ORDER OF THE PRESIDENT OF THE GENERAL COURT
6 June 2024 (*)
(Interim relief – Public supply contracts – IT consultancy for EIB-specific applications – Application for interim measures – No prima facie case – Balancing of competing interests)
In Case T‑161/24 R,
NTT Data Belgique, established in Brussels (Belgium),
Sopra Steria PSF Luxembourg SA, established in Leudelange (Luxembourg),
UniSystems Luxembourg Sàrl, established in Bertrange (Luxembourg),
Netcompany – Intrasoft, established in Ixelles (Belgium),
represented by M. Troncoso Ferrer, L. Lence de Frutos, R. Fernández de la Cruz and N. Korogiannakis, lawyers,
applicants,
v
European Investment Bank (EIB), represented by G. Faedo, K. Carr and C. Solazzo, acting as Agents, and by B. Schutyser and H. Plancke, lawyers,
defendant,
THE PRESIDENT OF THE GENERAL COURT
having regard to the order of 26 March 2024, NTT Data Belgique and Others v EIB (T‑161/24 R, not published),
makes the following
Order
1 By their application under Articles 278 and 279 TFEU, the applicants, NTT Data Belgique, Sopra Steria PSF Luxembourg SA, UniSystems Luxembourg Sàrl and Netcompany – Intrasoft, seek, in essence, (i) suspension of the operation of the decision of the European Investment Bank (EIB) of 4 March 2024 to reject the tender of the applicants’ consortium (‘the consortium’) submitted in procurement procedure CFT‑1699, entitled ‘IT Consultancy for EIB-specific applications (TAILOR)’ (‘the contested decision’), and (ii) suspension of the signature of the contract in the context of that procedure.
Background to the dispute, procedure and forms of order sought by the parties
2 On 28 December 2022, by contract notice published in the supplement to the Official Journal of the European Union (OJ 2022/S, 069-181809), the EIB launched call for tenders CFT‑1699, entitled ‘IT Consultancy for EIB-specific applications (TAILOR)’.
3 The objective of that call for tenders is to award a framework agreement to up to five successful tenderers for the provision of IT consultancy services. The duration of the framework contract was set at four years, renewable twice for one year. The estimated value of the contract was EUR 195 000 000 excluding VAT.
4 On 3 April 2023, the consortium submitted a tender in the context of that procedure.
5 On 1 September 2023, the EIB sent a request for clarification to the consortium relating to the proposed prices (‘the request for clarification’), on the ground that those prices appeared to be abnormally low. In that request, the EIB referred, in essence, to the daily rates for the profiles set out by the consortium, stating that it was concerned regarding the consortium’s ability, first, to source and provide to the EIB the necessary resources regarding seniority levels, language and technical skills and, second, to provide services in the various locations listed in the call for tenders, given that the framework contract did not guarantee any minimum volumes of service and that the rates quoted by the consortium represented maximum rates. It also requested that the consortium provide it with certain specific items of information.
6 On 8 September 2023, the consortium responded to the request for clarification.
7 On 4 March 2024, the consortium was notified of the contested decision by the EIB. It stated in the decision that the clarifications submitted by the consortium on 8 September 2023 were inadequate and did not account satisfactorily for the low level of the prices offered, which rendered its tender unreliable and likely to impair the proper performance of call-off contracts under the framework agreement.
8 By application lodged at the General Court Registry on 22 March 2024, the applicants brought an action for, inter alia, annulment of the contested decision.
9 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 General Court should:
– suspend the operation of the contested decision until the Court has delivered a final judgment on the main action;
– suspend the signature of the contract in the context of procurement procedure CFT‑1699, entitled ‘IT Consultancy for EIB-specific applications (TAILOR)’ until the Court has delivered a final judgment on the main action;
– order the EIB to pay the costs.
10 In its observations on the application for interim measures, which were lodged at the Court Registry on 11 April 2024, the EIB contends that the President of the General Court should:
– cancel the order of 26 March 2024, NTT Data Belgique and Others v EIB (T‑161/24 R),
– dismiss the application for interim measures; and
– order the applicants to pay the costs.
