Order of the President of the of the General Court of 18 January 2018 –

Strabag Belgium v Parliament

(Case T‑784/17 R)

(Application for interim relief — Public works contracts — Application for interim measures — Standstill period — Abnormally low bid — Prima facie case — Urgency — Weighing of the competing 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 court hearing the application for interim relief (Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156) (see paras 22-24)

2. Application for interim measures—Suspension of operation of a measure—Conditions for granting—Urgency—Assessment in public procurement litigation—Serious damage—Sufficient in the case of a particularly serious prima facie case constituted by an obvious 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; European Parliament and Council Regulation No 966/2012, Art. 118(2) and (3); Commission Regulation No 1268/2012, Art. 171(1)) (see paras 26-28)

3. 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 decision of an institution to reject a tender in the context of a public contract—Plea alleging failure to examine the abnormally low nature of a tender—Plea not prima facie lacking in foundation (Art. 278 TFEU; Commission Regulation No 1268/2012, Art. 151(1)) (see paras 30, 61, 63, 65, 66)

4. European Union public contracts—Conclusion of a contract following a call for tenders—Abnormally low offer—Obligation of the contracting authority to hear from the tenderer—Examination by the awarding authority of the abnormally low nature of the tender—Elements to be taken into consideration—Power of the assessment of the awarding authority (Commission Regulation No 1268/2012, Art. 151(1)) (see paras 33-36, 43, 52)

5. Application for interim measures—Suspension of operation of a measure—Interim measures—Conditions for granting—Urgency—Serious and irreparable damage—Burden of proof borne by the party seeking the interim measure (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156(3)) (see paras 67, 68)

6. Application for interim measures—Suspension of operation of a measure—Conditions for granting—Urgency—Serious and irreparable damage—Financial loss—Assessment according to the circumstances of the case—Damage linked to the opportunity loss of being awarded a public contract—Considerable nature of the damage (Art. 278 TFEU) (see paras 73-76)

7. Application for interim measures—Suspension of operation of a measure—Conditions for granting—Balancing of all the interests involved—Suspension of execution of a decision of an institution to reject a tender in the context of a public contract—Existence of a prima facie case concerning the failure to examine the abnormally low nature of a tender—Possibility for the institution to determine the abnormally low nature within a short time—Overriding interests of the unsuccessful tenderer (Art. 278 TFEU; Commission Regulation No 1268/2012, Art. 151) (see paras 78, 85-88)

Re:

Application based on Articles 278 TFEU and 279 TFEU seeking, first, a suspension of execution of the Parliament’s decision of 24 November 2017 to reject the applicant’s tender and to award to five tenderers the framework contract involving general contractor works for the Parliament buildings in Brussels (Belgium) (call for tenders 06/D 20/2017/M036) and, second, an order requiring the Parliament to produce various documents.

Operative part

1. Execution of the European Parliament’s decision of 24 November 2017 to reject Strabag Belgium’s tender and to award to five tenderers the framework contract involving general contractor works for Parliament buildings in Brussels (Belgium) (call for tenders 06/D 20/2017/M036) is suspended.

2. The remainder of the application is dismissed.

3. The order of 6 December 2017, Strabag Belgium v Parliament (T‑784/17 R), is cancelled.