Order of the President of the General Court of 30 September 2011 – Elti v Delegation of the European Union to Montenegro

(Case T-395/11 R)

Application for interim measures – Public procurement – Tendering procedure – Rejection of a tender – Application for suspension of operation of a measure – Disregard of formal requirements – Inadmissibility

1.                     Applications for interim measures – Conditions for admissibility – Application – Formal requirements – Statement of the pleas in law establishing a prima facie case for granting the measures sought (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see para. 10)

2.                     Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Serious and irreparable damage – Irreparable character of the damage – Assessment based only on uncertainty whether financial loss remediable by a possible action for compensation – Inadmissibility (Arts 268 TFEU, 278 TFEU, 279 TFEU and 340, second para., TFEU) (see para. 12)

3.                     Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Burden of proof – Financial loss – Assessment having regard to the size of the undertaking and the situation of the group to which it belongs – Jurisdiction of the Court hearing the application for interim relief (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 13, 15)

4.                     Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Loss of opportunity arising from the exclusion of a tenderer from a tendering procedure – Loss not in itself constituting serious damage (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see para. 14)

5.                     Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Serious and irreparable damage – Decision to exclude a tenderer from a tender procedure – Damage to its reputation – Damage which cannot be regarded as irreparable (Art. 278 TFEU ; Rules of Procedure of the General Court, Art. 104(2)) (see para. 16)

Re:

APPLICATION for the suspension of operation of the decision of the Delegation of the European Union to Montenegro of 21 March 2011 rejecting the tender submitted by the applicant in the public procurement procedure EuropeAid/129435/C/SUP/ME-NP and containing the information that that contract had been awarded to another tenderer.

Operative part

1. The application for interim measures is dismissed.

2. The costs are reserved.