CELEX: 62015TO0259
Language: en
Date: 2015-06-15 00:00:00
Title: Order of the President of the General Court of 15 June 2015 (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.#Case T-259/15 R.

ORDER OF THE PRESIDENT OF THE GENERAL COURT
      15 June 2015 (
            *1
         )
      ‛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’
      In Case T‑259/15 R,
      
         SA Close, established in Harzé-Aywaille (Belgium),
      
         Cegelec, established in Brussels (Belgium),
      represented by J.-M. Rikkers and J.-L. Teheux, lawyers,
      applicants,
      v
      
         European Parliament, represented by M. Rantala, M. Mraz and F. Poilvache, acting as Agents,
      defendant,
      APPLICATION for suspension of the operation of the decision of 19 March 2015 whereby the Parliament rejected the tender submitted by the applicants following tendering procedure INLO-D-UPIL-T‑14-A04 relating to the public works contract for lot No 73 (energy unit) of the ‘Project to extend and modernise the Konrad Adenauer Building in Luxembourg’ and of the decision of the same day in which the contract at issue was awarded to another tenderer,
      THE PRESIDENT OF THE GENERAL COURT
      makes the following
      
         Order (
            1
         )
      
         Background to the dispute
      
      
               1
            
            
               In the call for tenders under reference number INLO-D-UPIL-T‑14-A04, made by the European Parliament in July 2014 for the public law contract entitled ‘Project to extend and modernise the Konrad Adenauer Building in Luxembourg’, SA Close and Cegelec, the applicants, tendered as a consortium for lot No 73 (energy unit).
            
         
               2
            
            
               By letter of 27 March 2015, received by the applicants on the same day, the Parliament informed the applicants that their tender had not been selected because they had not offered the lowest price. On 19 March 2015, the tender had been rejected and the contract at issue awarded to another tenderer.
               …
            
         
         Procedure and forms of order sought
      
      
               9
            
            
               By application lodged at the Court Registry on 26 May 2015, the applicants brought an action for annulment of the decision of 19 March 2015 of the Parliament rejecting their tender and of the decision of the same day awarding the contract at issue to the consortium Énergie KAD (‘the consortium’) formed by the undertakings X and Y (‘the contested decisions’).
            
         
               10
            
            
               By separate document, lodged at the Court Registry on the same day, the applicants brought the present application for interim measures, in which they claim, in essence, that the President of the Court should suspend the operation of the contested decisions.
            
         
               11
            
            
               In its submissions on the application for interim measures, lodged at the Court Registry on 11 June 2015, the Parliament contends, in essence, that the President of the General Court should:
               
                        —
                     
                     
                        dismiss the application for interim measures;
                     
                  
                        —
                     
                     
                        award costs in accordance with Article 87(1) of the Rules of Procedure of the Court in the decision which closes the proceedings.
                     
                  
         
         Law
      
      …
      
         Urgency
      
      …
      
               35
            
            
               It follows from all the foregoing considerations that the condition of urgency is lacking in the present case.
            
         
               36
            
            
               The President of the Court has, however, recently held with regard to a public law contract that the condition of demonstrating the likelihood of ‘irreparable’ harm can, as a general rule, be satisfied by an unsuccessful tenderer only with extreme difficulty for the reasons inherent to the very system [of tendering] outlined above (see, to that effect, order of 4 December 2014 in Vanbreda Risk & Benefits v Commission, T‑199/14 R, ECR (Extracts), EU:T:2014:1024, paragraph 157). From that order, the Vice President of the Court of Justice has concluded that 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 (see, to that effect, order in Commission v Vanbreda Risk & Benefits, [C‑35/15 P(R)] cited in paragraph [31] above, EU:C:2015:275, paragraph 41).
            
         
               37
            
            
               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 (see, to that effect, order in Commission v Vanbreda Risk & Benefits, cited in paragraph [36] above, EU:C:2015:275, paragraphs 34 and 42).
            
         
               38
            
            
               Where the period of suspension referred to above — 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 only damages before the EU courts cannot be treated as an infringement of the right to an effective judicial remedy (see, to that effect, order in Commission v Vanbreda Risk & Benefits, cited in paragraph [36] above, EU:C:2015:275, paragraphs 36, 37 and 39).
            