Law
General considerations
11 It is apparent from Articles 278 and 279 TFEU, read together with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures under Article 156 of the Rules of Procedure of the General Court. However, Article 278 TFEU establishes the principle that actions brought before the European Union judicature do not have suspensory effect, since measures adopted by the institutions of the European Union enjoy a presumption of legality. It is therefore only exceptionally that the judge hearing an application for interim relief may order the suspension of operation of an act challenged before the General 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 requires applications to 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’.
13 Thus, the judge hearing an application for interim relief may order suspension of operation of an act, or 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, so that an application for interim measures must be dismissed if either of them is absent. The judge hearing an application for interim relief 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 court 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 begin by examining whether the condition relating to a prima facie case is satisfied.
The condition relating to a prima facie case
17 The requirement that a prima facie case must be established is satisfied where there is, at the stage of the interlocutory proceedings, a major legal disagreement whose resolution is not immediately obvious, so that the appeal 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 court hearing the application for interim relief must restrict itself to assessing ‘prima facie’ the merits of the grounds put forward in the main proceedings in order to ascertain whether there is a sufficiently large 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 As a preliminary point, it must be borne in mind that, when the EIB concludes public contracts on its own account, it is subject to both the fundamental rules of the FEU Treaty and the general principles of law, and the provisions of the ‘EIB’s Corporate & Technical Assistance Procurement Guide – Guide for the procurement of services, supplies, works and concessions managed by the EIB’, as interpreted in the light of the principles which those provisions are intended to put into effect and, where appropriate, the provisions of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), to which those provisions refer, Article 69(1) to (3) thereof in particular relating to abnormally low tenders (see, by analogy, judgment of 20 September 2011, Evropaïki Dynamiki v EIB, T‑461/08, EU:T:2011:494, paragraph 93).
19 It must also be noted that, regarding public procurement litigation, the 10-day standstill period flowing from point 5.1.5.3 of the ‘EIB’s Corporate & Technical Assistance Procurement Guide – Guide for the procurement of services, supplies, works and concessions managed by the EIB’ was complied with in the present case and the applicants submitted their application for interim measures before the framework agreement was concluded, within the meaning of the case-law resulting from the order of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275).
20 That case-law states that, having regard to the requirements which follow from the effective protection which must be guaranteed in public procurement matters, when an unsuccessful tenderer is able to show that there is a particularly serious prima facie case, it cannot be required to establish that the rejection of its application for interim measures risks causing it irreparable harm, otherwise the effective legal protection which it enjoys pursuant to Article 47 of the Charter of Fundamental Rights (‘the Charter’) would be undermined in a manner that is both excessive and unjustified (order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 41).
21 In the present case, the applicants raise three pleas in law alleging, first, manifest error of assessment, second, breach of the principle of proportionality and, third, infringement of the obligation to state reasons and infringement of Article 47 of the Charter.
The first plea in law
22 The applicants claim that the EIB made a manifest error of assessment in rejecting the consortium’s tender on the ground that it was abnormally low.
23 First, the applicants are of the view that it is clear from the consortium’s tender that it complies with all the applicable legislation and that the daily rates proposed cover all the costs generated in the context of the performance of the contract in question. More specifically, they argue that the minimum daily rates proposed are [confidential]% (1) higher than the legal minimum of the countries in which the services will be carried out and that their substantive total profit will be [confidential]%. Moreover, the EIB cannot base its reasoning on low levels of salaries or profit margins applied by a tenderer in order to reject a tender, having regard to the fact that, first, it is apparent from the procurement documents that the contract is to be awarded to the most economically advantageous tenders and, second, it interferes with the tenderers’ business model.
24 Second, the applicants argue that, in 2023, the EIB awarded them a contract in the context of a procurement procedure (‘the INTEGER procurement procedure’) concerning services similar to those of the procedure in question, in respect of which the maximum daily rates proposed in the tender were similar for on-site services in Luxembourg. The EIB was therefore in breach of the principles of equal treatment, legal certainty and non venire contra factum proprium.
25 The EIB disputes the applicants’ arguments.
26 It must be borne in mind that, according to settled case-law, the contracting authority enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and that review by the Court must be limited to checking compliance with procedural rules and with the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers. The contracting authority is granted such a broad margin of assessment throughout the tendering procedure, including in relation to the choice and evaluation of the selection and award criteria (see judgment of 19 October 2022, Lenovo Global Technology Belgium v Entreprise commune EuroHPC, T‑717/20, not published, EU:T:2022:640, paragraph 64 and the case-law cited).
