NON-CONFIDENTIAL VERSION
ORDER OF THE PRESIDENT OF THE GENERAL COURT
31 August 2010 (*)
(Application for interim measures – Public contracts – Tendering procedure – Rejection of a tender – Application for suspension of operation of a measure – Prima facie case – Urgency – Balance of interests)
In Case T‑299/10 R,
Babcock Noell GmbH, established in Würzburg (Germany), represented by M. Werner and C. Ebrecht, lawyers,
applicant,
v
The European joint undertaking for ITER and the Development of Fusion Energy, represented by A. Verpont, acting as Agent, assisted by C. Kennedy-Loest, K. Wilson and C. Thomas, Solicitors, and N. Pourbaix, lawyer,
defendant,
APPLICATION for suspension of operation of decisions taken by the defendant, in the context of a tendering procedure, to reject the applicant’s tenders and to award to another tenderer Lot D of the contract for the supply of ITER toroidal field coils winding packs,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1 The International Thermonuclear Experimental Reactor (ITER) is an international project to build and operate an experimental reactor with the aim of demonstrating the scientific and technological feasibility of fusion energy for peaceful purposes. The project is conducted under the terms of an international agreement signed in Paris on 21 November 2006. That agreement created the ITER International Fusion Energy Organisation, with legal personality, to be responsible for the joint implementation of the project. By Council Decision 2007/198/Euratom of 27 March 2007 establishing the European joint undertaking for ITER and the Development of Fusion Energy and conferring advantages upon it (OJ 2007 L 90, p. 58), the European joint undertaking for ITER and the development of fusion energy (‘the Joint Undertaking’) was established. Under Article 4 of the Annex to Decision 2007/198 relating to the statutes of the Joint Undertaking, it has legal personality and, in the territory of each of its Members, is to enjoy the most extensive legal capacity granted to legal persons under their respective laws.
2 The tasks of the Joint Undertaking are: to contribute to the ITER International Fusion Energy Organisation, to contribute to broader approach activities with Japan for the rapid realisation of fusion energy and to prepare and coordinate a programme of activities in preparation for the construction of a demonstration fusion reactor and related facilities.
3 To that end, the Joint Undertaking conducts procurement procedures relating to the supply of movable or immovable assets, the performance of works or the provision of services for the implementation of international tasks relating to the construction of the reactor in question at Cadarache (France).
4 In July 2009, the Joint Undertaking launched the tendering procedure F4E-2009-OPE-053 (MS-MG) for the award of a contract for the supply of ITER toroidal field coils winding packs. That contract was divided into four lots (A, B, C and D) and was to be implemented in three stages.
5 On 15 December 2009, the applicant, Babcock Noell GmbH, a company active in the field of nuclear technology, magnet technology and environmental technology, submitted bids for each of the lots of the tendering procedure in question. To each of its bids it attached a list entitled ‘requested amendments’ containing comments and/or requests for amendments to the model contract included in the tender specifications.
6 By four letters dated 1 July 2010, the Joint Undertaking informed the applicant of its decision to reject its bids on the ground that they did not comply with the tender specifications, since there were approximately 45 deviations from the model contract contained in the tender specifications.
7 Next, on 2 July 2010, the Joint Undertaking published a notice of award of Lot D of the contract in question on 28 June 2010 to a consortium made up of three undertakings (‘the consortium’). Finally, on 19 July 2010, the Joint Undertaking and the consortium signed the contract relating to that lot.
Procedure and forms of order sought
8 By application lodged at the Registry of the Court on 15 July 2010, the applicant brought an action for annulment, first, of the decisions of the Joint Undertaking rejecting its bids for Lots A, B, C and D of the contract in question (‘the rejection decisions’) and, secondly, of the decision of the Joint Undertaking awarding to the consortium the contract for Lot D of the contract in question (‘the contract award decision’).
9 By a separate document lodged at the Registry of the Court on the same day, the applicant brought the present application for interim measures, in which, in essence, it requests the President of the Court to:
– order the suspension of the operation of the rejection decisions until the Court has ruled on the main action;
– order the suspension of the operation of the contract award decision and, where necessary, of any contract concluded pursuant to that decision until the Court has ruled on the main action;
– grant any other appropriate interim measure;
– order that a hearing be held;
– order the Joint Undertaking to pay the costs.
