ORDER OF THE PRESIDENT OF THE GENERAL COURT
30 September 2011 (*)
(Application for interim measures – Public procurement – Tendering procedure – Rejection of a tender – Application for suspension of operation of a measure – Disregard of the formal requirements – Inadmissibility)
In Case T‑395/11 R,
Elti d.o.o., established in Gornja Radgona (Slovenia), represented by N. Zidar Klemenčič, lawyer,
applicant,
v
Delegation of the European Union to Montenegro, represented initially by N. Bertolini, acting as Agent, and subsequently by J. Stuyck and A.‑M. Vandromme, lawyers,
defendant,
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,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Procedure and forms of order sought
1 By application lodged at the Court Registry on 26 July 2011, the applicant – Elti d.o.o., a company governed by Slovenian law – brought an action for (i) annulment of the decision of the Delegation of the European Union to Montenegro (‘the Delegation’) of 21 March 2011 rejecting the tender which the applicant had submitted in the procedure for awarding a public contract entitled ‘Support to the Digitalisation of the Montenegrin Public Broadcasting – Supply of equipment, Montenegro’ (EuropeAid/129435/C/SUP/ME-NP) and containing the information that that contract had been awarded to another tenderer (‘the contested decision’) and (ii) an order directing the Delegation to pay the applicant compensation for the damage suffered, namely a loss of profit in the amount of EUR 172 541.56, if the contract at issue has already been performed. The applicant claims, inter alia, that the Delegation acted in a discriminatory manner by giving the successful tenderer an advantage which resulted in the award of the contract to that tenderer.
2 By separate document, lodged at the Court Registry on 27 July 2011, the applicant made the present application for interim measures, by which it claims, in essence, that the President of the General Court should suspend the operation of the contested decision and, if the supply contract at issue has already been concluded, the operation of that contract. Subsequently, by document of 9 August 2011, the applicant replied to a question put by the Court Registry concerning the legal capacity of the Delegation to act as defendant in the present proceedings.
3 In its written observations, lodged at the Court Registry on 22 August and 12 September 2011, the Delegation contends that the President of the Court should:
– dismiss the application for interim measures as inadmissible or unfounded;
– order the applicant to pay the costs.
4 By document of 8 September 2011, the European Commission replied to the question put by the Court Registry (see paragraph 2 above).
Law
5 In accordance with Articles 278 TFEU and 279 TFEU, read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that application of a measure challenged before the General Court be suspended or prescribe any necessary interim relief. Nevertheless, Article 278 TFEU lays down the principle that actions do not have suspensory effect, since measures adopted by the institutions, organs and agencies of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing the application may order suspension of operation of such a measure, or other interim relief (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 the case-law cited).
6 Furthermore, Article 104(2) of the Rules of Procedure of the General Court 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 measures applied for.
7 Failure to comply with the Rules of Procedure constitutes an absolute bar to proceedings, and thus it for the judge hearing the application for interim measures to consider of his own motion, at the outset, whether the applicable provisions of those Rules have been complied with (order of the President of 7 May 2002 in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 43; order of the President of 2 August 2006 in Case T‑163/06 R BA.LA. Di Lanciotti Vittorio and Others v Commission, not published in the ECR, paragraph 35; and order of the President of 25 April 2008 in Case T‑41/08 R Vakakis v Commission, not published in the ECR, paragraph 41). In the light of the wording of the present application for interim measures, it must be examined whether that application complies with Article 104(2) of the Rules of Procedure and may therefore be regarded as admissible.
8 It must be ascertained, inter alia, whether the account of the facts given in the application for interim measures is sufficiently specific to enable the condition relating to urgency to be examined.
9 In that regard, it should be borne in mind that the urgency of an application for interim measures, referred to in Article 104(2) of the Rules of Procedure, must be assessed in relation to the necessity for an order granting interim relief so as to prevent serious and irreparable damage to the party seeking such relief. It is not sufficient to satisfy the requirements of that provision merely to allege that the operation of the measure the suspension of operation of which is sought is imminent; rather, it is for the party seeking such relief to adduce evidence that it cannot wait for the outcome of the main proceedings without suffering damage of that kind. In order to determine whether the alleged damage is serious and irreparable and therefore justifies, by way of exception, suspension of the operation of the contested decision, the judge hearing the application for interim measures must have hard information making it possible to determine with precision the consequences which would probably arise if the measures sought were not granted (order of the President of 14 November 2008 in Case T‑398/08 R Stowarzyszenie Autorów ZAiKS v Commission, not published in the ECR, paragraphs 31 and 43). The party seeking the interim measures must accordingly produce information, supported by documents, capable of producing a true overall picture of its financial situation (see, to that effect, order of the President of 7 May 2010 in Case T‑410/09 R Almamet v Commission, not published in the ECR, paragraphs 32, 57 and 61, upheld on appeal by order of the President of the Court of Justice of 16 December 2010 in Case C‑373/10 P(R) Almamet v Commission, not published in the ECR, paragraph 24).
10 It is settled case-law, moreover, that that true overall picture of the applicant’s financial situation must be provided in the body of the application for interim measures. Such an application must be sufficiently clear and precise 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, it being necessary for the essential facts and points of law on which the applicant relies to be set out in a coherent and comprehensible fashion in the actual application for interim measures (order of the President of 31 August 2010 in Case T‑299/10 R Babcock Noell v Joint Undertaking Fusion for Energy, not published in the ECR, paragraph 17; 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).
