ORDER OF THE PRESIDENT OF THE GENERAL COURT
25 April 2024 (*)
(Interim relief – Public supply contracts – Technical services provided in support of the EU-Georgia bilateral agreements – Application for interim measures – No prima facie case)
In Case T‑106/24 R,
Corporate & Public Management Consulting International OÜ, established in Tallinn (Estonia), represented by C. Ginter, lawyer,
applicant,
v
European Commission, represented by S. Romoli and T. Van Noyen, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT
having regard to the order of 23 February 2024, Corporate & Public Management Consulting International v Commission (T‑106/24 R, not published),
makes the following
Order
1 By its application based on Articles 278 and 279 TFEU, the applicant, Corporate & Public Management Consulting International OÜ, seeks, in essence, first, suspension of operation of Commission Decision Ares(2024) 1081885 of 13 February 2024 relating to the call for tenders NEAR/TBS/2023/EA-RP/0125, entitled ‘EU-Georgia European Union Integration, DCFTA implementation and SME Development Facility’, rejecting the applicant’s tender as inadmissible (‘the contested decision’) and, second, suspension of the signature of the contracts between the European Commission and the other tenderers in the context of that procurement procedure.
Background to the dispute and forms of order sought by the parties
2 On 14 June 2023, the Commission launched the restricted call for tenders NEAR/TBS/2023/EA-RP/0125.
3 The object of that call for tenders is the procurement of technical services to support bilateral agreements between the European Union and Georgia.
4 The applicant, in consortia with Ecorys Nederland BV, submitted a tender in the context of that tendering procedure.
5 On 14 February 2024, the Commission notified the applicant of the contested decision. According to that decision, the consortium’s tender had not been successful, on the ground that it did not comply with the minimum requirements specified in the procurement documents, as Key Expert No 2 did not meet the minimum requirements set by the terms of reference. In addition, the Commission informed the applicant that the standstill period, that is to say, the period of 10 days during which the contracting authority refrains from signing the contract with the successful tenderer, would start to run from the day following the date on which the notification in question was sent and that, during that period, the applicant could submit its observations.
6 On the same day, the applicant sent a letter to the Commission requesting a more detailed statement of reasons for the rejection of its tender.
7 On 20 February 2024, the Commission replied to that letter, explaining that proposed Key Expert No 2 did not satisfy the condition of a minimum of 10 years as a public official and/or advisor and/or consultant in policy planning and coordination at State level. The Commission also stated that references Nos 2 and 9, relating to Key Expert No 2, could not, in whole or in part, be taken into account for the purpose of satisfying that condition.
8 By application lodged at the Registry of the General Court on 22 February 2024, the applicant brought an action seeking, inter alia, annulment of the contested decision.
9 By a separate document, lodged at the Court Registry on the same date, the applicant brought the present application for interim measures, in which it claims that the President of the General Court should:
– order the suspension of operation of the contested decision until the Court has given a final ruling on the main action;
– suspend the signature of the contracts between the Commission and the other tenderers in the restricted procurement procedure NEAR/TBS/2023/EA-RP/0125 until the Court has given a final ruling on the main action;
– where appropriate, suspend the execution of those contracts until the Court has given a final ruling on the main action;
– order the Commission to pay the costs.
10 In its observations on the application for interim measures, which were lodged at the Court Registry on 7 March 2024, the Commission contends that the President of the General Court should:
– cancel the order of 23 February 2024, Corporate & Public Management Consulting International v Commission (T‑106/24 R, not published), suspending the operation of the contested decision until the order terminating the proceedings for interim relief, even before the Court has given a final decision on the application for interim measures;
– dismiss the application for interim measures as inadmissible and, in any event, as unfounded;
– order the applicant to pay the costs.
Law
General considerations
11 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
12 The first sentence of Article 156(4) of the Rules of Procedure provides that applications 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 measure applied for’.
13 The judge hearing an application for interim measures may thus order suspension of operation of an act and other 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, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
14 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular 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 assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
15 Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
16 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to the establishment of a prima facie case is satisfied.
The condition relating to the establishment of a prima facie case
17 It must be borne in mind that the condition requiring that there be a prima facie case is satisfied where there is, at the stage of the interim proceedings, a major legal disagreement the solution to which is not immediately obvious, so that the action is not prima facie without reasonable substance. Since the purpose of the interim proceedings is to guarantee that the final decision to be taken is fully effective, in order to avoid a lacuna in the legal protection ensured by the Courts of the European Union, the judge hearing the application for interim measures must restrict his or her assessment to the prima facie merits of the grounds put forward in the main proceedings in order to ascertain whether there is a sufficiently high probability of success of the action (see order of 8 April 2014, Commission v ANKO, C‑78/14 P-R, EU:C:2014:239, paragraph 15 and the case-law cited).
18 In that regard, in support of the application for interim measures, the applicant puts forward two pleas in law.
The first plea in law
19 The applicant submits that the Commission infringed Article 168(6) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), by rejecting its tender in so far as the Commission made a manifest error of assessment while evaluating that tender.
