62014TO0383(02)_EN
Parties
Grounds
Operative part
Parties
In Case T‑383/14 R,
Europower SpA,
established in Milan (Italy), represented by G. Cocco and L. Salomoni, lawyers,
applicant,
v
European Commission,
represented by L. Cappelletti, L. Di Paolo and F. Moro, acting as Agents,
defendant,
supported by
CPL Concordia Soc. coop., established in Concordia Sulla Secchia (Italy), represented by A. Penta, lawyer,
intervener,
APPLICATION, in essence, for suspension of operation of the decision of 3 April 2014 in which the Commission rejected the tender submitted by Europower in tendering procedure JRC IPR 2013 C04 0031 OC for the construction and maintenance of a tri-generation plant with a gas turbine on the Ispra (Italy) site of its Joint Research Centre (JRC) (OJ 2013/S 137-237146), and awarded the contract to CPL Concordia, and consequently of all other subsequent decisions,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Grounds
Order (1)
Background to the dispute
1. On 17 July 2013, the European Commission published in the Official Journal of the European Union an Open Call for Tenders under reference JRC IPR 2013 C04 0031 OC, the object of which was the construction and maintenance of a tri-generation plant with a gas turbine on the Ispra (Italy) site of its Joint Research Centre (JRC). The time limit for receipt of tenders and the date of opening of tenders were fixed, following a corrigendum published in the Official Journal, at 15 and 21 November 2013 respectively. The document entitled ‘Administrative Annex’ in the Invitation to Tender stated that the contract would be awarded to the most economically advantageous tender established on the basis of its total cost and technical quality, that a maximum score of 80 points could be awarded to the total cost of the tender and a maximum score of 20 points to its technical quality.
2. On 21 November 2013, the Opening Committee opened the tenders. After it had been verified that they satisfied requirements, the tenders were evaluated by the committee appointed for that purpose, which issued its report on 21 March 2014.
3. By letter of 3 April 2014, the Commission informed the applicant, Europower SpA, that its tender had not been successful, since the final score awarded to it was lower than that obtained by the tender submitted by the intervener, CPL Concordia Soc. coop.
4. By letter of 7 April 2014, the applicant submitted a request for access to the following documents: the decision awarding the contract in question, the tender evaluation reports, the successful tender, the relative characteristics and advantages of the successful tender and the contract concluded or being concluded with the successful tenderer.
5. By letter of 11 April 2014, the Commission reiterated that the contract had been awarded to the intervener and communicated the characteristics of the successful tender and the scores it had obtained.
6. On 15 April 2014, the applicant requested, inter alia, copies of the documents referred to in the request for access of 7 April 2014 and stated that it was submitting a confirmatory application for access to the documents.
7. On 17 April 2014, the Commission replied to the applicant, pointing out that no information could be communicated to the applicant during the procurement procedure and that it could not be granted access to the tender documents until the procedure has ended, which occurs when the contract is signed with the selected operator.
Procedure and forms of order sought by the parties
8. By application lodged at the Court Registry on 30 May 2014, the applicant brought an action seeking, in essence, the annulment of the decision of 3 April 2014 in which the Commission rejected the tender which it had submitted in tendering procedure …, the decision in which the Commission awarded the contract to the intervener, … and the contract itself …
9. By a separate document, lodged at the Court Registry on 22 July 2014, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:
– order suspension of the operation of the decision to reject the applicant’s tender, the decision to award the contract to the intervener, and, consequently, the subsequent decisions;
– take any other measure necessary to ensure the protection sought in the application for interim measures.
10. In its observations on the application for interim measures, which were lodged at the Court Registry on 7 August 2014, the Commission contends that the President of the Court should:
– dismiss the application for interim measures as inadmissible;
– in any event, dismiss the application for interim measures as unfounded;
– reserve the costs.
11. By order of 9 September 2014 the President of the General Court granted leave to intervene in these proceedings in support of the form of order sought by the Commission. The intervener lodged its observations on 23 September 2014 and the other parties lodged their observations on those observations, the Commission on 1 October 2014 and the applicant on 3 October 2014.
