ORDER OF THE VICE-PRESIDENT OF THE COURT
20 March 2023 (*)
(Appeal – Interim relief – Public procurement – Application for interim measures – Admissibility of new claims – Interest in bringing proceedings – Initiation of a new proceeding – Loss of subject matter of the application for interim measures put forward at first instance)
In Case C‑739/22 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 1 December 2022,
Xpand Consortium, established in Brussels (Belgium),
NTT Data Belgique SRL, established in Brussels,
Sopra Steria Benelux SA, established in Brussels,
Fujitsu Technology Solutions SA, established in Brussels,
represented by L. Lence de Frutos and M. Troncoso Ferrer, abogados,
appellants,
the other party to the proceedings being:
European Commission, represented by L. André, M. Ilkova and S. Romoli, 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 their appeal, Xpand Consortium, NTT Data Belgique SRL, Sopra Steria Benelux SA and Fujitsu Technology Solutions SA seek to have set aside the order of the President of the General Court of the European Union of 21 September 2022, Xpand Consortium and Others v Commission (T‑281/22 R, not published, ‘the order under appeal’, EU:T:2022:569), by which the President dismissed their application for 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 (‘the cancellation decision’).
Background to the dispute
2        The background to the dispute is set out in paragraphs 2 to 15 of the order under appeal. For the purposes of the present proceedings, it may be summarised as follows.
3        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 a call for tenders bearing the reference BUDG 19/PO/04. That call for tenders was divided into two lots.
4        On 26 January 2021, the appellants, as members of the consortium called ‘Xpand’, submitted their tender for Lot No 2. On 11 February 2022, the Commission informed them that that tender had been accepted following the procurement procedure.
5        On 3 March 2022, the Commission adopted the cancellation decision. By letter of the same date, the Commission informed the applicants that it had identified errors in the procurement documents, in particular that certain selection criteria did not comply with the applicable EU rules. That letter also stated that the contracting authority intended to launch a new procurement procedure for the contract at issue.
The action before the General Court and the order under appeal
6        By application lodged at the Registry of the General Court on 13 May 2022, the appellants brought an action for annulment of the cancellation decision.
7        By separate document lodged at the Court Registry on 10 June 2022, the appellants brought an application for interim measures, seeking an order requiring the Commission not to launch a new procedure for the award of a public contract with the same subject matter as tendering procedure BUDG 19/PO/04.
8        By the order under appeal, the President of the General Court dismissed that application on the ground that the condition relating to urgency was not satisfied.
Forms of order sought by the parties
9        The appellants claim that the Court should:
–        ‘cancel’ the order under appeal;
–        in the exercise of its unlimited jurisdiction, order the Commission to suspend tendering procedure BUDG/2022/OP/0010 (DIMOS VI) pending the decision of the General Court in Case T‑281/22; and
–        order the Commission to pay the costs of the proceedings at first instance and on appeal.
10      The Commission contends that the Court should:
–        dismiss the appeal; and
–        order the appellants to pay the costs.
Admissibility of the appeal
Arguments
11      The Commission contends that the appeal is inadmissible.
12      It maintains, first, that the appellants no longer have an interest in having the order under appeal set aside, since that setting aside is incapable of procuring an advantage for them. Although the sole purpose of their application at first instance was to prevent the Commission from launching a new procedure for the award of a public contract with the same subject matter as tendering procedure BUDG 19/PO/04, such a procedure was already launched by the Commission on 4 October 2022.
13      Second, the applicants’ form of order seeking to have the Commission ordered to suspend the tendering procedure BUDG/2022/OP/0010 (DIMOS VI) constitutes a new form of order, which should be rejected in accordance with Article 170(1) of the Rules of Procedure of the Court of Justice. That form of order
would also require the Court to assess matters of fact, which does not fall within its jurisdiction in the context of an appeal.
14      The applicants submit that they still have an interest in obtaining interim measures. The purpose of their application for interim measures was to prevent a new procurement procedure with the same subject matter as tendering procedure BUDG 19/PO/04 from being awarded to another candidate, in order to preserve the full effectiveness of the forthcoming decision in Case T‑281/22.
15      They add that their initial claims are not based on tendering procedure BUDG/2022/OP/0010 (DIMOS VI) because, on the date on which their application for interim measures was lodged, that procedure had not yet been launched and that, in any event, it would have been impossible for them in practice to refer to each stage of a potential new tendering procedure.