27 In addition, in order to establish that, in the assessment of the facts, the contracting authority committed an error so obvious as to justify annulment of the decision rejecting a contract tender, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue. In other words, the plea based on the manifest error must be rejected if, in spite of the evidence put forward by the applicant, the assessment challenged may be accepted as genuine or valid (see judgment of 7 June 2017, Blaž Jamnik and Blaž v Parliament, T‑726/15, EU:T:2017:376, paragraph 38 and the case-law cited).
28 It is, moreover, apparent from Article 69(1) and (3) of Directive 2014/24 that the contracting authority is to require a tenderer to explain the price or costs proposed in the tender where that tender appears to be abnormally low and may reject the tender only where the evidence supplied does not account satisfactorily for the low level of price or costs proposed.
29 In that connection, while there is no definition of an abnormally low tender or threshold of abnormality defined in the legislation (see judgment of 10 October 2017, Solelec and Others v Parliament, T‑281/16, not published, EU:T:2017:711, paragraph 113 and the case-law cited), it is apparent from the case-law that the abnormally low nature of a tender must be assessed in relation to the service concerned. Thus, in the course of examining the abnormally low nature of a tender, the contracting authority may, for the purpose of ensuring healthy competition, take into consideration all the factors that are relevant in the light of that service (see judgment of 15 September 2022, Veridos, C‑669/20, EU:C:2022:684, paragraph 35 and the case-law cited).
30 In addition, evidence capable of arousing suspicion that a tender might be abnormally low may exist, inter alia, if it appears to be uncertain that the price proposed incorporates all the costs involved in the technical aspects of the tender or where the price proposed in a tender which has been submitted is considerably lower than the price of the other tenders submitted or than the normal market price (see, to that effect, judgment of 20 March 2024, Westpole Belgium v Parliament, T‑640/22, not published, EU:T:2024:188, paragraph 108 and the case-law cited).
31 It is also clear from the case-law that a tender that appears abnormally low raises a suspicion that the tenderer will not be able to perform according to the terms offered. This can be, for the sake of example, because the price offered appears too low or because the technical solutions proposed appear beyond the tenderer’s competence (order of 4 February 2014, Serco Belgium and Others v Commission, T‑644/13 R, EU:T:2014:57, paragraph 55).
32 In the present case, first, it is appropriate prima facie to reject the applicants’ argument that the daily rates proposed in the consortium’s tender cover all the costs generated, having regard to the fact that those rates are [confidential]% higher on average than the legal minimum of the country in which those services will be provided. Even if the salaries offered to the staff responsible for providing the services in question are much higher than the legal minimum, the level of those salaries must be assessed in relation to the level of income for professional services comparable to those covered by the call for tenders, not in relation to the legal minimum salary. The required services in the present case concern specialised IT services. By offering remuneration which might prove lower than current market rates for that type of services, the consortium could be unable to recruit the necessary staff to perform the contract under the conditions offered.
33 Second, it is appropriate to reject the applicants’ arguments that the EIB did not comply with the condition set out in the procurement documents that the contract is to be awarded to the tenderers which have submitted the most economically advantageous tenders and, moreover, that it interfered with their business model. Prima facie, such arguments are irrelevant to a situation such as the present case in which a tender is regarded as being abnormally low, given that the relevant question is whether the consortium’s tender made it possible to carry out the tasks required by the call for tenders. The contracting authority must be entitled to reject a tender in the event that, despite the clarifications provided by the tenderer, it takes the view that that tenderer will not be in a position to perform the contract according to the terms offered.
34 Third, regarding the applicants’ argument that they proposed, in the context of the INTEGER procurement procedure, daily rates similar to those in the present procurement procedure for on-site services in Luxembourg, it must first be stated that the title of seven profiles presented in those procurement procedures is identical, that is, the title ‘Test Engineer’ with the respective levels of experience of ‘junior’, ‘intermediate’, ‘senior’ and ‘specialist’ and the title ‘Project manager’ with the respective levels of experience of ‘junior’, ‘intermediate’ and ‘senior’. Next, the maximum daily rates for on-site services in Luxembourg proposed in those procurement procedures differ considerably. These were, for the INTEGER procurement procedure, respectively, EUR [confidential], [confidential], [confidential], [confidential], [confidential], [confidential] and [confidential] whereas, for the present procurement procedure, those rates were, respectively, EUR [confidential], [confidential], [confidential], [confidential], [confidential], [confidential] and [confidential].