20 In support of that assertion, the applicant maintains that, during that evaluation, the Commission disregarded the facts relating to Key Expert No 2 which were submitted to it.
21 The Commission disputes the applicant’s arguments.
22 In the present case, in order to call into question the assessment made by the Commission when evaluating the tender at issue, the applicant confines itself, in essence, to claiming that the Commission’s error is clearly apparent from a comparison of the requirements specified in the procurement documents with the applicant’s tender.
23 It must be observed, however, that the applicant does not put forward any argument capable of supporting its assertion that Key Expert No 2 meets the requirements laid down in the procurement documents and, in particular, the requirements relating to the requisite professional experience. Nor does it produce, as an annex to its application for interim measures, the procurement documents and its tender, or cite the relevant extracts from those documents or tender.
24 In that regard, it should be recalled that, under Article 156(5) and Article 76(d) of the Rules of Procedure, an application for interim measures must, inter alia, be made by a separate document, indicate the subject matter of the proceedings and contain a summary of the pleas in law and arguments relied on.
25 It is apparent from the case-law that an application for interim measures must be sufficiently clear and specific in itself to enable the defendant to prepare its observations and the judge hearing the application to give a ruling, where necessary, without other supporting information, the essential elements of fact and law on which it is founded being set out in a coherent and comprehensible fashion in the actual application for interim measures (orders of 30 April 2010, Ziegler v Commission, C‑113/09 P(R), not published, EU:C:2010:242, paragraph 13, and of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 39).
26 Moreover, taking into account the expedition which naturally characterises proceedings for interim relief, it is a reasonable requirement to make of the party seeking the interim measures that, save in exceptional cases, he, she or it submit at the time when the application is made all the evidence available in support of that application, so that the judge hearing the application can assess, on that basis, whether the application is well founded (order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 56 and the case-law cited).
27 An application for interim measures that fails to set out the facts and evidence which should be included in the application as essential elements of the conditions for the grant of the interim measures sought and which, moreover, could be set out in that application does not meet those requirements, since the applicant was not unable to rely on them when that application was made (see, to that effect, order of 11 November 2011, Nencini v Parliament, C‑530/10 P(R), not published, EU:C:2011:729, paragraph 31).
28 It must be held that, since the claims made by the applicant in the context of the present plea are extremely laconic and unsupported by any evidence, the Commission is not in a position to prepare its defence and the Court is not in a position to exercise its power of review. Accordingly, the arguments put forward by the applicant in the context of the present plea must be rejected as inadmissible in the light of Article 76(d) of the Rules of Procedure.
The second plea in law
29 The applicant submits that, by rejecting its tender, the Commission infringed, in three ways, Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
30 First, it maintains that the Commission infringed the duty of care by failing to carry out the necessary checks in respect of its tender and by concluding that that tender did not comply with the terms of reference. The applicant argues that it submitted all the necessary information on Key Expert No 2, in accordance with those terms of reference.
31 Secondly, the applicant submits that the Commission failed to comply with the obligation to state reasons by not providing an adequate rationale for the contested decision. It maintains that the additional explanations provided by the Commission subsequently, during the 10-day standstill period, cannot be taken into account in order to determine whether it complied with that obligation. Therefore, it argues, the mere finding that Key Expert No 2 did not meet the minimum requirements set by the terms of reference is not sufficient to provide a statement of reasons for the contested decision, given that at least seven requirements are listed in those terms of reference. According to the applicant, the contested decision is also unclear and does not allow the Court to determine whether it is proportionate.
32 Thirdly, the applicant submits that the Commission infringed its right to be heard since it was deprived of the opportunity to make its views known before the rejection of its tender. The applicant adds, in that regard, that it is unusual for the Commission not to put clarificatory questions to the tenderer.
33 The Commission disputes the applicant’s arguments.
34 In the first place, as regards the alleged infringement of the duty of care, the applicant does not put forward any argument or evidence making it possible to verify the claim that it provided the Commission with all the necessary information concerning the ability of Key Expert No 2. It is therefore not clear what the Commission should have examined in order to comply with the duty of care relied on by the applicant. It follows that the argument alleging infringement of that duty must be rejected as inadmissible, in accordance with Article 76(d) of the Rules of Procedure and the case-law cited in paragraphs 25 to 27 above.
35 In the second place, as regards the alleged infringement of the obligation to state reasons, it should be noted that, under Article 170(2) of Regulation 2018/1046, the contracting authority is to notify all tenderers, whose tenders are rejected, of the grounds on which the decision was taken.
36 The statement of reasons required by Article 296 TFEU must show clearly and unequivocally the reasoning of the author of the contested measure, so as to enable the persons concerned to ascertain the reasons for it in order to defend their rights and to enable the Courts of the European Union to exercise their power of review (see judgment of 23 September 2009, Poland v Commission, T‑183/07, EU:T:2009:350, paragraph 136 and the case-law cited).
37 It should be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (judgment of 17 October 2012, Evropaïki Dynamiki v Court of Justice, T‑447/10, not published, EU:T:2012:553, paragraph 73).
