ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
20 September 2005 (*)
(Interim measures – Community tendering procedure – Loss of an opportunity – Urgency – Balance of interests)
In Case T‑195/05 R,
Deloitte Business Advisory NV, established in Brussels (Belgium), represented by D. Van Heuven, S. Ronse and S. Logie, lawyers, with an address for service in Luxembourg,
applicant,
v
Commission of the European Communities, represented by L. Pignataro-Nolin and E. Manhaeve, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for interim measures seeking, first, an order suspending the operation of (1) the Commission decision rejecting the tender submitted inter alia by the applicant under the tendering procedure bearing reference SANCO/2004/01/041 and (2) the decision to award the contract in question to a third party and, secondly, an order prohibiting the Commission (1) from informing the successful tenderer of the decision awarding the contract in question and (2) from proceeding with signature of the relevant contract, on pain of a periodic penalty payment,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Legal context
1 The award of Commission service contracts must comply with the provisions of Title V of Part One of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1: ‘the Financial Regulation’) and the provisions of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1; ‘the detailed implementing rules’).
2 Under Article 94 of the Financial Regulation:
‘Contracts may not be awarded to candidates or tenderers who, during the procurement procedure:
(a) are subject to a conflict of interest …’
3 Article 138 of the detailed implementing rules provides:
‘1. Contracts shall be awarded in one of the following two ways:
(a) under the automatic award procedure, in which case the contract is awarded to the tender which, while being in order and satisfying the conditions laid down, quotes the lowest price;
(b) under the best-value-for-money procedure.’
2. The tender offering the best value for money shall be the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.
...’
4 Under Article 146(3) of the detailed implementing rules:
‘Requests to participate and tenders which do not satisfy all the essential requirements set out in the supporting documentation for invitations to tender or the specific requirements laid down therein shall be eliminated.
However, the evaluation committee may ask candidates or tenderers to supply additional material or to clarify the supporting documents submitted in connection with the exclusion and selection criteria, within a specified time-limit.
...’
5 Article 147(3) of the detailed implementing rules provides:
‘The contracting authority shall ... take its decision giving at least the following:
(a) the name and address of the contracting authority, and the subject and value of the contract or of the framework contract;
(b) the names of the candidates or tenderers rejected and the reasons for their rejection;
(c) the names of the candidates or tenderers to be examined and the reasons for their selection;
(d) the reasons for the rejection of tenders found to be abnormally low;
(e) the names of the candidates or contractor selected and the reasons for that choice by reference to the selection and award criteria announced in advance and, if known, the proportion of the contract or the framework contract which the contractor intends to subcontract to third parties;
(f) in the case of negotiated procedures, the circumstances referred to in Articles 126, 127, 242, 244, 246 and 247 which justify their use;
(g) where appropriate, the reasons why the contracting authority has decided not to award a contract.’
Facts and procedure
6 On 14 December 2004, the Commission published in the Supplement to theOfficial Journal of the European Union (OJ 2004 S 243) a contract notice for the award of a framework contract entitled ‘evaluation framework contract covering the policy areas of DG Health and Consumer Protection, Lot 1 (public health) – call for tenders SANCO/2004/01/141’ (that framework contract and the award procedure for the framework contract are hereinafter referred to, respectively, as ‘the framework contract’ and ‘the tendering procedure’).
7 According to Sections 7.1.3 and 7.1.4 of the specifications relating to the tendering procedure, the framework contract relates in particular to the evaluation of the programme of Community action in the field of public health established by Decision No 1786/2002/EC of the European Parliament and of the Council of 23 September 2002 adopting a programme of Community action in the field of public health (2003-08) (OJ 2002 L 271, p. 1).
8 The specifications divide the tasks to be carried out under the framework contract into two main tasks. The first task (‘Main Task 1’) is to conduct studies and to provide services intended to assist in the design and preparation of Community programmes or policies, their ex ante assessment and the ‘organisation of evaluation activities’. The second task (‘Main Task 2’) is to carry out mid-term, final and ex post evaluations of programmes, policies and other activities.
9 The framework contract must allow specific contracts to be concluded in accordance with the Commission’s needs. In addition, it must be concluded in principle for a period of 24 months and may be renewed for two further periods of 12 months.
10 The specifications also set out several grounds for the exclusion of tenderers. One of those grounds reproduces Article 94 of the Financial Regulation:
‘Contracts may not be awarded to candidates or tenderers who, during the procurement procedure:
(a) are subject to a conflict of interest ...’