         
               39
            
            
               As for the application of those principles to the present case, it is clear from the documents before the court, first, that the contract at issue has been awarded to the Énergie KAD consortium, formed by the undertakings X and Y, on 19 March 2015, and that the applicants were informed of the fact that their tender had been rejected on 27 March 2015 and, second, that the works contract for lot No 73 (energy unit), under reference number INLO-D-UPIL-T‑14-A04, between that consortium and the société immobilière bâtiment Konrad Adenauer du Parlement (The Konrad Adenauer Building of the Parliament Company) was signed on 24 April 2015.
            
         
               40
            
            
               Thus, in so far as the decision to reject the tender was notified to the applicants on 27 March 2015 and the contract at issue was concluded on 24 April 2015, the period of suspension under Article 171(1) of Regulation No 1268/2012, be it 10 or 14 calendar days, has in any event been respected in the present case. Moreover, the applicants brought their action for annulment and the present application for interim measures on 26 May 2015, a month after the conclusion of the contract. In those circumstances, there is, in principle, no justification for relaxing the condition of urgency.
            
         
               41
            
            
               It should, nevertheless, be noted that the period of suspension is capable of enabling interested parties to bring court proceedings to contest the award of a contract before the conclusion of that contract only if sufficient information was available to such interested parties for determining whether there had been a potential irregularity in the award decision (see, to that effect, order in Commission v Vanbreda Risk & Benefits, cited in paragraph [36] above, EU:C:2015:275, paragraph 47).
            
         
               42
            
            
               It cannot, without infringing the right to an effective judicial remedy, be considered that the period of suspension has been respected 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 (see, to that effect, order in Commission v Vanbreda Risk & Benefits, paragraph [36] above, EU:C:2015:275, paragraph 48).
            
         
               43
            
            
               Having regard to the conditions of the principle of legal certainty, this exception to the purely mechanical application of the period of suspension must, however, 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, to that effect, order in Commission v Vanbreda Risk & Benefits, paragraph [36] above, EU:C:2015:275, paragraph 49).
            
         
               44
            
            
               It is therefore necessary to examine whether sufficient information was available to the applicants for making effective use of the period of suspension for the purposes of bringing an action for the annulment of the contested decisions and of making an application for interim measures suspending their operation before the conclusion of the contract between the Parliament and the Énergie KAD consortium on 24 April 2015.
            
         
               45
            
            
               In that respect, the applicants informed the Parliament on 3 April 2015, thus well before the conclusion of the contract, of their doubts regarding the legality of the tender selected by the contracting body (see paragraph 3 above [citation of letter to the Parliament on 3 April 2015]), claiming that one of the Luxembourg undertakings forming the consortium respected neither the relevant Luxembourg law nor the criteria of the specification concerning the financial capacity of the tenderers. It is thus clear from the documents before the Court that, in essence, those very doubts are reproduced in the second plea in law for annulment raised in the application for interim measures on the ground of a prima facie case.
            
         
               46
            
            
               It follows that the applicants were, from 3 April 2015, capable of addressing specific grievances against the contested decisions. Those grievances, presented in the form of a plea for annulment, would have effectively enabled them to bring an action for annulment together with an application for interim measures seeking to prevent the conclusion of the contract between the Parliament and the consortium within the period of suspension. Lodged in good time, such an application would have enabled the applicants to obtain an order under the second subparagraph of Article 105(2) of the Rules of Procedure suspending the operation of the contested decisions for the duration of the proceedings for interim measures, even before the other party had made its submissions. In any event, until the period of time for bringing proceedings under the sixth paragraph of Article 263 TFEU had elapsed, as extended on account of distance by Article 102(2) of the Rules of Procedure, nothing would have prevented the applicants from extending the scope of their action and their application for interim measures according to the information received from the Parliament (see paragraphs 5 and 8 above). Moreover, under the first subparagraph of Article 48(2) of the Rules of Procedure, the applicants would even have been permitted to introduce new pleas in law in the course of the proceedings provided that those pleas were based on matters of law or of fact which came to light in the course of the procedure before the Court.
            
         
               47
            
            
               Consequently, the time-limit for suspension laid down in Article 171(1) of Regulation No 1268/2012 has been respected in its entirety in the present case, so that the condition of urgency for public works contracts need not be relaxed in the present case.
            
         
               48
            
            
               In the light of all the foregoing considerations, the application for interim measures must be dismissed, without it being necessary to examine the condition of a prima facie case or to weigh up the various interests at issue.
            
          
            
               On those grounds,
               THE PRESIDENT OF THE GENERAL COURT
               hereby orders:
            
          
            
               
                        
                           1.
                        