10 In its written observations lodged at the Registry of the Court on 2 August 2010, the Joint Undertaking contends, in essence, that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
Law
11 Under Articles 278 TFEU and 279 TFEU, in conjunction with Article 256(1) TFEU, the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of the act contested before the General Court be suspended or prescribe any necessary interim measures.
12 Article 104(2) of the Rules of Procedure of the General Court provides that an application for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency, and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, the judge hearing the application may order suspension of operation of an act and interim measures if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
13 In addition, in the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre‑established scheme of analysis within which the need to order interim measures must be analysed and assessed (order in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of the President of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25). Where appropriate, the judge hearing the application must also weigh up the interests involved (order of the President in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73).
14 Lastly, it is to be noted that Article 278 TFEU establishes the principle that actions are not to have suspensory effect, since acts adopted by the institutions, bodies, offices and agencies of the European Union are presumed to be lawful. It is therefore only by way of exception that the judge hearing the application for interim measures may order that operation of the act contested before the Court be suspended or prescribe provisional measures (see, to that effect, order of the President of 17 December 2009 in Case T‑396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and case-law cited).
15 Having regard to the documents in the case, the President of the Court considers that he has all the material needed in order to rule on the present application for interim measures and that it is not expedient first to hear oral argument from the parties. Consequently, the applicant’s request that a hearing be arranged must be rejected.
Prima facie case
16 In order to determine whether the condition for establishing a prima facie case is satisfied in the present case, it is necessary to carry out a prima facie examination of the substance of the pleas in law advanced by the applicant in support of the main action and therefore to ascertain whether at least one of them is so weighty that it cannot be discounted in the present proceedings for interim measures (see order of the President of 28 April 2009 in Case T‑95/09 R United Phosphorus v Commission, not published in the ECR, paragraph 21 and case-law cited).
17 Furthermore, it follows from a combined reading of Article 104(3) and Article 44(1)(c) of the Rules of Procedure that an application for interim relief must be sufficient in itself to enable the defendant to prepare its observations and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary that the essential elements of fact and law on which it is founded be set out in a coherent and comprehensible fashion in the application for interim relief itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if it is annexed to the application for interim relief, cannot make up for the absence of essential elements in that application (orders of the President of the General Court in Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 34; and Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 52; see also order of the President of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission, not published in the ECR, paragraph 13).
18 Moreover, point 68 of the Practice Directions to Parties expressly provides that ‘[t]he application … must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings’.
19 In the present case, in respect of the condition that there must be a prima facie case, the applicant, in its application for interim measures, merely provided a summary of the seven pleas in law it is putting forward in support of its main action.
20 Yet it is clear that the elements of fact and law on which the applicant relies are not set out in a comprehensible fashion in the application for interim relief itself in respect of six of the seven pleas put forward in support of the application. It is accordingly not possible for the President of the Court to rule on them. Nor does the applicant specify which of those pleas are directed at the rejection decisions and/or the contract award decision and/or the conclusion of the contract in dispute.
21 The applicant’s assertions that the Joint Undertaking infringed the principle of equal treatment of tenderers in that it ‘did not make available … all relevant information, in particular the so-called “Final Report” containing the entirety of the results of works performed by the consortium [nor] remedy the fact that the competing consortium had a significant information advantage when formulating its tender, on account of information concerning the current procedure previously received as a result of carrying out works for [the joint venture] and other entities’ and according to which the Joint Undertaking infringed the principle of transparency ‘by not making available … all information relating to the circumstances and the factual backgrounds for its decision not to reveal all the information relevant for the assessment of the existence of an information advantage of the consortium’ do not enable the President of the Court to carry out a prima facie examination of the substance of the plea alleging infringement of the principle of equal treatment of tenderers and of the principle of transparency, in the absence of more detailed factual and legal explanations.
22 Similarly, the applicant’s assertion that ‘the competing bidding consortium was subject to a conflict of interest with regard to the contract to be awarded in the current procedure’ does not enable the President of the Court to carry out a prima facie examination of the substance of the plea alleging infringement of Article 84(a) of the Joint Undertaking’s financial regulation, in the absence of any explanation of that conflict of interest and with no production of the said financial regulation.
