Order of the President of the of the General Court of 25 May 2020 –

Isopix v Parliament

(Case T‑163/20 R and T‑163/20 RII)

(Application for interim relief – Public supply contracts – Provision of photography services – Application for suspension of operation of a measure – Partial manifest inadmissibility of the main action – Inadmissibility – Urgency – Prima facie case – Balancing of competing interests)

1. Application for interim relief – Suspension of operation of a measure – Admissibility conditions – Prima facie admissibility of the main action (Art. 278 TFEU; Rules of Procedure of the General Court, Art. 156(1) and (2)) (see paras 22-24)

2. Action for annulment – Actionable measures – Meaning – Measures producing binding legal effects – Measure of the Parliament rejecting a tenderer’s tender in the context of a public procurement – Assessment of whether or not that decision is definitive in the light of its contents and its context – Intermediary measure – Measure which cannot be regarded as having caused adverse effects – Inadmissibility (Art. 278 TFEU) (see paras 25-27, 33-36)

3. Application for interim relief – Suspension of operation of a measure – Interim measures – Conditions for grant – Serious and irreparable harm – Financial harm – Serious nature of the harm – Situation which could jeopardise the existence of the applicant company – Assessment in the light of the size and turnover of the undertaking and the situation of the group to which it belongs – Examination of the circumstances of each case (Arts 278 and 279 TFEU) (see paras 27-30, 33, 36)

4. Application for interim relief – Suspension of operation of a measure – Interim measures – Conditions for grant – Prima facie case – Urgency – Serious and irreparable harm – Cumulative nature – Balancing of all the interests involved – Order of examination and method of verification – Discretion of the court hearing the application for interim relief (Arts 278 and 279 TFEU; Rules of Procedure of the General Court, Art. 156(4)) (see paras 40, 41)

5. Application for interim relief – Suspension of operation of a measure – Conditions for grant – Urgency – Assessment in public procurement litigation – Serious harm – Sufficient in the case of a particularly serious prima facie case constituted by an obvious and serious illegality – Condition – Application for interim measures brought in the standstill period before conclusion of the contract with the successful tenderer (Art. 278 TFEU; Charter of Fundamental Rights of the European Union, Art. 47) (see paras 44-48)

6. Application for interim relief – Suspension of operation of a measure – Interim measures – Conditions for grant – Serious and irreparable harm – Irreparable nature of the harm – Assessment in public procurement litigation (Art. 268 TFEU) (see para. 50)

7. Application for interim relief – Suspension of operation of a measure – Conditions for grant – Prima facie case – Prima facie examination of the pleas in law put forward in support of the main action – Action against a measure of the Parliament rejecting a tenderer’s tender in the context of a public procurement – Pleas concerning impartiality and objectivity in performing the duties of a member of the assessment committee – Pleas revealing the existence of complex legal questions – Pleas not prima face unfounded (Art. 278 TFEU) (see paras 66, 69, 75, 76)

8. Application for interim relief – Suspension of operation of a measure – Conditions for grant – Balancing of all the interests involved – Suspension of implementation of a measure of the Parliament rejecting a tenderer’s tender in the context of a public procurement – Interest of the tenderer applicant in reserving the possibility to be awarded the contract at issue taking priority over the Parliament’s interest in ensuring continuity of services (Art. 278 TFEU) (see paras 77, 83, 84)

Re:

Applications under Articles 278 and 279 TFEU requesting, in Case T‑163/20 R, suspension of the operation of the Parliament’s decision of 24 March 2020 informing the applicant that its tender for public contract COMM/DG/AWD/2019/854 had not been accepted and that the contract had been awarded to another tenderer; and that the General Court order the Parliament to produce the tender analysis report and, in Case T‑163/20 R II, suspension of the operation of the Parliament’s decision of 17 April 2020 informing the applicant that its tender for public contract COMM/DG/AWD/2019/854 had been rejected on the ground that it did not fulfil the selection criteria relating to financial and economic standing.

Operative part

1. Operation of the European Parliament’s decision of 24 March 2020 informing Isopix SA that its tender for public contract COMM/DG/AWD/2019/854 had not been accepted and that the contract had been awarded to another tenderer is suspended.

2. The Parliament shall provide Isopix with a copy of the non-confidential version of the tender analysis report.

3. The application for interim relief in Case T‑163/20 R II is dismissed as inadmissible.

4. The orders of 3 April 2020, Isopix v Parliament (T‑163/20 R), and of 22 April 2020, Isopix v Parliament (T‑163/20 R II) are revoked.