Order of the President of the General Court of 20 January 2010 – Agriconsulting Europe v Commission

(Case T-443/09 R)

Application for interim measures – Public procurement – Tendering procedure – Rejection of a tender – Application for suspension of operation and for interim measures – Loss of opportunity – Absence of serious and irreparable damage – No urgency

1. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima facie case – Urgency – Serious and irreparable damage – Cumulative nature – Weighing-up of the interests – 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 14-16)

2. Applications 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 paras 25-26)

3. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits (see para. 28)

4. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Loss of opportunity arising from the exclusion of a tenderer from a tendering procedure – Loss not in itself constituting serious damage (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see para. 29)

5. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Serious and irreparable damage – Financial loss – Loss of opportunity arising from the exclusion of a tenderer from a tendering procedure – Assessment – Account taken of the size of the undertaking (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see para. 30)

6. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Financial loss – Loss of opportunity arising from the exclusion of a tenderer from a tendering procedure – Loss capable of full reparation in the context of the action in the main proceedings or an action for compensation – Not irreparable in character (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 32-35)

7. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Serious and irreparable damage – Contested measure infringing a superior rule of law – Condition not automatically fulfilled – Burden of proof (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see para. 36)

Re:

APPLICATION for interim relief concerning the tendering procedure EuropeAid/127054/C/SER/Multi relating to short-term services in the exclusive interest of third countries benefiting from European Commission external aid.

Operative part

1. The application for interim measures is dismissed.