11 With a view to tendering for the contract in question, Deloitte Business Advisory NV (‘the applicant’) joined forces with the London School of Hygiene and Tropical Medicine, the Nederlandse Organisatie voor toegepast-natuurwetenschappelijk onderzoek (Netherlands Organisation for Applied Scientific Research, TNO) and the Istituto superiore di sanità (Italian National Health Institute). Those four entities formed the European Public Health Evaluation Task Force (Euphet). Euphet proposed using certain experts from other institutions where necessary.
12 On 10 February 2005, Euphet submitted a tender to the Commission under the tendering procedure. Euphet’s tender includes a paragraph with the heading ‘Independence’, which reads as follows:
‘Euphet understands and accepts that none of the evaluation organisations or their staff should have the slightest existing or potential conflict of interest in the performance of their task under the framework contract. We confirm that all the participants in Euphet are entirely independent of the Commission and that we do not foresee any risk in this regard at present. Furthermore, we undertake to conduct a detailed prior check in connection with each specific contract in order to ensure that the teams we propose are composed of members who are able to work in complete independence and to provide an objective and independent external assessment. If, in the course of execution of the projects, the slightest problem should arise which could have a bearing on this key principle, we would notify the Commission immediately and work with it to seek to rectify the situation.’
13 By a letter of 22 April 2005 (‘the decision rejecting the tender’), the Commission informed the applicant that the evaluation committee for the contract had found there to be risks of conflicts of interest within Euphet. In the decision rejecting the tender, the Commission notes that certain of Euphet’s members and partners hold grant contracts in ‘SANCO’s area of activities’ (health and consumer protection) and thus have a significant involvement in the implementation of the programme of Community action in the field of public health. The Commission therefore considers that ‘in view of the considerable risk of [a conflict of interest], a detailed specific explanation would have been needed to give an adequate understanding of the way in which the matter of [conflicts of interest] could be resolved and the associated risks eliminated’. In those circumstances, in the view of the Commission, ‘the proposed approach is not adequate and the tenderer has not provided a satisfactory guarantee that the [conflicts of interest] will be eliminated’.
14 In the decision rejecting the tender, the Commission nevertheless adds that it will not sign the framework contract with the successful tenderer until a period of two weeks has passed.
15 By a letter dated 3 May 2005, Euphet contested the Commission’s position and inter alia requested it to respond by 4 May 2005, failing which it would refer the matter to the Court of First Instance.
16 By a fax of 4 May 2005, the Commission acknowledged receipt of the letter from Euphet and stated:
‘Because we need more time to examine the questions raised in your letter, we will not proceed with the signing of the contract for a further period of 15 days from the date on which this letter was sent.’
17 By a fax of 19 May 2005, the Commission responded to the arguments put forward by the applicant in its letter of 3 May 2005.
18 By a fax of the same date, the applicant lodged an action for annulment before the Court of First Instance by which it contests the legality of the decision rejecting the tender and of the decision to award the contract to another tenderer (‘the award decision’).
19 On the same date, the applicant submitted an application for interim measures in which it claims essentially that the President of the Court of First Instance, acting in his capacity as the judge hearing the application for interim relief, should:
– order the suspension of the operation of the decision rejecting the tender and of the award decision;
– prohibit the Commission from informing the successful tenderer of the award decision and from signing the relevant contract, on pain of a periodic penalty payment of EUR 2.5 million;
– order the Commission to pay the costs.
20 In its application for interim measures, the applicant also asks the President of the Court of First Instance to prohibit the defendant, as a precautionary measure and if possible before ruling on the application for suspension of operation, from informing the successful tenderer of the award decision and from signing the framework contract until the Court of First Instance has ruled on the main action, on pain of a periodic penalty payment of EUR 2.5 million for each infringement.
21 By letter of 23 May 2005, the Commission informed the Court that the contract covered by the procedure bearing reference SANCO/2004/01/041 had not yet been signed. In the same letter, the Commission stated that the framework contract had been sent to the selected tenderer to be signed with a reply deadline of 1 June 2005 and, in accordance with the applicable procedures, that contract would be signed by the Commission’s authorised representative after it had been returned by the other party, without a deadline having been set for that purpose.
22 On 26 May 2005, on the basis of Article 105(2) of the Rules of Procedure of the Court of First Instance, the President of the Court of First Instance ordered the Commission not to sign the framework contract until an order had been made on the application for interim measures.
23 On 30 May 2005, the Commission submitted observations on the application for interim measures in which it contended that the application should be dismissed and that the applicant should be ordered to pay the costs.
24 At the invitation of the President of the Court of First Instance, the applicant responded to those observations on 13 June 2005. The Commission in turn responded to these new observations on 23 June 2005.