                     
                     
                        
                           The application for interim measures is dismissed.
                        
                     
                  
          
            
               
                        
                           2.
                        
                     
                     
                        
                           Costs are reserved.
                        
                     
                  
          
               
                  Luxembourg, 15 June 2015.
               
             
               
                  
                     E. Coulon
                     Registrar
                     M. Jaeger
                     President
                  
               
            (
            *1
         )	Language of the case: French.
      (
            1
         )	Only the paragraphs of the present order which the Court considers it appropriate to publish are reproduced here.
    ---documentbreak--- 
      
         
            
               Parties
               Operative part
               
            
            Parties
            In Case T‑259/15 R,
            SA Close,  established in Harzé-Aywaille (Belgium),
            Cegelec,  established in Brussels (Belgium),
            represented by J.-M. Rikkers and J.-L. Teheux, lawyers,
            applicants,
            v
            European Parliament,  represented by M. Rantala, M. Mraz and F. Poilvache, acting as Agents,
            defendant,
            APPLICATION for suspension of the operation of the decision of 19 March 2015 whereby the Parliament rejected the tender submitted by the applicants following tendering procedure INLO-D-UPIL-T‑14-A04 relating to the public works contract for lot No 73 (energy unit) of the ‘Project to extend and modernise the Konrad Adenauer Building in Luxembourg’ and of the decision of the same day in which the contract at issue was awarded to another tenderer,
            THE PRESIDENT OF THE GENERAL COURT
            makes the following
            Order (1)
            Background to the dispute 
            1. In the call for tenders under reference number INLO-D-UPIL-T‑14-A04, made by the European Parliament in July 2014 for the public law contract entitled ‘Project to extend and modernise the Konrad Adenauer Building in Luxembourg’, SA Close and Cegelec, the applicants, tendered as a consortium for lot No 73 (energy unit).
            2. By letter of 27 March 2015, received by the applicants on the same day, the Parliament informed the applicants that their tender had not been selected because they had not offered the lowest price. On 19 March 2015, the tender had been rejected and the contract at issue awarded to another tenderer.
            …
            Procedure and forms of order sought 
            9. By application lodged at the Court Registry on 26 May 2015, the applicants brought an action for annulment of the decision of 19 March 2015 of the Parliament rejecting their tender and of the decision of the same day awarding the contract at issue to the consortium Énergie KAD (‘the consortium’) formed by the undertakings X and Y (‘the contested decisions’).
            10. By separate document, lodged at the Court Registry on the same day, the applicants brought the present application for interim measures, in which they claim, in essence, that the President of the Court should suspend the operation of the contested decisions.
            11. In its submissions on the application for interim measures, lodged at the Court Registry on 11 June 2015, the Parliament contends, in essence, that the President of the General Court should:
            – dismiss the application for interim measures;
            – award costs in accordance with Article 87(1) of the Rules of Procedure of the Court in the decision which closes the proceedings.
            Law 
            …
            Urgency 
            …
            35. It follows from all the foregoing considerations that the condition of urgency is lacking in the present case.
            36. The President of the Court has, however, recently held with regard to a public law contract that the condition of demonstrating the likelihood of ‘irreparable’ harm can, as a general rule, be satisfied by an unsuccessful tenderer only with extreme difficulty for the reasons inherent to the very system [of tendering] outlined above (see, to that effect, order of 4 December 2014 in Vanbreda Risk & Benefits  v Commission , T‑199/14 R, ECR (Extracts), EU:T:2014:1024, paragraph 157). From that order, the Vice President of the Court of Justice has concluded that 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 (see, to that effect, order in Commission  v Vanbreda Risk & Benefits , [C‑35/15 P(R)] cited in paragraph [31] above, EU:C:2015:275, paragraph 41).
            37. 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 (see, to that effect, order in Commission  v Vanbreda Risk & Benefits , cited in paragraph [36] above, EU:C:2015:275, paragraphs 34 and 42).
            38. Where the period of suspension referred to above — 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 only damages before the EU courts cannot be treated as an infringement of the right to an effective judicial remedy (see, to that effect, order in Commission  v Vanbreda Risk & Benefits , cited in paragraph [36] above, EU:C:2015:275, paragraphs 36, 37 and 39).