23 As regards the plea alleging infringement of Article 93 and Article 100(h) of the implementing rules of the Joint Undertaking’s financial regulation, the applicant refers merely to ‘the decision of [the Joint Undertaking] to award the contracts in the current tender procedure by way of an open procedure, instead of a competitive dialogue procedure or negotiated procedure, although the conditions for these procedures … were clearly met and although [the Joint Undertaking] would not receive “best value for money”‘, adding that ‘the open procedure was inadequate due to the technical and commercial complexity of the contract (as shown, in particular, by the fact that [the Joint Undertaking] had to amend the technical specifications several times, as well as given that the [toroidal field] coils in question have never been built before and that [the Joint Undertaking] chose to apply a three-stage contract structure, with a significant amount of R&D work to be performed in the first stage)’. As neither those implementing rules nor the tender specifications were attached to the application for interim measures, the President of the Court is not able to carry out a prima facie examination of the substance of this plea, in which the applicant also refers to the technical and commercial complexity of the contract at issue.
24 Next, as regards the plea alleging ‘breach of Article 23(2) of Directive 2004/18/EC (analogous application)’, the applicant states only that ‘the terms and conditions used in the model contract of the current procedure are contrary to the applicable Spanish law and qualify as having the effect of creating unjustified obstacles to the opening up of public procurement for competition’. Such an assertion does not enable the President of the Court to carry out a prima facie examination of the substance of this plea, since the model contract in question was not attached to the application for interim measures. The same holds true for the pleas alleging infringement of Article 116(1) of the implementing rules of the Joint Undertaking’s financial regulation, to the effect that the Joint Undertaking made ‘use of vague and unclear requirements in the tender specifications’; and infringement of the principles of transparency and equal treatment, in that the Joint Undertaking applied ‘award criteria in the tender specifications for the current procedure that are vague and non-transparent and do not refer to the subject of the contract, but to the qualification and selection of the tenderer’.
25 Lastly, in the context of the plea alleging infringement of the principles of equal treatment, transparency and good administrative practice and manifest error in the assessment of its tenders, the applicant challenges the lawfulness of the rejection decisions, arguing that, contrary to the Joint Undertaking’s assertions, its tenders did comply with the tender specifications and that, rather than containing substantial modifications to the model contract, contained merely a list setting out proposals on issues to be negotiated. It further criticises the Joint Undertaking for having infringed the principles of good administrative practice and transparency by adopting those decisions without having sought clarification from the applicant on the content of its tenders and without having provided a clear and unequivocal statement of the reasons for those decisions.
26 Although the applicant did attach to the application for interim measures the list entitled ‘requested amendments’, as contained in its tender of 15 December 2009, it did not provide the President of the Court with the complete text of either the model contract included in the tender specifications or the tender itself. Moreover, although the applicant did produce the contract notice and the rejection decisions, it failed to produce the tender specifications to which those documents refer and on which the rejection decisions are specifically based. The President of the Court is therefore unable to assess the significance and scope to be given to the requests for amendments to the model contract in the context of the open tendering procedure in which the applicant participated.
27 It was, moreover, all the more necessary for the applicant to provide all relevant documents since, in its observations, the Joint Undertaking provided documents which were such as to refute the applicant’s arguments.
28 The Joint Undertaking stated inter alia that, in the tender specifications for the contract, the first point under section 4.1, entitled ‘General requirements’, contained a detailed statement that ‘submission of a tender implies acceptance of all the provisions laid down in the model contract and associated annexes, including technical and management specifications and waiver of the tenderer’s own general or specific terms and conditions’ and that the Joint Undertaking ‘may disregard any qualification or disclaimer to that effect contained in the tender and reserves the right to reject such tenders without further evaluation on the grounds that they do not comply with the tender specifications’.
29 The Joint Undertaking added that, when the applicant submitted its tenders for the different lots, each one contained two electronic documents in the folder relating to the model contract, the first of which was a copy of the model contract, initialled on each page and signed on the last page. However, above the signature were the following words, in handwriting: ‘[t]he attached list of deviation is an integral part of the offer of Babcock Noell GmbH’. The second document was the ‘List of deviation’ corresponding to the ‘Requested amendments’ reproduced in Annex A.2 to the application for interim measures. This is the list of amendments to the model contract which led to the rejection of the applicant’s tenders.