38 Moreover, it is clear from the case-law that, if the institution concerned sends a letter in response to a request seeking additional explanations concerning a decision before an action is brought, that letter may also be taken into account when the Court considers whether the statement of reasons in the case in question was adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time when proceedings were brought, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement (judgment of 14 January 2015, Veloss International and Attimedia v Parliament, T‑667/11, not published, EU:T:2015:5, paragraph 56).
39 In the present case, in the light of the case-law cited in paragraph 38 above, the answer to the question whether the Commission met the requirements of the obligation to state reasons must, prima facie, be examined by taking into account both the contested decision and the Commission’s letter of 20 February 2024, which was sent to the applicant in response to its request for detailed explanations relating to the rejection of its tender.
40 In that regard, the applicant does not put forward any argument or evidence making it possible to understand in what respects the Commission should have provided it with a more detailed statement of reasons than the one set out in the contested decision and in the letter of 20 February 2024.
41 It must be held that, by the contested decision, the applicant was informed that its tender did not comply with the minimum requirements specified in the procurement documents, on the ground that Key Expert No 2 did not meet the minimum requirements set by the terms of reference. The Commission’s letter of 20 February 2024 states that that key expert did not satisfy the condition of a minimum of 10 years as a public official and/or advisor and/or consultant in policy planning and coordination at State level. It also identifies the 11 references fulfilling the criteria, excluding reference No 2 and stating that, with respect to reference No 9, a total of 193 days out of the 1 100 days proposed had been counted during which the candidate had performed the duties of a political adviser.
42 It follows that the Commission thus appears to have communicated to the applicant the grounds on which its tender was rejected, namely the fact that Key Expert No 2 did not reach the relevant threshold of professional experience set by the terms of reference, by identifying, among the 12 references, the two which did not fulfil, in whole or in part, the relevant criterion. The applicant was therefore able to acquaint itself, in accordance with the requirements of Article 170(2) of Regulation 2018/1046, with the elements of fact and law on the basis of which the contracting authority had rejected its tender.
43 It cannot therefore be concluded, prima facie, that the Commission failed to comply with the obligation to state reasons for the contested decision.
44 In the third place, as regards the alleged infringement of the right to be heard, it is apparent from the case-law that that right, enshrined in Article 41 of the Charter, guarantees every person the opportunity to make known his, her or its views effectively during an administrative procedure and before the adoption of any decision liable to affect that person’s interests adversely (see judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 39 and the case-law cited).
45 In that regard, it is apparent from the case-law that, first, Article 41(2)(a) of the Charter also applies to procurement procedures and, second, tenderers must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. That right is safeguarded at the time when they submit their tenders, and by the fact that tenderers can request clarifications with respect to the provisions of the tender specifications. The fact that no subsequent stage is envisaged in which to provide supplementary explanations, after the tenders have been evaluated, cannot therefore amount to an infringement of Article 41(2)(a) of the Charter (see, to that effect, judgment of 14 June 2023, Instituto Cervantes v Commission, T‑376/21, under appeal, EU:T:2023:331, paragraph 149).
46 Consequently, in the present case, the fact that the Commission did not, following the evaluation of the applicant’s tender and before the notification of the contested decision, place that applicant in a position in which it could make known its views as regards the potential rejection of that tender does not appear, prima facie, to infringe the right to be heard protected by Article 41(2)(a) of the Charter.
47 It must therefore be held that, prima facie, the applicant’s right to be heard was respected.
48 It should be added that the case-law relied on by the applicant in support of its arguments (Opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases SECAP and Santorso, C‑147/06 and C‑148/06, EU:C:2007:711) is not applicable in the present case since those cases concern the specific context of abnormally low tenders and, moreover, is not such as to call into question the conclusion set out in paragraph 46 above.
49 As regards the applicant’s argument that it is unusual for the Commission not to put clarificatory questions to the tenderer, the applicant does not put forward any evidence or rely on any circumstances, such as the presence of an obvious clerical error in the tender or an oversight in the submission of supporting documents, which should have prompted the Commission to ask it for missing information or to clarify the supporting documents. On the contrary, the applicant merely makes a vague and general assertion.
50 Therefore, prima facie, the applicant cannot accuse the Commission of having infringed its right to be heard by, inter alia, not seeking clarifications from it before adopting the contested decision.
51 It follows from the foregoing that the present plea in law is not capable of demonstrating that there is a prima facie case nor, a fortiori, that there is a particularly serious prima facie case within the meaning of the order of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275, paragraph 41).
52 In the light of all of the foregoing, since the applicant has not succeeded in establishing a prima facie case, the present application for interim measures must be dismissed without it being necessary to examine the other conditions referred to in paragraphs 12 and 13 above.
53 Since the present order closes the proceedings for interim relief, the order of 23 February 2024, Corporate & Public Management Consulting International v Commission (T‑106/24 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure, under which the operation of the contested decision was suspended until the date of the order terminating the present proceedings for interim relief, must be cancelled.
54 Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The order of 23 February 2024, Corporate & Public Management Consulting International v Commission (T‑106/24 R), is cancelled.
3. The costs are reserved.
Luxembourg, 25 April 2024.
V. Di Bucci | | M. van der Woude |