Law
25 Article 104(2) 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 measures applied for. Those conditions are cumulative so that an application for interim measures must be rejected if one of them is absent (order of the President of the Court of Justice in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). In an appropriate case, the President has also to weigh up the interests at stake (order of the President of the Court of Justice in Case C-445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).
26 Moreover, in the context of that overall examination the judge hearing the application enjoys a wide margin of discretion and remains free to determine, in the light of the particular features of the case, the way in which those different conditions have to be verified and the order of priority of that examination since there is no rule of Community law imposing on him a predetermined analytical model for assessing the need for an interim decision (order of the President of the Court of Justice in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 23).
27 It is in the light of those considerations that the present application for interim measures falls to be examined.
1. Arguments of the parties
Admissibility of the application for interim measures
28 In its observations of 30 May 2005, the Commission states that it informed the successful tenderer in the tendering procedure that its tender had been selected by a letter of 22 April 2005. The Commission therefore takes the view that the applicant’s request for an order prohibiting the Commission from informing the successful tenderer of the award decision is devoid of purpose.
Prima facie case
Arguments of the applicant
29 The applicant relies on two pleas in support of its main application.
– The first plea
30 In its first plea, the applicant claims essentially that Euphet’s exclusion from the tendering procedure by the Commission infringes Article 94 of the Financial Regulation, the provisions of the tender documents, the principle of protection of legitimate expectations, the general obligation to state reasons and Articles 147(3) and 138 of the detailed implementing rules.
31 First of all, the applicant takes the view that it is unlawful to exclude it from the tendering procedure solely because its proposal for resolving any conflicts of interest does not provide a satisfactory guarantee.
32 In the applicant’s view, the notion of conflict of interest is not defined either in the call for tenders or in Article 94 of the Financial Regulation. On the other hand, in the decision rejecting the tender, the Commission defined the notion of conflict of interest by reference to the draft framework contract. However, according to that draft, a conflict of interest and, a fortiori, a simple risk of a conflict do not in themselves constitute a ground for exclusion.
33 In addition, none of the tender documents provide for a specific ground for exclusion in respect of a tenderer one or more of whose members have an involvement in current projects in the areas of health and consumer protection. Moreover, neither Article 94 of the Financial Regulation nor the case-law of the Court of Justice justifies such a ground for exclusion.
34 Furthermore, as far as risks of conflicts of interest are concerned, it is sufficient for the tenderer to undertake to notify the Commission and, if appropriate, to take the necessary measures. The proposal made by Euphet in this regard (paragraph 12 above) was adequate, since the applicant went as far as proposing a prior check with reference to the nature and the subject of the specific contracts to be concluded. No more can be expected of Euphet, since the content of the specific contracts to be concluded is not yet known.
35 In the applicant’s view, any conflict of interest can arise only when specific contracts are concluded. Furthermore, Community case-law has confirmed that it is unlawful to exclude a tenderer in an abstract manner without any specific check on the resolution of a conflict of interest (judgments in Joined Cases C-21/03 and C-34/03 Fabricom [2005] ECR I-1559, and in Case T-160/03 AFCon Management Consultants and Others v Commission [2005] ECR II-981, paragraphs 75 to 78).
36 In its observations of 13 June 2005, the applicant adds that the acceptance by the Commission that a tenderer subject to a conflict of interest during the performance of the framework contract may continue to perform the contract provided it takes adequate measures, whilst such an option is not open to a tenderer subject to a conflict of interest prior to the award of the contract, which can take identical measures, constitutes a breach of the principle of equality as set out in Articles 89(1) and 99 of the Financial Regulation.
37 Lastly, in the alternative, the applicant states that the tender notice requires only a minimum of seven experts, whereas its tender contains 65 curricula vitae, including 45 from persons who do not have links with the institutions which, according to the Commission, are subject to a conflict of interest. Furthermore, the 20 people who do have links with those organisations could still be assigned to evaluation cases without any risk of conflicts. As regards the Commission’s claim that the experts in question are those who hold the highest qualifications, even if all these people were subject to a conflict of interest for a certain task, there would be a sufficient number of other high-level experts to carry out the task.
38 Secondly, in the applicant’s view, where the evaluation committee intends to eliminate a tenderer, it must at the very least allow it to submit its observations, which did not occur in the present case.
39 Thirdly, by rejecting a way to resolve conflicts of interest that had already been accepted by other Commission directorates-general, the Commission departed from its earlier practice and breached the principle of protection of legitimate expectations.