35 It follows that, regarding six profiles submitted in the procurement procedures in question, the costs submitted in the INTEGER procurement procedure were higher than those submitted in the present procurement procedure. Admittedly, in four cases, the difference was only EUR [confidential]. However, in two cases, the costs submitted for the INTEGER procurement procedure were considerably higher, that is, EUR [confidential] higher and EUR [confidential] higher, respectively. Last, regarding another profile, the costs submitted in the INTEGER procurement procedure were EUR [confidential] lower than those submitted in the present procurement procedure.
36 Prima facie, it cannot be found, in the light of that comparison alone, that the EIB made a manifest error of assessment in considering that the daily rates proposed by the applicants for certain profiles in the context of the call for tenders in question were too low.
37 Furthermore, according to the case-law set out in paragraph 29 above, the abnormally low nature of a tender must be assessed in relation to the service concerned. The content of a tender must therefore be examined having regard to the call for tenders in respect of which it was submitted, not an earlier call for tenders. In addition, the proportion of costs which appears to be abnormally low having regard to the overall price proposed in a tender is liable to vary in the context of distinct procurement procedures.
38 Therefore, at first glance, there is also no reason to find that the EIB was in breach of the principles of equal treatment, legal certainty and non venire contra factum proprium.
39 Fourth, it must be stated that the applicants do not put forward any other arguments or evidence relating to the daily rates for the 16 profiles specified in the contested decision, particularly evidence relating to the normal salary on the relevant job market for the services in question, which could call into question the EIB’s finding that the consortium’s tender was unreliable and likely to impair the proper performance of call-off contracts under the framework agreement.
40 Fifth, by contrast, certain items of evidence support a finding that the contested decision is not vitiated by a manifest error of assessment.
41 More specifically, according to the EIB’s findings in the contested decision, having regard to the estimated volume of daily rate services, the 16 profiles specified therein were a significant part for the performance of the contracts in question, that is, 62% of on-site daily rate services and 43% of all daily rate services.
42 In addition, as submitted by the EIB, the rates set out by the applicants in their response to the request for clarification represented maximum rates on the basis of the maximum contract volume. However, the framework agreement did not guarantee a minimum service volume to each of the successful tenderers.
43 For the sake of completeness, according to the EIB, the total annual price scenario set out in the consortium’s tender was 65% lower than the EIB’s estimate and 47% lower than the average of the other tenders. In addition, regarding the unit price for the 16 profiles listed in the contested decision, the difference with the average of normally priced tenders was especially pronounced for the applicants’ daily rates relating to on-site services, as the applicants’ rates were 70.1% lower on average.
44 Having regard to the broad discretion afforded to the contracting authority regarding the evidence to be taken into consideration in the context of a procurement procedure following a call for tenders, it is thus prima facie apparent that the EIB did not make a manifest error of assessment in rejecting the consortium’s tender on the ground that it was allegedly abnormally low.
45 As a result, at first glance, the first plea does not show that a prima facie case has been made out.
The second plea in law
46 The applicants argue that the EIB is in breach of the principle of proportionality in rejecting the consortium’s tender on the sole ground that it did not meet two of the six criteria set out in Article 69 of Directive 2014/24, without having taken into consideration the other relevant factors regarding the services to be provided under the framework agreement. According to the applicants, the EIB based its reasoning exclusively on the on-site daily rates in order to find that that tender was abnormally low, without weighing those rates against the other parts of that tender which gave satisfaction to the EIB.
47 The EIB disputes the applicants’ arguments.
48 In that connection, it must be borne in mind that it is settled case-law that the principle of proportionality, which is one of the general principles of EU law, requires that acts of the EU institutions be such as to attain the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is necessary in order to achieve those objectives; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 165 and the case-law cited).
49 It must be noted at the outset that the request for clarification did not cover, contrary to the applicants’ claim, all the matters listed in Article 69(2) of Directive 2014/24. That request covered the matters in that article in part and other matters in part.