Law
General considerations
12. It is apparent from Articles 278 TFEU and 279 TFEU read in conjunction with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he 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.
13. Moreover, Article 104(2) of the Rules of Procedure 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 measures applied for. Accordingly, the judge hearing an application for interim relief may order suspension of operation and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law ( fumus boni juris ) 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, so that an application for interim measures must be dismissed if either of them is absent (order of 14 October 1996 in SCK and FNK
v Commission, C‑268/96 P(R), ECR, EU:C:1996:381, paragraph 30).
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15. In the present case, in view of the special role of interim procedures in public contract cases and of the legal framework established by the EU legislature concerning public procurement procedures conducted by the awarding authorities of the Member States (order of 4 December 2014 in Vanbreda Risk & Benefits v Commission, T‑199/14 R, ECR (Extracts), EU:T:2014:1024, paragraphs points 16 to 20 and 157 to 162 and the case-law cited), it is necessary to examine, first of all, whether the applicant adduces sufficient evidence to establish the existence of a prima facie
case.
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Prima facie case
17. With regard to the requirement that a prima facie
case must be established, it should be pointed out that this is satisfied where there is, at the stage of the interlocutory proceedings, a major legal disagreement whose resolution is not immediately obvious, so that the action is not prima facie
without reasonable substance (see to that effect orders of 13 June 1989 in Publishers Association
v Commission, 56/89 R, ECR, EU:C:1989:238, paragraph 31, and 8 May 2003 in Commission
v Artegodan and Others, C‑39/03 P-R, ECR, EU:C:2003:269, paragraph 40). Since the purpose of the interim proceedings is to guarantee that the final decision to be taken is fully effective, in order to avoid a lacuna in the legal protection ensured by the Union Court, the court hearing the application for interim relief must restrict itself to assessing ‘ prima facie ’ the merits of the grounds put forward in the main proceedings in order to ascertain whether there is a sufficiently large probability of success of the action (orders of 19 December 2013 in Commission
v Germany, C‑426/13 P(R), ECR, EU:C:2013:848, paragraph 41, and 8 April 2014 in Commission
v ANKO, C‑78/14 P-R, ECR, EU:C:2014:239, paragraph 15).
18. In the present case, the applicant raises five pleas in support of the application for suspension of operation. By the first plea, it considers, in essence, that the successful tenderer did not satisfy the technical requirements specified in the tender documents, since it could not use the capacities of other entities in order to satisfy those requirements. By the second plea, it maintains, in essence, that the score awarded to the successful tenderer for the declared guaranteed power supply is unlawful. By the third plea, it claims, in essence, that the procedures for awarding the contract were carried out in a single sitting in infringement of the principles governing public procurement procedures. By the fourth plea, it complains, in essence, that the Commission refused to provide it with certain documents and information. Finally, by the fifth plea, it disputes, in essence, the regularity of the composition of the Tender Opening Committee and the appointment of the Evaluation Committee.
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The second, third, fourth and fifth pleas raised by the applicant
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– The fourth and fifth pleas, alleging refusal of access to the tender documents
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46. Consequently, it is apparent from an analysis of the second, third, fourth and fifth pleas raised by the applicant that they do not establish a prima facie
case.
The first plea, alleging that the successful tenderer failed to satisfy the technical requirements specified in the tender documents
47. The applicant maintains that the successful tenderer did not satisfy the minimum technical requirements set out in the relevant tendering procedure documents. In particular, the intervener did not satisfy the selection criterion in point III.2.3(c) of the contract notice since, on the one hand, that undertaking had not itself constructed at least two combined power plants with a capacity of at least 8 MW and, on the other hand, that undertaking could not use the capacity of other entities in order to fulfil that criterion. According to the applicant, the tenderer was required, under the technical specifications, to provide a list of plants similar to those which were the object of the contract and constructed directly by the tenderer undertaking.
48. In that regard, it should be stated, first of all, that the terms of the contract notice relating to the conditions for participating in the tendering procedure at issue expressly provide that the tenderer may use other economic operators. In that event, in order to satisfy the selection criteria, the contract notice states that the documents and information required in the section relating to the situation of economic operators must be produced by each of those operators.
