ORDER OF THE PRESIDENT OF THE GENERAL COURT
24 October 2012 (*)
(Application for interim measures – Public service contracts – Call for tenders concerning the preparation of technical documentation for a rail modernisation project – Exclusion of the applicant from participation in the tender procedure – Annulment of the tender procedure after the action had been brought – No need to adjudicate)
In Case T‑219/12 R,
Saobraćajni institut CIP d.o.o., established in Belgrade (Serbia), represented by A. Lojpur, laywer,
applicant,
v
European Commission, represented by F. Erlbacher and E. Georgieva, acting as Agents,
defendant,
APPLICATION for, essentially, interim measures ordering the suspension of the tender procedure in the context of the contract notice published on 27 March 2012 concerning the preparation of technical documentation for a rail modernisation project and excluding the applicant from participating in the tender procedure,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 On 27 March 2012, a contract notice concerning the preparation of technical documentation relating to a project for modernisation of the ‘Novi Sad-Subotica-Hungarian Border’ railway line was published in the Supplement to the Official Journal of the European Union (OJ 2012/S 60‑096517) under the reference EuropeAid/131837/C/SER/RS (‘the contested notice’). The contracting authority consisted of the European Union, represented by the European Commission, acting in the name of and on behalf of the beneficiary country, Serbia.
2 That notice contained a statement to the effect that the applicant, Saobraćajni institut CIP d.o.o., was excluded from participation in the present tender due to a conflict of interests caused by its being a subsidiary of the beneficiary.
3 By application lodged at the Registry of the General Court on 28 May 2012, the applicant brought an action seeking annulment of the contested notice and damages.
4 By separate document lodged at the Court Registry on 13 June 2012, the applicant lodged the present application for interim measures.
5 After the action in the main proceedings and the present application for interim measures had been brought, the contracting authority, on 10 July 2012, annulled the tender procedure in question in accordance with Article 103 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) (‘the Financial Regulation’) on the ground of irregularities.
6 Consequently, on 24 October 2012, the Court made an order to the effect that there was no need to adjudicate on the action in the main proceedings (order of 24 October 2012 in Case T‑219/12 Saobraćajni institut CIP v Commission, not published in the ECR). As regards the costs, the Court ordered the Commission to bear its own costs and to pay those incurred by the applicant in the action in the main proceedings. In that regard, the Court took account of the fact that the irregularity which had led to the annulment of the tender procedure, and consequently to the decision that there was no need to adjudicate on the action in the main proceedings, resulted from the exclusion clause contained in the contract notice, which excluded the applicant from participating in the procedure on the ground of an alleged conflict of interests. However, the Court held that it was precisely in view of that exclusion clause that the applicant was challenging the validity of the contract notice, forcing it to bring legal proceedings.
7 It follows that there is no further need to adjudicate on the present application for interim measures in view of the fact that the proceedings for interim measures are ancillary to the main proceedings.
8 Article 87(1) of the Court’s Rules of Procedure provides that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. As the Court, in its order in Case T‑219/12 Saobraćajni institut CIP v Commission, cited in paragraph 6 above, ruled solely on the costs relating to the main proceedings, it is for the judge hearing the application for interim measures to rule on the costs relating to the present application for interim measures.
9 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. In the light of the circumstances of the present case, the defendant must be ordered to pay all of the costs relating to the proceedings for interim measures.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. There is no further need to adjudicate on the application for interim measures.
2. The European Commission shall pay the costs.
Luxembourg, 24 October 2012.