ORDER OF THE VICE-PRESIDENT OF THE COURT

22 July 2022 ( )

(Interim relief – Articles 278 and 279 TFEU – Appeal – Application for suspension of operation and other interim measures – Public procurement – Article 160(7) of the Rules of Procedure of the Court of Justice)

In Case C‑478/22 P(R)‑R,

APPLICATION for suspension of operation and other interim measures under Articles 278 and 279 TFEU, brought on 17 July 2022,

Telefónica de España SAU, established in Madrid (Spain), represented by J. Blanco Carol and F. González Díaz, abogados, and P. Stuart, Barrister,

applicant,

the other party to the proceedings being:

European Commission,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

Order

1 By its application for interim measures, Telefónica de España SAU claims, pursuant to Articles 278 and 279 TFEU and Article 160(7) of the Rules of Procedure of the Court of Justice, that the Court of Justice should:

– order the suspension of operation of 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 call for tenders DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’, informing the applicant that its tender had not been successful in the procurement procedure and announcing the imminent signing of a contract with the successful tenderer (‘the contested decision’) and, secondly, an order requiring the European Commission to suspend the signing of that contract;

– order the Commission to suspend the award of contracts in the call for tenders DIGIT/A 3/PR/2019/010 pending a ruling from the General Court in Case T‑170/22;

– order the Commission to suspend the signing of a contract in that call for tenders;

– grant any other appropriate interim measures; and

– order the Commission to pay the costs.

2 That application has been made at the same time as Telefónica de España brought an appeal on 17 July 2022, pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, seeking to have the order under appeal set aside.

3 Under Article 160(7) of the Rules of Procedure, which is applicable to the procedure on appeal pursuant to Article 190(1) of those rules, the judge hearing an application for interim measures may grant that application even before the observations of the opposite party have been submitted, and that decision may be varied or cancelled even without any application being made by any party.

4 In accordance with the Court’s case-law, in particular where it is desirable in the interests of the proper administration of justice that the interlocutory proceedings are not deprived of their substance and effect, Article 160(7) of the Rules of Procedure permits the judge hearing an application for interim measures to adopt such measures, as a precaution, until either an order has been made terminating those interlocutory proceedings or until the main proceedings are terminated, if this should take place first (orders of the Vice-President of the Court of 4 October 2017, Wall Street Systems UK v ECB, C‑576/17 P(R)‑R, not published, EU:C:2017:735, paragraph 4, and of 7 March 2019, Trifolio-M and Others v EFSA, C‑163/19 P(R)‑R, not published, EU:C:2019:187, paragraph 4).

5 When assessing the need for such an order, the judge hearing the application for interim measures must examine the circumstances of the specific case at hand (orders of the Vice-President of the Court of 4 October 2017, Wall Street Systems UK v ECB, C‑576/17 P(R)‑R, not published, EU:C:2017:735, paragraph 5, and of 7 March 2019, Trifolio-M and Others v EFSA, C‑163/19 P(R)‑R, not published, EU:C:2019:187, paragraph 5).

6 In the present case, it is apparent from the material before the Court that, after receiving notification, dated 21 January 2022, of the contested decision, the applicant submitted to the Commission observations in which it identified a number of errors allegedly made in the evaluation of the tenders. On 1 February 2022, the Commission informed all the tenderers that it had decided to suspend the signing of the contract with the successful tenderer in that call for tenders, pending an additional examination. On 21 March 2022, the Commission informed the applicant that it had concluded that additional examination and that the authorising officer had confirmed his initial award decision.

7 By application lodged at the General Court Registry on 31 March 2022, the applicant brought an action for annulment of the contested decision. By separate document lodged at the General Court Registry on the same day, the applicant brought an application for interim measures seeking, inter alia, an order requiring the Commission to suspend the signing of a contract in the call for tenders DIGIT/A 3/PR/2019/010.

8 By order of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published), adopted under Article 157(2) of the Rules of Procedure of the General Court, the President of the General Court ordered the suspension of operation of the contested decision. By the order under appeal, the President of the General Court cancelled the order of 1 April 2022 and dismissed the application for interim measures brought by the applicant.

9 According to the applicant, the Court should grant the present application for interim measures so that the applicant is not caused serious and, as the case may be, irreparable harm.

10 If a contract were to be concluded in the call for tenders DIGIT/A 3/PR/2019/010 before a ruling is given on the appeal brought against the order under appeal, the applicant submits that it could no longer be awarded a contract in that context and that it would therefore suffer damage related to, inter alia, loss of profit, damage to its reputation, the lack of any available comparable opportunities and the relevant market structure being changed as a result of that contract being awarded to a competitor.

11 Furthermore, the applicant maintains that, in the order under appeal, the President of the General Court made a number of errors of law in the application of the condition relating to urgency.

12 In that regard, it should be borne in mind that, as the Court’s case-law makes clear, having regard to the requirements which follow from the effective judicial protection which must be guaranteed in public procurement matters, the view must be taken that, when an unsuccessful tenderer is able to show that there is a particularly serious prima facie case, it cannot be required to establish that the rejection of its application for interim measures risks causing it irreparable damage, as otherwise the effective judicial protection which it enjoys pursuant to Article 47 of the Charter of Fundamental Rights of the European Union would be undermined in a manner that is both excessive and unjustified (order of the Vice-President of the Court of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraph 65 and the case-law cited).

13 That easing of the requirements applicable to the assessment of the existence of urgency, justified by the right to an effective judicial remedy, applies, however, only during the pre-contractual phase, provided that the 10-day standstill period laid down in Article 175(3) 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 No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) is respected (order of the Vice-President of the Court of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraph 66 and the case-law cited).

14 Since, by the appeal brought against the order under appeal, the applicant challenges, inter alia, the assessment of the President of the General Court that that easing of the requirements for assessing the existence of urgency is not applicable in the present case, it cannot be ruled out, before the Court of Justice takes a decision on that appeal, that it is sufficient for the applicant – in order to demonstrate the existence of urgency such as to justify the adoption of interim measures – to prove that the signing of a contract in the call for tenders DIGIT/A 3/PR/2019/010 would cause it serious damage. In addition, the applicant submits that the President of the General Court was wrong to find that the damage which it alleges is not irreparable.

15 Therefore, in view of the serious and, as the case may be, irreparable damage that might result from the signing of a contract in the call for tenders DIGIT/A 3/PR/2019/010, the present interlocutory proceedings would risk being deprived of all substance and effect if the Commission were able to sign that contract before the Court has assessed the need to grant interim measures.

16 Consequently, it is in the interests of the proper administration of justice to order the Commission, even before it has submitted its observations, to refrain from signing a contract in the call for tenders DIGIT/A 3/PR/2019/010 until the adoption of the order terminating the present interlocutory proceedings or ruling on the appeal in Case C‑478/22 P(R), whichever is the earlier.

On those grounds, the Vice-President of the Court of Justice hereby orders:

1. The European Commission shall refrain from signing a contract covered by tendering procedure DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’, until the adoption of the order terminating the present interlocutory proceedings or ruling on the appeal in Case C‑478/22 P(R), whichever is the earlier.

2. The costs are reserved.

Luxembourg, 22 July 2022.

A. Calot Escobar L. Bay Larsen