Assessment
16      In the first place, the form of order seeking to have the Court order the Commission to suspend tendering procedure BUDG/2022/OP/0010 (DIMOS VI) must be rejected as inadmissible.
17      First of all, that form of order cannot be regarded as being capable of being made under Article 169(1) of the Rules of Procedure of the Court of Justice, since that provision provides that an appeal may seek only to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision.
18      Next, although Article 170(1) of those rules supplements Article 169(1) thereof, Article 170(1) provides that an appeal is to seek, in the event that it is declared well founded, the same form of order, in whole or in part, as that sought at first instance and is not to seek a different form of order.
19      By their forms of order sought at first instance, the appellants were asking the General Court solely to order the Commission not to launch a new public procurement procedure with the same subject matter as tendering procedure BUDG 19/PO/04.
20      Therefore, assuming that the form of order in the appeal seeking to have the Court order the Commission to suspend tendering procedure BUDG/2022/OP/0010 (DIMOS VI) must be understood as having been submitted in the event that the appeal is well founded, it must, in any event, be rejected, in so far as it constitutes a form of order which is new in relation to the form of order sought at first instance.
21      Lastly, nor can that new form of order sought be viewed as an application for interim measures brought under Article 160 of the Rules of Procedure of the Court of Justice, since Article 160(4) of those Rules of Procedure makes the admissibility of such an application subject to submission by separate document.
22      As regards, in the second place, the form of order seeking to have the order under appeal set aside, it should be borne in mind that, according to the Court of Justice’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 (see, to that effect, order of the Vice-President of the Court of 29 September 2016, Efler and Others v Commission, C‑400/16 P (R), not published, EU:C:2016:735, paragraph 14).
23      In the present case, it is common ground that, on 4 October 2022, that is to say, after the order under appeal was made and before the present appeal was lodged, the Commission launched a tendering procedure with the same subject matter as tendering procedure BUDG 19/PO/04.
24      Therefore, the possible granting of the interim measure referred to in the form of order sought in the application for interim measures, namely to order the Commission not to launch a new procedure for the award of a public contract with the same subject matter as tendering procedure BUDG 19/PO/04, would be devoid of any effect.
25      Furthermore, in the light of the wording of the form of order sought in that application, a fresh examination of it, which would be necessary if the order under appeal were set aside, would not allow the judge hearing the application for interim measures, without ruling ultra petita, to order the Commission to suspend tendering procedure BUDG/2022/OP/0010 (DIMOS VI), even if the case were referred back to the General Court.
26      In that regard, whilst it is true that, on the date on which their application for interim measures was lodged, namely 10 June 2022, the applicants could not seek the suspension of that tendering procedure launched on 4 October 2022, that fact cannot, in any event, lead to a broad interpretation of the forms of order sought in that application, since they have the option, under Article 160 of the Rules of Procedure of the General Court, to submit a second application for an interim measure based on new facts.
27      It follows that the application for interim measures was devoid of purpose as from the launch of tendering procedure BUDG/2022/OP/0010 (DIMOS VI).
28      In those circumstances, the setting aside of the order under appeal is not capable of procuring an advantage for the appellants (see, by analogy, order of the Vice-President of the Court of 29 September 2016, Efler and Others v Commission, C‑400/16 P (R), not published, EU:C:2016:735, paragraph 16).
29      Consequently, the forms of order put forward by the appellants seeking to have the order under appeal set aside are inadmissible.
30      It follows from the foregoing that the appeal must be dismissed in its entirety as inadmissible.
Costs
31      In accordance with Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to costs.
32      Under Article 138(1) of those rules of procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
33      Since the Commission has applied for costs against the appellants in relation to the appeal proceedings and the latter have been unsuccessful, the appellants must be ordered to pay the costs of the appeal proceedings.
34      As regards the costs of the proceedings at first instance, since the order under appeal was not set aside and the President of the General Court decided, in that order, to reserve those costs, it is for the General Court to rule on those costs, in accordance with Article 158(5) of its Rules of Procedure, in the decision on the main action.
On those grounds, the Vice-President of the Court hereby orders:
1.      The appeal is dismissed.
2.      Xpand Consortium, NTT Data Belgique SRL, Sopra Steria Benelux SA and Fujitsu Technology Solutions SA are ordered to pay the costs of the appeal proceedings.
Luxembourg, 20 March 2023.
A. Calot Escobar
L. Bay Larsen
Registrar
Vice-President
*      Language of the case: English.