore no longer has an interest in the continuation of the present appeal proceedings.
21      Telefónica de España considers that there is no longer any need to adjudicate on the appeal inasmuch as it seeks suspension of the award decision.
Assessment
22      In accordance with Article 149 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 190(1) of those rules, if the Court of Justice declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties and the Advocate General, decide to rule by reasoned order.
23      That provision must be applied in the context of the present appeal.
24      In accordance with the Court’s settled case-law, the interest in bringing proceedings – a condition of admissibility – must continue up until the Court’s ruling on the substance. Both the existence and the continuation of an interest in bringing proceedings presuppose that the appeal may, if successful, procure an advantage for the party bringing it (order of the Vice-President of the Court of 20 March 2023, Xpand Consortium and Others v Commission, C‑739/22 P(R), not published, EU:C:2023:228, paragraph 22).
25      In the present case, it is common ground that, on 4 April 2023, that is to say, after the present appeal was lodged, the Commission cancelled tendering procedure DIGIT/A 3/PR/2019/010, pursuant to Article 171 of Regulation 2018/1046.
26      The interim measures requested by Telefónica de España in its application for interim relief brought before the General Court sought to prevent the award and signature of a contract in the context of that tendering procedure.
27      Since the Commission can no longer, because of the cancellation of that tendering procedure, award or sign such a contract, the imposition of the interim measures referred to in the form of order sought in the application for interim measures would be devoid of any
effect
in practice.
28      In those circumstances, the setting aside of the order under appeal is not capable of procuring an advantage for Telefónica de España (see, by analogy, orders of the Vice-President of the Court of 30 March 2022, Girardi v EUIPO, C‑703/21 P(R), not published, EU:C:2022:250, paragraph 25, and of 20 March 2023, Xpand Consortium and Others v Commission, C‑739/22 P(R), not published, EU:C:2023:228, paragraph 28).
29      Accordingly, since Telefónica de España has lost its interest in continuing the proceedings for interim relief in the course of the proceedings, there is no longer any need to adjudicate on the present appeal.
Costs
30      Under Article 149 of the Rules of Procedure, which applies to appeals by virtue of Article 190 of those rules, where a case does not proceed to judgment the Court is to give a decision as to costs.
31      Under Article 142 of those rules, applicable to appeal proceedings by virtue of Article 184 thereof, where a case does not proceed to judgment the costs are to be in the discretion of the Court.
32      Since the fact that there is no need to adjudicate in the present case is attributable to the Commission, it must be ordered, in addition to bearing its own costs, to pay those incurred by Telefónica de España in the present appeal proceedings and in the interlocutory proceedings in Case C‑141/23 P(R)-R.
On those grounds, the Vice-President of the Court hereby orders:
1.      There is no longer any need to adjudicate on the appeal.
2.      In addition to bearing its own costs, the European Commission shall pay those incurred by Telefónica de España SA in the present appeal proceedings and in the interlocutory proceedings in Case C‑141/23 P(R)-R.
Luxembourg, 3 May 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
Vice-president
*      Language of the case: English.