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52. It therefore appears, at first sight, that the contract notice allowed the intervener to use another entity to satisfy the conditions concerning technical capacity, and did not have to produce proof of constructions that it had carried out itself.
53. The fact remains that, as the applicant points out, it is stated, in the fifth paragraph of point 12 of the technical specifications, that ‘[t]he technical offer must also be accompanied by the general and technical information expressly required in the letter of invitation to tender, including at least: a list of similar plants constructed directly by the tenderer … indicating the main characteristics of each’.
54. In that regard, it should be pointed out that the provision in the fifth paragraph of point 12 of the technical specifications, which contains the instruction referred to by the applicant, does not appear to have been inserted with the aim of restricting the conditions for participation in the tendering procedure at issue by adding selection criteria. On the contrary, that provision appears to stress the importance of enclosing with the technical information certain information already expressly required by the contract notice in order to assess the tenderer’s technical capacity.
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57. It is in the light of these considerations that the scope of the instruction on which the applicant’s first plea is based must be examined. The first piece of information contained in the fifth paragraph of point 12 of the technical specifications, namely the ‘list of similar plants constructed directly by the tenderer, including auxiliary civil engineering equipment, indicating the main characteristics of each’ seems to refer to point III.2.3(c) of the contract notice which concerns the ‘list of the principal works similar to the main object of this contract notice, performed over the past 10 years, stating the values, the electrical capacity, the dates or periods in which they were carried out, and the names of the public and private recipients’. It is stated that ‘[f]or each works project, the final inspection certificate or other document providing proof of correct installation (e.g. final invoice) must be provided’ and that ‘at least 2 of the said works projects must relate to combined power plant construction with a capacity of at least 8 MW’. A comparison of the two formulations appears to justify ruling out, a priori, the applicant’s interpretation, which favours a link between the lex generalis and the lex specialis since, although the formulation used in the technical specifications contains the term ‘directly’ whic h might seem to be a defining point, that formulation is, in other regards, much vaguer than the formulation used in the contract notice. In fact, there is no reference to time in the first formulation. Moreover, this latter formulation seems to authorise an interpretation other than that proposed by the applicant. It may be understood that such a list must be provided if, and only if, the tenderer has carried out that type of work directly. Otherwise, that list does not have to be produced, because it may not exist, but that does not prevent the tenderer from participating in the call for tenders since it may satisfy the conditions for participating laid down in the contract notice by using third parties.
58. It is apparent from this analysis that the information contained in the fifth paragraph of point 12 of the technical specifications may be interpreted as referring to the selection criterion formulated in point III. 2.3(c), (d) and (e) of the contract notice and as providing specific details as to the presentation of the information required (indication of proximity, and confirmation that installations have been carried out directly by the tenderer).
59. However, at this stage, the interpretation suggested by the applicant cannot be completely excluded, particularly because, in its observations, the Commission provides no explanation of the meaning of the term ‘directly’ and the reasons for its presence.
60. Therefore, the uncertainty as to the interpretation to be given to the presence of that term and its impact on the regularity of the procedure at issue leads the national court to conclude that there is a major legal disagreement whose solution is not immediately obvious, so that the action is not, prima facie, without reasonable substance (see, to that effect, the order of 10 September 2013 in Commission v Pilkington Group, C‑278/13 P(R), ECR, EU:C:2013:558, paragraph 67 and the case-law cited).
61. In that regard however, it must be pointed out that in the very specific area of public procurement proceedings, it must be held that, if the unsuccessful tenderer manages to establish a very reasonable prima facie
case, it cannot be required to prove that the dismissal of its application for interim measures risks causing it irreparable damage, if the effective judicial protection which it enjoys under Article 47 of the Charter of Fundamental Rights of the European Union is not to be excessively and unjustifiably limited. A prima facie case is constituted where it reveals a sufficiently manifest and serious illegality the reduction or expansion of the effects of which must be prevented as soon as possible, unless this is definitively precluded by the balancing of the interests involved. In these exceptional circumstances, evidence of the seriousness of the harm which would be caused if application of the contested decision is not suspended suffices, on its own, to fulfil the condition relating to urgency, in view of the need to negate the effectiveness of an illegality of that nature (order in Vanbreda Risk & Benefits
v Commission, cited in paragraph 15 above, EU:T:2014:1024, paragraph 162).