30 It follows that the elements put forward by the applicant in the application for interim measures in support thereof do not enable the President of the Court to carry out a prima facie examination of the substance of this plea, since the application in the main proceedings lodged at the Court Registry cannot make up for the absence of an adequate explanation in the application for interim measures of the constituents of a prima facie case. It is not for the judge hearing the application for interim measures to seek, in place of the party concerned, those matters contained in the annexes or in the main application which would support the application for interim measures (see, to that effect, order of the President of 25 May 2009 in Case T‑159/09 R Biofrescos v Commission, not published in the ECR, paragraphs 17 and 18).
31 It follows from the foregoing that the applicant has failed to establish a prima facie case.
32 In the particular circumstances of the present case, however, it is appropriate to consider, for the sake of completeness, whether the requirement of urgency appears to be fulfilled.
Urgency
33 According to established case-law, urgency must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the relief. It does not have to be established with absolute certainty that the damage is imminent; it is sufficient that the damage, particularly when it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability. However, the party invoking damage is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (see the order in United Phosphorus v Commission, paragraph 32 and case-law cited).
34 It is in the light of those considerations that it is necessary to examine the reasons put forward by the applicant to establish that it will suffer serious and irreparable damage if the interim measures requested are not granted.
Arguments of the parties
35 The applicant submits that it will suffer serious and irreparable damage if the requested suspension of operation is not granted, as it risks being definitively prevented from being awarded the contract in question. It argues that it is unlikely that the Joint Undertaking will organise a fresh tendering procedure for the supply of ITER toroidal field coils winding packs following a judgment annulling the decisions in the main action. By signing a contract with the consortium in respect of Lot D of the contract in question following the contract award decision, the Joint Undertaking created an ‘irrevocable factual situation’. Under the tender specifications, the first stage of the contract, which covers the bulk of that contract, namely the supply of the double pancake prototype, tooling and research and development, and which is worth roughly 60% of the total contract value, will likely be ‘commenced and performed’ immediately. Given the projected timetable for that first stage, the works will be performed between July 2010 and April 2013.
36 According to the applicant, financial compensation in the form of an award of damages would not constitute appropriate reparation for the losses suffered. The contract at issue concerns supplies for an exceptional international project which is high-profile and unique in fusion energy. Hence, only in-kind compensation, that is, actual performance of the contract, will enable it to acquire ‘the value of the contract’ and also the prestige, visibility and experience associated with such a project. Given that it is unlikely that comparable works will be undertaken by customers in the future, there are no terms of comparison which may serve to quantify the harm to its reputation caused as a result of the rejection of its tenders and the resulting impossibility to gain the experience and qualification such a project entails.
37 The applicant states, next, that it will suffer loss of opportunity and competitive advantage, significant pecuniary damage and significant harm to its credibility and reputation in the market, caused by the loss of opportunity to perform the contract in question.
38 The applicant states that ‘the ITER [toroidal field] coils project constitutes the most significant and most prestigious project in this market segment’. The market for superconducting coils for fusion and accelerators is characterised by the existence of very few significant large projects. The market is dominated by a few contracts with a value of more than EUR 50 million. Among those large projects, the contract in question for the supply of ITER toroidal field coils winding packs, with a value of roughly EUR 150 million, is by far the most significant and is greater than the sum of all other current large projects in the field of magnet coils for fusion. The applicant states that it will not be able to make up for the loss of the contract in question by performing other contracts.
39 In that regard, the applicant refers to a market study which indicates that ITER toroidal field coils are part of the market segment ‘Research and Technological Development (RTD)’ and that the worldwide volume of that market segment is estimated at EUR 765 million for 2009 and EUR 845 million for 2011. It infers therefrom that the contract in question, with a value of approximately EUR 150 million, represents approximately 19% of that market segment. [confidential] (1)
40 The applicant states that it is difficult for it to quantify the financial loss resulting from the loss of opportunity to perform the contract in question. It is therefore irreparable loss. It refers in that regard to the order of the President in Case T‑114/06 R Globe v Commission [2006] ECR II‑2627, paragraphs 117, 118 and 127).
41 The applicant adds that the seriousness of the loss of opportunity is certain, considering the experience, reputation and expertise that it would gain if it were given the opportunity to perform the contract in question. The supply of toroidal field coils winding packs involves highly specialised tasks which can be performed only by a very limited number of market operators worldwide. Considering the small number of economic operators present in the market and the significance of the contract, [confidential]. Moreover, a change in the competitive market position of an undertaking is relevant for the assessment of the seriousness of the damage justifying the granting of interim measures.
