Order of the President of the General Court of 31 August 2010 – Babcock Noell v Entreprise commune Fusion for Energy

(Case T-299/10 R)

Application for interim measures – Public contracts – Tendering procedure – Rejection of a tender – Application for suspension of operation of a measure – Prima facie case – Urgency – Balance of interests

1. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima facie case – Urgency – Serious and irreparable damage – Cumulative nature – Balancing of all the interests involved – Order of examination and method of verification – Discretion of the judge dealing with the application for interim relief (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 11-13)

2. Application for interim measures – Conditions for admissibility – Application – Formal requirements – Statement of the pleas in law establishing a prima facie case for granting the measures sought – Pleas in law not set out in the application – General reference to other documents – Inadmissibility (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Arts 44(1)(c) and 104(3)) (see paras 16-20, 30)

3. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Burden of proof (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see para. 33)

4. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Financial loss – Loss of an opportunity to be awarded and to perform the contract in the tendering procedure – Loss capable of full remedy in the context of the action in the main proceedings or an action for compensation – Not irreparable (Arts 268 TFEU, 278 TFEU, 279 TFEU and 340 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 48-51)

5. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Burden of proof – Financial loss – Assessment having regard to the size of the undertaking and the situation of the group to which it belongs – Jurisdiction of the court hearing the application for interim relief (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 14, 52-55, 57)

6. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Serious and irreparable damage – Decision to exclude a tenderer from a tender procedure – Damage to its reputation – Damage which cannot be regarded as irreparable (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see para. 59)

7. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Balancing of all the interests involved – Damage to the applicant’s reputation – General interest of the European Union taking priority over the purely public relations interest of the applicant (Arts 278 TFEU and 279 TFEU) (see paras 63-68)

Re:

APPLICATION for suspension of operation of decisions taken by the defendant, in the context of a tendering procedure, to reject the applicant’s tenders and to award to another tenderer Lot D of the contract for the supply of ITER toroidal field coils winding packs.

Operative part

1. The application for interim measures is dismissed.