Case T‑383/14 R

(publication by extracts)

Europower SpA

v

European Commission

‛Interim measures — Public works contracts — Tendering procedure — Construction and maintenance of a tri-generation plant — Rejection of the tender submitted by a tenderer and award of the contract to another tenderer — Application for suspension of operation — Prima facie case — Lack of urgency’

Summary — Order of the President of the General Court, 24 March 2015

Application for interim measures — Suspension of operation of a measure — Conditions for granting — Urgency — Assessment in proceedings on the award of public contracts — No sufficiently manifest and serious illegalities — Obligation to demonstrate the serious and irreparable nature of the damage

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 the awarding authority did not comply with the technical requirements of the tender documents — Plea not prima facie lacking in foundation

See the text of the decision. (see paras 12, 13)

In the context of an application for suspension of operation of a Commission decision on public contracts, a prima facie case must be deemed to exist where uncertainty as to the interpretation to be given to the presence of a term appearing in the technical specifications of a contract notice and its impact on the regularity of the award procedure at issue leads the court hearing the interim application to conclude that there is a major legal disagreement whose solution is not immediately obvious, so that the action is not, prima facie, without reasonable substance. (see para. 60)

In the very specific area of public procurement proceedings, it must be held that, if the unsuccessful tenderer manages to establish a very reasonable prima facie case, it cannot be required to prove that the dismissal of its application for interim measures risks causing it irreparable damage, if the effective judicial protection which it enjoys under Article 47 of the Charter of Fundamental Rights of the European Union is not to be excessively and unjustifiably limited. Such a prima facie case is constituted where it reveals a sufficiently manifest and serious illegality the reduction or expansion of the effects of which must be prevented as soon as possible, unless this is definitively precluded by the balancing of the interests involved. In these exceptional circumstances, evidence of the seriousness of the harm which would be caused if application of the contested decision is not suspended suffices, on its own, to fulfil the condition relating to urgency, in view of the need to negate the effectiveness of an illegality of that nature. (see para. 61)

Where examination of the pleas raised in support of the application for suspension of operation reveals only the existence of uncertainty leading the court hearing the interim application to consider that one of those pleas is not entirely without relevance, the behaviour and decisions adopted by the awarding authority cannot be considered as sufficiently manifest and serious illegalities under EU law for it to be necessary to prevent them producing effects in the future, without the applicant being required to show that the harm it would suffer if the contested measure were not suspended would be irreparable. Therefore, since the analysis of the pleas raised in support of the application for suspension of operation does not lead to the conclusion that there is a particularly reasonable prima facie case, the condition relating to urgency must be examined in order to determine whether the applicant has established the existence both of the seriousness and the irreparability of the harm it claims is likely to occur. (see paras 62-64)