            39. As for the application of those principles to the present case, it is clear from the documents before the court, first, that the contract at issue has been awarded to the Énergie KAD consortium, formed by the undertakings X and Y, on 19 March 2015, and that the applicants were informed of the fact that their tender had been rejected on 27 March 2015 and, second, that the works contract for lot No 73 (energy unit), under reference number INLO-D-UPIL-T‑14-A04, between that consortium and the société immobilière bâtiment Konrad Adenauer du Parlement (The Konrad Adenauer Building of the Parliament Company) was signed on 24 April 2015.
            40. Thus, in so far as the decision to reject the tender was notified to the applicants on 27 March 2015 and the contract at issue was concluded on 24 April 2015, the period of suspension under Article 171(1) of Regulation No 1268/2012, be it 10 or 14 calendar days, has in any event been respected in the present case. Moreover, the applicants brought their action for annulment and the present application for interim measures on 26 May 2015, a month after the conclusion of the contract. In those circumstances, there is, in principle, no justification for relaxing the condition of urgency.
            41. It should, nevertheless, be noted that the period of suspension is capable of enabling interested parties to bring court proceedings to contest the award of a contract before the conclusion of that contract only if sufficient information was available to such interested parties for determining whether there had been a potential irregularity in the award decision (see, to that effect, order in Commission  v Vanbreda Risk & Benefits , cited in paragraph [36] above, EU:C:2015:275, paragraph 47).
            42. It cannot, without infringing the right to an effective judicial remedy, be considered that the period of suspension has been respected 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 (see, to that effect, order in Commission  v Vanbreda Risk & Benefits , paragraph [36] above, EU:C:2015:275, paragraph 48).
            43. Having regard to the conditions of the principle of legal certainty, this exception to the purely mechanical application of the period of suspension must, however, 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, to that effect, order in Commission  v Vanbreda Risk & Benefits , paragraph [36] above, EU:C:2015:275, paragraph 49).
            44. It is therefore necessary to examine whether sufficient information was available to the applicants for making effective use of the period of suspension for the purposes of bringing an action for the annulment of the contested decisions and of making an application for interim measures suspending their operation before the conclusion of the contract between the Parliament and the Énergie KAD consortium on 24 April 2015.
            45. In that respect, the applicants informed the Parliament on 3 April 2015, thus well before the conclusion of the contract, of their doubts regarding the legality of the tender selected by the contracting body (see paragraph 3 above [citation of letter to the Parliament on 3 April 2015]), claiming that one of the Luxembourg undertakings forming the consortium respected neither the relevant Luxembourg law nor the criteria of the specification concerning the financial capacity of the tenderers. It is thus clear from the documents before the Court that, in essence, those very doubts are reproduced in the second plea in law for annulment raised in the application for interim measures on the ground of a prima facie case.
            46. It follows that the applicants were, from 3 April 2015, capable of addressing specific grievances against the contested decisions. Those grievances, presented in the form of a plea for annulment, would have effectively enabled them to bring an action for annulment together with an application for interim measures seeking to prevent the conclusion of the contract between the Parliament and the consortium within the period of suspension. Lodged in good time, such an application would have enabled the applicants to obtain an order under the second subparagraph of Article 105(2) of the Rules of Procedure suspending the operation of the contested decisions for the duration of the proceedings for interim measures, even before the other party had made its submissions. In any event, until the period of time for bringing proceedings under the sixth paragraph of Article 263 TFEU had elapsed, as extended on account of distance by Article 102(2) of the Rules of Procedure, nothing would have prevented the applicants from extending the scope of their action and their application for interim measures according to the information received from the Parliament (see paragraphs 5 and 8 above). Moreover, under the first subparagraph of Article 48(2) of the Rules of Procedure, the applicants would even have been permitted to introduce new pleas in law in the course of the proceedings provided that those pleas were based on matters of law or of fact which came to light in the course of the procedure before the Court.
            47. Consequently, the time-limit for suspension laid down in Article 171(1) of Regulation No 1268/2012 has been respected in its entirety in the present case, so that the condition of urgency for public works contracts need not be relaxed in the present case.
            48. In the light of all the foregoing considerations, the application for interim measures must be dismissed, without it being necessary to examine the condition of a prima facie case or to weigh up the various interests at issue.
            (1) . 
            (1)  –	Only the paragraphs of the present order which the Court considers it appropriate to publish are reproduced here.
            
            Operative part
            On those grounds,
            THE PRESIDENT OF THE GENERAL COURT
            hereby orders:
            1. The application for interim measures is dismissed. 
            2. Costs are reserved. 
            Luxembourg, 15 June 2015.