62. In the present case, however, examination of the second, third, fourth and fifth pleas has not led to the conclusion that there is a particularly reasonable prima facie
case ... Similarly, the examination of the first plea has revealed only uncertainty leading the national court to consider that this plea was not entirely without relevance.
63. It follows that the behaviour and decisions adopted by the Commission in this case cannot be considered, in these proceedings, as sufficiently manifest and serious illegalities of EU law for it to be necessary to prevent them producing effects in the future, without the applicant being required to show that the harm it would suffer if the contested measure were not suspended would be irreparable.
64. Therefore, since the analysis of the pleas raised in support of the application for suspension of operation does not lead to the conclusion that there is a particularly reasonable prima facie
case, the condition relating to urgency must be examined in order to determine whether the applicant has established the existence both of the seriousness and the irreparability of the harm it claims is likely to occur.
Urgency
65. It has consistently been held that the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for those measures. It is for that party to adduce solid evidence that it cannot wait for the outcome of the main proceedings without having to suffer personally harm of that kind (order of 19 September 2012 in Greece v Commission, T‑52/12 R, ECR, EU:T:2012:447, paragraph 36 and the case-law cited).
66. In the present case, the applicant sets out, on scarcely more than one page of its application for interim measures, the reasons why it considers that it will suffer serious and irreparable damage owing to the contested measures. According to the applicant, the contract at issue is of fundamental importance to the very survival of its business, and a redundancy plan is being operated in the company on a similar site and the situation has forced it to lay off four persons (and to envisage doing the same to 2 others) since those persons cannot be reassigned to other sites. In that regard, it points out that recourse to mobility is an indication of the difficulty in which it finds itself as it has not been awarded the contract in question.
67. In that regard, it must be stated that the applicant’s argument concerning the importance of the contract at issue for the survival of its business is not supported by any concrete, specific evidence or accompanied by any detailed, certified document. … Therefore, it must be concluded that the applicant has failed to provide the slightest concrete evidence of its financial situation, which might allow the national court to assess the serious and irreparable nature of the alleged damage, even though such evidence is essential for assessing urgency and should have been presented in the application for interim measures itself.
68. As regards recourse to mobility, it must be stated that the planned redundancy scheme on a similar site was initiated by the applicant on 17 March 2014, that is before its tender for the contract at issue had been rejected. According to established case-law, urgency alleged owing to the risk of suffering serious and irreparable harm must be the consequence of the effects of the contested measure, which is not the situation in the present case, since recourse to mobility was not initiated owing to the operation of the contested measures. In that regard, it should be pointed out that, in its observations on the intervener’s observations, the applicant states that that plan was implemented, in terms of actual decisions, only after it learned that its tender for the contract at issue had been rejected. However, it is apparent from the documents in the case that the letters sent to the employees concerned on 18 June 2014, on which the applicant bases its arguments, are only the consequences of that scheme, which was undertaken before the decision to award the contract at issue and are therefore unconnected with that decision.
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70. In any event, and even if examination of the first plea raised by the applicant in support of its application for suspension of operation supports the conclusion that there is a particularly reasonable prima facie case, it must be stated that the applicant, in these proceedings, has not produced any evidence to show the seriousness of the harm it alleges.
71. In the light of the foregoing, it must be concluded that the applicant’s argument concerning satisfaction of the condition relating to urgency is manifestly unfounded.
72. Consequently, for all the foregoing reasons, this application for interim measures must be dismissed, and it is unnecessary to weigh up the interests involved or to rule on the matters raised by the Commission concerning the admissibility of the applicant’s claim for suspension of operation of the subsequent decisions.
(1) .
(1)
–	Only the paragraphs of the present order which the Court considers it appropriate to publish are reproduced here.
Operative part
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 24 March 2015.