Case T‑199/14 R

(publication by extracts)

Vanbreda Risk & Benefits

v

European Commission

‛Application for interim measures — Public service contracts — Tendering procedure — Supply of insurance services for property and persons — Rejection of a tender — Application for suspension of operation — Admissibility — Prima facie case — Urgency — Balancing of interests’

Summary — Order of the President of the General Court, 4 December 2014

Application for interim measures — Suspension of operation of a measure — Conditions for granting — Prima facie case — Prima facie examination of the pleas in law put forward in support of the main action — Action against a Commission decision to reject a tender for a public contract — Plea that decision allowing an insurance broker to participate in a call for tenders in an insurance matter as a single tenderer appointed by insurance companies illegal — Plea not prima facie lacking in foundation

When applying the rules applicable to applications for interim relief, account must be taken of the particular role of interim relief proceedings in public procurement procedures. In that regard, account must also be taken of the legal framework put in place by the European legislature which is applicable to contract award procedures organised by Member States’ contracting authorities. In particular, as provided in recital 40 in the preamble to Delegated Regulation No 1268/2012 on the rules of application of Regulation No 966/2012 on the financial rules applicable to the general budget of the Union, read in conjunction with Article 91(2) of Directive 2014/24 on public procurement and repealing Directive 2004/18, substantive rules on procurement should be based on the provisions of Directive 2014/24. Furthermore, as stated in recitals 1 to 3 in the preamble to Council Directive 89/665 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts and in recital 3 in the preamble to Directive 2007/66 amending Directives 89/665 and 92/13 with regard to improving the effectiveness of review procedures concerning the award of public contracts, in order to ensure the effective application of such rules, the legislature has deemed it necessary to put in place a set of procedural requirements making available speedy remedies at a stage where infringements can still meaningfully be corrected. Moreover, as is apparent from recitals 2, 3 and 5 and from Article 2(1) of Directive 89/665, within the particular context of public procurement, interim measures are not only conceived as a means to suspend the award process but at least equally as a means to correct an apparent infringement, which would otherwise fall within the scope of the main proceedings. The court hearing an application for interim measures is justified in taking into account the impact of such considerations on the exercise of its jurisdiction by the fact that, first, as is the case at national level, interim measures under Chapter 1 of Title 3 of the Rules of Procedure have as their purpose, in public procurement cases, the ensuring of effective judicial protection with regards to the application of procurement rules applicable to EU institutions and bodies which are, in essence, based on Directive 2014/24, and, secondly, in accordance with the general principle of interpretation as applied in the case-law of the Court, those directives underline the existence of a fundamental principle of EU procurement law: effective judicial protection for tenderers. It is clear from the case-law of the Court that this is a particular important principle and it is guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union. Accordingly, although it is common ground that the Court rejects as inoperative pleas in law alleging infringement by an EU institution of a provision of a directive concerning public procurement, which, by definition, is addressed to the Member States, the Courts of the European Union are, nevertheless, not precluded from taking account of the general principles of EU law which are laid down in that act of the European Union. In this case, directives concerning public procurement consistently reflect the vital importance of the right to effective judicial protection in this field. (see paras 16-20)

As regards the condition of a prima facie case, that is satisfied where there is, at the stage of the interim proceedings, a major legal disagreement whose resolution is not immediately obvious, so that the action is not prima facie without reasonable substance. 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 Courts of the Union, 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. Although it is true that, in the context of interim proceedings, the court hearing the application for interim measures is not required, as a rule, to undertake as detailed an assessment as in the context of the main proceedings, that finding cannot be interpreted as meaning that a detailed assessment is absolutely prohibited. (see paras 22, 23)

A particularly strong prima facie case must be found to exist where the awarding authority has permitted an insurance broker to participate in a call for tenders for a contract for the insurance of property and persons as a single tenderer appointed by insurance companies, thereby making it possible for that tender to be assessed in abstraction from the economic and financial capacity of the insurance companies which will, ultimately, cover the risk insured against, contrary to all the other scenarios expressly provided for in the tender specifications without any apparent objective justification for that differentiation in view of the rationale of the system. Permitting a broker to act in that way, first, makes it prima facie impossible for the evaluation committee to assess the merits of a tender in relation to the conditions set out in the tender specifications and, secondly, in some circumstances, gives that broker a competitive advantage over other tenderers. (see paras 75, 81)

A particularly strong prima facie case must be found to exist where the original tender submitted by an undertaking has, prima facie, undergone an inadmissible amendment under Article 112(1) of the financial regulation and Article 160 of the delegated regulation, infringing the principle of equal treatment of tenderers applicable in the field of EU procurement law. (see para. 120)