42 The applicant states that the non-performance of the contract in question represents considerable lost earnings for it, which it estimates at EUR [confidential], which is the amount it would receive if it were to be awarded the contract. Its annual turnover amounted to approximately EUR 66 million in 2009 and the contract in question represents an annual value of approximately [confidential] (for Lot A, with a duration of 61 months) or approximately [confidential] (for Lot D, with a duration of 82 months), which corresponds to approximately [confidential] (for Lot A) or [confidential] (for Lot D) of its annual turnover. Moreover, its participation in the procedure in dispute has required an investment of approximately EUR [confidential], as around [confidential] employees have been involved in the preparation and submission of the tenders. Part of that investment has, moreover, been lost, as the feasibility studies carried out for this tendering procedure cannot be re-used or adapted for the preparation of other tenders in future.
43 Lastly, the rejection of its tenders may lead to significant harm to its market reputation and have a considerable impact on its commercial activities. The applicant states, in respect of Lot D of the contract in question, that it submitted a highly competitive tender, the amount of which was well below that submitted in the consortium’s bid. It had a very good chance of winning the contract, but its tenders were unlawfully rejected; the loss of the contract does not, therefore, represent a normal risk associated with participation in a tendering procedure. The harm caused to an undertaking’s reputation is irreparable because it cannot be quantified in monetary figures.
44 The Joint Undertaking disputes the applicant’s arguments.
Findings of the President
45 It must be observed that the applicant alleges two types of damage it will suffer if the application for interim measures is dismissed: first, a financial loss consisting in a loss of opportunity and a loss of the investment made in the preparation of tenders; secondly, a non-pecuniary loss consisting in its reputation and credibility being undermined, the rejection of its tenders and the award of Lot D of the contract in question to another tenderer, which will prevent it from acquiring the experience and reputation associated with the performance of such a prestigious and exceptional contract as the one at issue. In the applicant’s submission, the loss is irreparable because it cannot be quantified.
46 It must also be noted that that loss is said to have been suffered on the occasion of a tendering procedure for the award of a contract. However, the purpose of such a procedure is to enable the authority concerned to select from a number of competing tenders that which appears to the authority to comply best with predetermined selection criteria. Therefore, a company taking part in a tendering procedure never has an absolute guarantee that it will be awarded the contract, but must always keep in mind the possibility that the contract could be awarded to another tenderer. Under those circumstances, the adverse financial consequences which the company in question would suffer as a result of the rejection of its tender have, generally, to be considered to be part of the normal commercial risk which each company active in the market must face (see order of the President of 23 January 2009 in Case T‑511/08 R Unity OSG FZE v Council and EUPOL Afghanistan, not published in the ECR, paragraphs 25 and 26 and case-law cited).
47 It follows that, in the present case, the amount of approximately [confidential] which the applicant invested, to no avail, in the preparation of its tenders, cannot in any way be taken into consideration to justify urgency, as any tenderer must be aware of the risk that its participation in tender award procedures may not be successful. That obvious fact was, moreover, expressly stated in the call for tenders in dispute, attached as Annex 1 to the application for interim measures, where the Joint Undertaking drew the attention of the tenderers to the fact that it could, before signature of the contract, either abandon or cancel the award procedure or part thereof without the tenderers being entitled to claim any compensation.
48 Next, as regards the irreparable nature of the loss resulting from a loss of opportunity, it must be borne in mind that, when the Court awards damages on the basis of assigning an economic value to the loss suffered due to a loss of earnings, that compensation must, as a rule, satisfy the requirement, laid down in the case‑law, of ensuring that the individual loss actually suffered by the party concerned because of the particular unlawful acts of which it was the victim is fully compensated (order of the President of 20 January 2010 in Case T‑443/09 R Agriconsulting Europe v Commission, not published in the ECR, paragraph 32; see also, to that effect, Case C‑348/06 P Commission v Girardot [2008] ECR I‑833, paragraph 76).
49 It follows that, should the applicant be successful in the main action, an economic value might be assigned to the loss suffered due to its loss of opportunity to be awarded the contract in question, with the result that the requirement of full compensation of the individual loss would be satisfied. Consequently, the applicant’s argument that its loss is irreparable because it is not possible to quantify the loss of opportunity to be awarded the contract in question cannot succeed (see, to that effect, order in Agriconsulting Europe v Commission, paragraph 33 and case-law cited). The applicant itself, moreover, put a figure on its alleged lost earnings and the alleged loss of market shares (see paragraphs 39 and 42 above).
