Case T‑259/15 R

(publication by extracts)

SA Close

and

Cegelec

v

European Parliament

‛Interim measures — Public works contracts — Tendering procedure — Construction of an energy unit — Rejection of tender submitted by a tenderer and award of the contract to another tenderer — Application for suspension of the operation of a measure — Lack of urgency’

Summary — Order of the President of the General Court, 15 June 2015

Application for interim measures — Suspension of operation of a measure — Conditions for granting — Urgency — Assessment in public procurement litigation — Serious damage — Sufficient where particularly strong prima facie case constituted by manifest and serious illegality — Condition — Application for interim measures brought in the standstill period before conclusion of the contract with the successful tenderer

(Art. 278 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Commission Regulation No 1268/2012, Art. 171(1))

In the context of an application for interim measures concerning a public law contract, the condition of demonstrating the likelihood of ‘irreparable’ harm can, as a general rule, be satisfied by an unsuccessful tenderer only with extreme difficulty. An unsuccessful tenderer cannot be required to establish that rejecting its application for interim measures would be likely to cause it irreparable harm, provided that the tenderer demonstrates that it has a particularly strong prima facie case, lest the tenderer’s right to an effective judicial remedy under Article 47 of the Charter of Fundamental Rights of the European Union be excessively endangered without justification.

However, that relaxing of the relevant rules for assessing the condition of urgency, founded on the right to an effective judicial remedy, cannot be applied without restriction, given that the interests of the unsuccessful tenderer must be balanced with those of the contracting authority and of the successful tenderer. It follows that the relaxing of those rules applies only during the pre-contractual stage on condition that the standstill period laid down in Article 171(1) of Regulation No 1268/2012 has been respected, which, according to the circumstances, amounts to 10 or 14 calendar days. Where the contracting authority has concluded the contract with the successful tenderer after that period has elapsed and before the application for interim measures has been brought, the abovementioned relaxing of the rules is no longer justified. Where that standstill period — which prevents the contracting body from proceeding to the contractual stage before that period has elapsed and which is intended to allow interested parties to bring court proceedings contesting the award of a public contract before the conclusion of the contract — has actually elapsed before the conclusion of the contract, to allow an unsuccessful tenderer then to claim exclusively damages before the EU courts cannot be treated as an infringement of the right to an effective judicial remedy.

Moreover, the standstill period cannot place the persons concerned in a position to bring court proceedings challenging the award of a contract before it is concluded unless those persons have sufficient information for determining whether there has been a potential irregularity in the award decision. In that regard, the standstill period cannot, without breaching the right to an effective judicial remedy, be regarded as having been complied with in circumstances where, before the conclusion of the contract, there has not been a genuine possibility of bringing an action, together with an application for interim measures, due to sufficient information not being available during that time to an unsuccessful tenderer for bringing such proceedings. However, having regard to the conditions of the principle of legal certainty, this exception to the purely mechanical application of the period of suspension must be limited to exceptional cases in which the unsuccessful tenderer had no reason to believe that the decision awarding the contract was unlawful in the time before the conclusion of the contract with the successful tenderer.

(see paras 36-38, 41-43)