In interim proceedings, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage. Any such damage could be recouped by the applicant’s bringing an action for compensation on the basis of Articles 268 TFEU and 340 TFEU. However, as regards an application for interim measures concerning the award of a contract by an institution or other body of the EU, the application, without qualification, of case-law, even settled case-law, which makes it practically impossible for a successful tenderer to obtain a suspension of that decision, on the ground that the loss which it is likely to suffer, being financial in nature, is not irreparable, cannot be reconciled with the requirements which follow from the effective provisional protection which must be guaranteed in public procurement matters, implemented by the provisions of 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.

A general principle of EU law may be given specific expression in a directive. In that regard, where they take account of the provisions of a directive laying down a general principle of EU law, the EU Courts cannot disregard the content of those provisions, notwithstanding the fact that they do not apply as such in the case in question. More particularly, to the extent that it is apparent from the provisions of such a directive that the EU legislature sought to establish a balance between the different interests involved, the EU Courts must take account of that balance in their application of the general principle thus laid down.

In the context of an application for interim measures seeking suspension of the operation of a public contract award decision, having regard to the requirements which follow from the effective 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 harm, otherwise the effective legal 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.

Nevertheless, that easing of the requirements applicable to assessment of the existence of urgency, justified by the right to an effective judicial remedy, applies only during the pre-contractual phase, provided that the 10-day standstill period laid down in 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 Article 171(1) of Regulation 1268/2012 on the rules of application of Regulation No 966/2012 is respected. Where the adjudicating authority has concluded the contract with the successful tenderer after the expiry of that period and before the application for interim measures was lodged, such easing is no longer justified.

Furthermore, the view cannot be taken that the 10-day standstill period was complied with in circumstances where the possibility of making an application for interim measures before the contract is concluded was not effective because the unsuccessful tenderer did not have, during that period, sufficient information to enable it to make such an application, otherwise the principle enshrining the right to effective legal protection would be infringed. Having regard to the requirements of the principle of legal certainty, that exception to the purely mechanical application of the 10-day standstill period must, however, be reserved for exceptional cases in which the unsuccessful tenderer had no reason to believe that the contract award decision was vitiated by unlawfulness before the contract was concluded with the successful tenderer.

(see paras 41, 42, 48, 49)