50 Thus, the order in Globe v Commission, relied on by the applicant, must be considered as being superseded in that regard by the more recent case-law, since it had held that the loss of opportunity to be awarded a public contract was very difficult, if not impossible, to quantify, with the result that that loss could be held to be irreparable loss (see, to that effect, order in Agriconsulting Europe v Commission, paragraph 34).
51 It follows that the applicant has not succeeded in establishing, with a sufficient degree of probability, that the loss alleged can be held to be irreparable. It has, in particular, not demonstrated that it will be prevented from obtaining subsequent financial compensation through an action for damages pursuant to Articles 268 TFEU and 340 TFEU, it being clear that the mere possibility of being able to bring such an action establishes that such a loss is, in principle, reparable in nature (see, to that effect, order in Agriconsulting Europe v Commission, paragraph 35 and case-law cited).
52 Lastly, as regards the seriousness of the alleged financial loss, it must be borne in mind that it can be upheld only if the applicant company establishes to the requisite legal standard that it could have generated sufficiently large earnings from the award and performance of the contract in question (see, to that effect, order in Unity OSG FZE v Council and EUPOL Afghanistan, paragraph 28). The amount of that loss must be assessed having regard to the size of the company and the characteristics of the group to which it belongs through its shareholders, as the case may be (see, to that effect, orders of the President of 7 February 2006 in Case T‑437/05 R Brink’s Security Luxembourg v Commission, not published in the ECR, paragraph 57; United Phosphorus v Commission, paragraph 35; and order of 18 June 2008 in Case T‑475/07 R Dow AgroSciences and Others v Commission, not published in the ECR, paragraphs 77 to 81).
53 It follows that the applicant company, which is required to produce, with supporting evidence, a faithful overall picture of its financial situation (order of the President of 27 April 2010 in Case T‑103/10 P(R) Parliament v U, not published in the ECR, paragraph 39) must, where it belongs to a group, provide the judge hearing the application with all the elements enabling the judge to assess that company’s financial wherewithal and solidarity arising from its belonging to that group.
54 In the present case, the applicant produced, in the annex to the application for interim measures, an extract from its commercial registration. As that extract shows, on 18 November 2003 the applicant, as controlled company, concluded an agreement for control and profit transfers with BBP Service as controlling company. The applicant is thus part of a group.
55 Moreover, as can be gleaned from publicly-available sources, namely the applicant’s website, it is a company belonging to the international group Bilfinger Berger, a fact confirmed by the group’s different websites, in particular one which states that the applicant belongs to the energy and environmental technology branch of the Multi Service Group Bilfinger Berger Power Services, which, in turn, represents one of the five areas of activity of the Bilfinger Berger AG Multi Service Group. Therefore, in order to establish the seriousness of the alleged financial loss by producing a faithful overall picture of its financial situation, the applicant ought to have provided all the elements to enable an assessment to be made of the financial characteristics of the group to which it belongs.
56 It is clear, however, that the applicant provided no such evidence, which clarification should have been set out in the application for interim measures itself (see paragraph 17 above) and that, in its observations, the Joint Undertaking advised that the group to which it belongs had achieved a substantial consolidated overall turnover in 2009 (over EUR 9 billion); the loss it alleges cannot, in that light, be held to be serious.
57 In the absence of such elements, the President of the Court is unable to assess the seriousness of the alleged financial loss. In the light of the Joint Undertaking’s opposition to the interim measures, it is not possible to uphold the urgency alleged merely on the basis of unsupported assertions by the applicant. Given that the granting of interim measures is strictly exceptional in nature (see paragraph 14 above), they can be granted only where those assertions are corroborated by evidence (order in Parliament v U, paragraph 39).
58 Accordingly, the financial loss alleged by the applicant cannot justify granting the suspension of operation of the decisions as sought, without its being necessary to examine the relevance of the figures it put forward – without the slightest documentary evidence – in order to establish its loss and lost earnings.