50 It must be borne in mind that, in the contested decision, the EIB considered that the applicants had failed to provide a satisfactory response regarding, inter alia, elements relating to the low level of on-site daily rates. In addition, the EIB observed that the low level of that rate for several profiles made up 62% of the estimated volume of the services at that rate. It therefore concluded that the consortium’s tender was abnormally low and considered that that tender was unreliable and likely to impair the proper performance of call-off contracts under the framework agreement.
51 As found in paragraph 44 above, that assessment does not appear prima facie to be vitiated by a manifest error of assessment.
52 In addition, the fact that the applicants had given satisfactory responses to the greater part of the questions raised in the request for clarification is irrelevant. It cannot be held that the contracting authority is in breach of the principle of proportionality where it finds, on the basis of all the evidence and information submitted by a tenderer and without making a manifest error of assessment, that the tenderer will be unable to perform the contract according to the terms offered. In such a situation, the contracting authority cannot have recourse to another appropriate, less onerous, measure.
53 In those circumstances, it cannot be held prima facie that the EIB was in breach of the principle of proportionality.
54 As a result, at first glance, the second plea does not show that a prima facie case has been made out.
The third plea in law
55 The applicants submit that the EIB infringed the obligation to state reasons and Article 47 of the Charter by failing to provide a comprehensive explanation regarding the specific part of the response to the request for clarification which allegedly does not afford credibility to the on-site daily rates detailed in the consortium’s tender. They are therefore of the view that they were unable to prepare adequately the application for annulment and the present application for interim measures. In addition, they state that the EIB did not, in that request, set out why it considered specifically that the on-site rates proposed in that tender were abnormally low and that, for that reason, they were unable to show fully and effectively that the offer is genuine.
56 The EIB disputes the applicants’ arguments.
57 According to settled case-law, the obligation to state reasons means that, in accordance with the second subparagraph of Article 296, the author of a measure must disclose in a clear and unequivocal fashion the reasoning underlying that measure so as, on the one hand, to enable the persons concerned to ascertain the reasons for the measure and thereby enable them to assert their rights and, on the other, to enable the Court to exercise its power of review (judgments of 25 February 2003, Strabag Benelux v Council, T‑183/00, EU:T:2003:36, paragraph 55; of 24 April 2013, Evropaïki Dynamiki v Commission, T‑32/08, not published, EU:T:2013:213, paragraph 37; and of 16 May 2019, Transtec v Commission, T‑228/18, EU:T:2019:336, paragraph 91).
58 Moreover, the requirement to state reasons must be assessed by reference to the circumstances of the 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. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116).
59 Regarding, more specifically, the request for clarification, which was addressed to a tenderer suspected of submitting an abnormally low tender, it is essential that that tenderer should have the opportunity effectively to state its point of view in that respect, giving it the opportunity to supply all explanations as to the various elements of its tender when it is aware, inter alia, of the precise points which have raised questions on the part of the contracting authority (see, to that effect and by analogy, judgment of 27 November 2001, Lombardini and Mantovani, C‑285/99 and C‑286/99, EU:C:2001:640, paragraph 53).
60 In the present case, in the first place, the grounds of the contested decision appear to have made it possible for the applicants to acquaint themselves with the elements of fact and law on the basis of which the EIB had rejected the consortium’s tender. That decision refers to the low level of the on-site daily rate for 16 specific profiles which it identifies and states, in essence, that the price was not justified satisfactorily by the applicants’ clarifications. As a result, prima facie, the EIB set out the essential facts and legal considerations and was not required to provide a specific and detailed analysis of the applicants’ response to the request for clarification, in so far as that response did not explain satisfactorily the low level of the on-site daily rate.
61 In the second place, by the request for clarification, the applicants appear to have been able to acquaint themselves with the precise points which raised questions on the part of the EIB. By that request, the EIB identified the daily rates of the profiles required in the context of the call for tenders as being problematic in the light, first, of the requisite attributes of those profiles and, second, of the places where the persons corresponding to those profiles were to work. Prima facie, it is therefore appropriate to consider that that information was sufficient to allow the applicants to show that the consortium’s tender was genuine.
62 It follows that, prima facie, the EIB did not infringe the obligation to state reasons or Article 47 of the Charter.
63 As a result, at first glance, the third plea does not show that a prima facie case has been made out or, a fortiori, that a particularly serious prima facie case has been made out.
64 It follows from all of the foregoing that the condition relating to a prima facie case is not satisfied in the present case.