11 In the present case, in order to establish that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable damage, the applicant states in the application for interim measures that it has a strong interest in being awarded the contract since its business strategy is to expand its business in the geographical area referred to and that this contract is crucial for its success. The applicant maintains, in essence, that if the suspension of operation of the contested decision were not granted, not only would it lose the profit from the contract in question but its position in the market would be irrevocably affected, causing serious harm to its future business activities. The applicant submits that the successful tenderer and itself are business rivals and often compete for the same contracts. Every reference relating to a contract which has been awarded is important and can represent a significant advantage on future occasions. The applicant adds that the direct impact of the loss of the contract at issue corresponds to EUR 172 541.56 in loss of profit, an amount arrived at by subtracting the direct costs linked to performance of the contract, plus operating expenses, from the total price offered in the applicant’s tender. Accordingly, the applicant claims that, since the damages paid by the Delegation could not represent full reimbursement, operation of the contested decision and the contract at issue, if already concluded, should be suspended.
12 As regards the financial damage allegedly caused by the loss of the contract at issue, expressly set at EUR 172 541.56, the applicant has failed to provide any evidence to establish that financial compensation for that damage could not be provided subsequently, given that, according to well-established case-law, the possibility of bringing an action for damages under Articles 268 TFEU and 340 TFEU is in itself sufficient to demonstrate that such damage is, as a rule, reparable. As it is, such evidence was all the more necessary in the present case since the applicant has brought an action seeking compensation for the loss of profit (EUR 172 541.56) occasioned by the contested decision (see paragraph 1 above) and given that, according to long established case-law, there is no need to take account of the uncertain outcome of such an action for damages (see, to that effect, order of the President of 14 December 2001 in Case C‑404/01 P(R) Commission v Euroalliages and Others [2001] ECR I‑10367, paragraphs 70 to 75, and order of the President of 24 April 2009 in Case T‑52/09 R Nycomed Danmark v EMEA, not published in the ECR, paragraphs 72 and 73).
13 Moreover, the applicant has not provided evidence to establish that the loss of the contract at issue would be liable to imperil its financial viability before final judgment is given in the main action or to give rise to a change which is irremediable and substantial in relation to the size of its business and its market share. Furthermore, the applicant has provided no specific information whatsoever regarding its financial situation, to enable the President of the Court to assess the seriousness of the alleged financial loss, even though it falls to the applicant to establish to the requisite legal standard in the application for interim measures itself – by specifying the amount of the loss of profit in relation to the size of its business – that it is possible for it to generate sufficiently large earnings from the award and performance of the contract in question (see, to that effect, order in Babcock Noell v Joint Undertaking Fusion for Energy, paragraph 52 and the case-law cited).
14 Evidence to establish the seriousness of the damage alleged was necessary a fortiori because, according to well-established case-law, the loss of an opportunity to be awarded a public contract cannot be regarded as constituting in itself serious damage, as such a loss forms an integral aspect of exclusion from the tendering procedure in question, the purpose of such a procedure being to enable the authority concerned to select from among a number of competing bids the tender which appears to that authority to be the most appropriate, which means that an undertaking taking part in a tendering procedure must always keep in mind the possibility that the contract might be awarded to another tenderer (see, to that effect, 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 to 27 and the case-law cited).
15 In so far as the applicant maintains that the contract at issue is ‘crucial for its success’ and to ‘the course of [its] further business activity’ because it and the tenderer to whom the contract was awarded ‘often compete for the same contracts’, and that ‘every reference is important and could be a significant advantage in further opportunities’, it is sufficient to note that these are merely vague and unsupported assertions and, as such, not open to verification by the President of the Court. Given that the granting of interim measures is strictly by way of exception (see paragraph 5 above), assertions of this kind – which are not supported by hard information, accompanied by sufficient evidence – do not make it possible for the President of the Court to determine with precision the consequences which would probably arise if the measures sought were refused. In particular, the applicant has failed to adduce evidence on the basis of which it could be determined whether the loss of the contract at issue is in itself enough to prevent the applicant from participating in the future in any tendering procedures launched by the Delegation in the same sphere of activities.
16 Lastly, in so far as the application for interim measures can be interpreted as meaning that the applicant intends to plead damage to its reputation on the market, suffice it to note that participation in a public procurement procedure, by nature highly competitive, involves risks for all the participants and that the rejection of a tenderer’s bid under the tendering rules is in no way detrimental in itself. Where the tenders submitted by an undertaking have been unlawfully rejected from a tendering procedure, there is even less reason to believe that that undertaking is liable to suffer serious and irreparable harm to its reputation, since the rejection of its tenders is unconnected with its competences and the subsequent judgment annulling the unlawful act will in principle make it possible for any harm caused to the undertaking’s reputation to be made good (see, to that effect, order in Unity OSG FZE v Council and EUPOL Afghanistan, paragraph 39 and the case-law cited).
17 Consequently, the present application for interim measures must be dismissed as inadmissible inasmuch as the statement of reasons set out in that application does not meet the requirements laid down in Article 104(2) of the Rules of Procedure, without it being necessary to rule on the other issues of admissibility raised in the present case.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 30 September 2011.