59 Regarding the alleged non-pecuniary loss, the applicant alleges, first, harm to its reputation on the market. Suffice it to note in that regard that participation in a public tendering procedure, by nature highly competitive, involves risks for all the participants and the rejection of a tenderer’s bid under the tendering rules is not in itself in any way prejudicial. Where an undertaking’s tenders have been unlawfully rejected from a tendering procedure on grounds of non-compliance with tender specifications, there is even less reason to believe that it is liable to suffer serious and irreparable harm to its reputation, since its exclusion is unconnected with its competences and the subsequent annulling judgment will in principle allow any harm to its reputation to be made good (see, to that effect, order in Unity OSG FZE v Council and EUPOL Afghanistan, paragraph 39 and case-law cited).
60 The applicant adds that, if the interim measures sought are not granted, the unlawful rejection of its tenders will prevent it irremediably from acquiring the experience, visibility and qualifications arising from the performance of such a prestigious and exceptional contract as the one in question.
61 As regards the alleged non-acquisition of experience and qualifications, suffice it to note that the applicant itself acknowledges the specific nature of the contract in question in emphasising how it is ‘exceptional’ and ‘unique’ in fusion energy, with the result that ‘it is unlikely that comparable works will be undertaken by customers in the future’ (see paragraph 36 above). The non-ability to acquire qualifications and experience associated with the performance of the contract cannot, therefore, constitute a serious loss, severable from the financial loss arsing from the loss of the contract, especially when the applicant does not explain how it could put that experience and those qualifications to use in other commercial endeavours.
62 Regarding the alleged harm to the applicant’s prestige and visibility, suffice it to note that its commercial activities are not limited to the energy fusion sector. In the application for interim measures, the applicant states that it is active in the nuclear technology sector and provides nuclear technology, magnet technology and environmental technology services; on its website, it states that it has several decades’ experience in those sectors, listing numerous prestigious projects it has carried out.
63 In any event, even if the harm to the applicant’s visibility and prestige could be held to be serious and irreparable, the suspension of operation of the decisions as sought could be granted only if a balance of interests weighed in favour of the applicant.
Balance of interests
64 According to settled case-law, the balance of interests requires the judge hearing the application to determine whether or not the interest of the applicant in obtaining the interim measures sought outweighs the interest in the immediate application of the contested act by examining, more specifically, whether the possible annulment of the act by the Court giving judgment in the main action would make it possible to reverse the situation that would be brought about by its immediate implementation and, conversely, whether suspension of the operation of that act would be such as to prevent its full effect in the event of the main application being dismissed (see, to that effect, orders of the President in Joined Cases 76/89 R, 77/89 R and 91/89 R Radio Telefis Eireann and Others v Commission [1989] ECR 1141, paragraph 15, and Joined Cases C‑182/03 R and C‑217/03 R Belgium and Forum 187 v Commission [2003] ECR I‑6887, paragraph 142).
65 In the present case, therefore, it is appropriate to determine whether the applicant’s interest in obtaining the interim measures sought outweighs the interest in the immediate application of the rejection decisions and the contract award decision.
66 In that regard, it should be borne in mind that there has been found to be urgency only in respect of the harm allegedly caused to the applicant’s visibility and prestige, and not to any of its financial interests. The applicant’s interest is, accordingly, limited essentially to the right to make reference to the contract in question for advertising purposes.
67 Moreover, recitals 3 and 9 in the preamble to Decision 2007/198, the lawfulness of which has not been challenged by the applicant, underline the fundamental importance of the ITER project and activities for harnessing fusion as a potentially limitless, safe, sustainable, environmentally responsible and economically competitive source of energy, from which the European Union could derive significant benefit, in particular in the context of ensuring the security and diversity of its long-term energy supply. Similarly, recital 5 in the preamble to Decision 2007/198 refers to the objective of ‘enabl[ing] ITER construction to commence without delay’, whilst recitals 4 to 6 in the preamble to Decision 2007/198 state that Euratom and Japan have concluded a bilateral agreement for research as part of an approach to achieve ‘rapid realisation’ of fusion energy.
68 It follows that the granting of suspension of operation of the rejection decisions and the contract award decision, which would be granted purely for the sake of protecting a company’s advertising interests, affects directly the general interest of the European Union, including that of its citizens, in seeing prompt completion of the ITER project, the political and economic importance of which is evident. Accordingly, the balance of interests does not weigh in favour of the applicant.
69 It follows from all the foregoing that the application for interim measures must be dismissed.
On those grounds,
THE PRESIDENT OF THE COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 31 August 2010.