65 In any event, it must be emphasised that, irrespective of whether the applicants have shown that the granting of the requested interim measures is urgent, the balance of competing interests does not weigh in their favour.
The balancing of competing interests
66 According to the case-law, in weighing up the different interests involved, the judge hearing the application for interim relief has to determine, in particular, whether or not the interest of the party seeking suspension of operation of the contested measure in securing that suspension outweighs the interest in the immediate application of the measure, by examining, more specifically, whether the possible annulment of the measure by the Court when ruling on the main application would allow the situation that would be brought about by its immediate implementation to be reversed and, conversely, whether suspension of operation of the measure would prevent it from being fully effective in the event of the main action being dismissed (see order of 11 March 2013, Iranian Offshore Engineering & Construction v Council, T‑110/12 R, EU:T:2013:118, paragraph 33 and the case-law cited).
67 Regarding the interests pursued by the applicants, they claim, in essence, first, that, if provisional measures are not granted, they will be deprived of the opportunity to implement the framework agreement until the judgment of the Court is delivered in the main proceedings.
68 Second, the applicants argue that the interim measures will avoid the EIB concluding contracts with tenderers whose tenders are more expensive. In addition, the EIB will avoid the risk of being ordered to pay damages in respect of the harm suffered by the applicants.
69 Third, the applicants are of the view that, should the Court uphold their action for annulment without granting any interim measure, the rights of one of the five tenderers whose tender has already been accepted and implemented will be affected. The annulment of the contested decision will produce effects retroactively and erga omnes. As a result, the procurement procedure would be replaced at the time before that decision was adopted.
70 Regarding the interests pursued by the EIB, it contends that the granting of interim measures would have a substantial detrimental effect on the performance of its core tasks, given that the assignments to be awarded on the basis of the framework agreement are crucial for the day-to-day activities of the EIB group, which includes the EIB itself and the European Investment Fund.
71 In that respect, the EIB submits that the framework agreement currently in force will expire on 30 June 2024. In addition, it states that the new framework agreement is the primary instrument for sourcing the IT profiles required for developing and maintaining its in-house applications. According to the EIB, there are a dozen lending applications which are crucial to performing its tasks. It states that, were it prevented from concluding the framework agreement, this would pose great risks to the operational stability and security of its IT systems.
72 In the present case, the balancing of competing interests weighs in the EIB’s favour. First, the framework agreement currently in force will expire in the near future, that is, 30 June 2024, and the imminent conclusion of the new framework agreement therefore appears necessary in order to ensure continuity of the IT services in question and, second, the conclusion of the framework agreement is essential to the performance of the EIB’s fundamental tasks, its lending activities in particular. The granting of interim measures might therefore compromise the smooth functioning of the EIB’s essential services and, as a result, affect the general interest of the European Union.
73 By contrast, the applicants refer, regarding interests other than those of the EIB, to financial interests, in so far as, first, they would be deprived of implementing the framework agreement during a limited period and, second, the rights of one of the five tenderers whose tender had already been accepted would be affected.
74 In addition, it must be stated that, should the applicants be successful in obtaining the annulment of the contested decision in the main proceedings, the harm they would have suffered on account of infringement of their interests could be assessed, so that any harm suffered by the applicants could be offset by a subsequent award of damages. The same applies to any harm suffered by one of the five tenderers whose tender has already been accepted, should that tenderer be excluded from the framework agreement.
75 It is therefore appropriate to find that the general interest defended by the EIB must take precedence over the interests pursued by the applicants.
76 It follows from all the foregoing considerations that the application for interim measures must be dismissed.
77 As the present order closes the proceedings for interim measures, it is appropriate to cancel the order of 26 March 2024, NTT Data Belgique and Others v EIB (T‑161/24 R, not published), adopted under Article 157(2) of the Rules of Procedure, by which the EIB was ordered to refrain from signing a contract covered by the procurement procedure under reference CFT‑1699 entitled ‘IT Consultancy for EIB-specific applications (TAILOR)’ until the order terminating the present proceedings for interim relief was made.
78 Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The order of 26 March 2024, NTT Data Belgique and Others v EIB (T‑161/24 R), is cancelled.
3. The costs are reserved.
Luxembourg, 6 June 2024.
V. Di Bucci | | M. van der Woude |