40 Fourthly, the decision rejecting the tender does not contain an adequate statement of reasons, in particular in so far as it fails to explain the reasons why Euphet’s proposal is inadequate. The statement of reasons for the decision is also incorrect in so far as Euphet did not remain silent about the specific experience of some of its members and did take account of the resolution of conflicts of interest provided for in the draft framework contract. Because of this failure to state reasons, the decision rejecting the tender infringes Article 147(3) of the detailed implementing rules.
41 Fifthly, the Commission may not award the contract to a third party without infringing Article 138 of the detailed implementing rules when it has wrongly rejected Euphet’s tender. The applicant does not contest the fact that, if its tender had been deemed admissible, the contract would not necessarily have been awarded to it. However, it considers that, in view of the experience and the competence of the team it proposed, Euphet’s tender could only be awarded a high score.
– The second plea
42 In its second plea, the applicant claims that by failing to ask Euphet to submit additional information, the Commission infringed Article 146(3) of the detailed implementing rules, the Court’s case-law on public procurement (judgment in Fabricom, cited in paragraph 35 above) and the principle of protection of legitimate expectations.
43 Furthermore, in so far as the Commission gave other tenderers the opportunity to submit additional information in connection with the contract in question, it acted in contravention of the principles of equal treatment and non-discrimination set out in Articles 89(1) and 99 of the Financial Regulation.
44 The applicant acknowledges that the Commission is not required under Article 94 of the Financial Regulation and Article 146(3) of the detailed implementing rules to request additional information from tenderers. Nevertheless it states that the Commission gave that opportunity to some tenderers in other procedures, and also in the tendering procedure at issue. The applicant asks the Commission to produce the correspondence exchanged on this subject and the minutes of the tendering opening session.
45 It also follows from the judgment in Fabricom, cited in paragraph 35 above, that, in the event of a potential conflict of interest, the contracting authority may not automatically exclude the tenderer in question, but must always examine the matter on the basis of the specific circumstances of the case, which means that the tenderer must be able to show that a conflict of interest is impossible. In the applicant’s view, the Commission could not conduct the required specific assessment without requesting additional information from Euphet. On the one hand, the Commission did not carry out any checks on the basis of the specific circumstances of the case, since such an assessment would have had to have been made for each specific contract. On the other hand, the Commission could not claim either that its specific assessment related to the framework contract since, according to the Commission itself, the applicant’s proposal for a posteriori corrective measures was formulated in very general terms.
Arguments of the Commission
46 The Commission contests the arguments put forward by the applicant in support of the existence of a prima facie case.
– The first plea
47 The Commission considers, first of all, that in accordance with the wording of Section 9.1.3 of the specifications, which reproduces Article 94 of the detailed implementing rules word for word, the existence of a conflict of interest prior to the award of the contract is a ground for exclusion. In the view of the Commission, even though the curricula vitae of several of Euphet’s partners reveal their involvement in the implementation of the programme of Community action in the field of public health, the applicant did not see reason to notify the Commission of a risk of a conflict of interest.
48 As regards the ‘a priori’ corrective mechanism proposed by the applicant to reduce the risk of a conflict of interest, the Commission takes the view that the passage in question in the applicant’s tender is formulated too generally.
49 Moreover, contrary to the applicant’s assertions, the evaluation committee did in fact specifically verify the existence of a conflict of interest with reference to the applicant’s tender and the nature of the contract to be awarded, since a conflict can arise in respect of mid-term and ex post evaluations and in respect of ex ante evaluations.
50 With regard to the applicant’s argument that Euphet’s offer contained 45 curricula vitae of people who have no links with the Commission, the latter points out that the experts put forward do not all have the same specific weight and that the applicant’s tender presented all the partners and experts as a coherent team.
51 Secondly, as regards the Commission’s alleged obligation to consult the applicant, the Commission considers that it must comply with that obligation only where it intends to impose administrative or financial penalties pursuant to Article 96 of the Financial Regulation.
52 Thirdly, with regard to the alleged breach of the principle of protection of legitimate expectations by the Commission, the applicant does not substantiate its claims that in identical circumstances in the past other Commission departments had reached opposite conclusions to those reached in the present case.
53 Fourthly, in the decision rejecting the tender, the Commission clearly explained the reasons why it considered that the applicant was subject to a conflict of interest.
54 Fifthly, the Commission did not infringe Article 138 of the Financial Regulation because acceptance of Euphet’s tender for the selection and award stages did not necessarily mean that it should be awarded the contract.
– The second plea
55 The Commission considers that the second plea should also be rejected.
56 First of all, the Commission points out that it does not have any obligation to consult a tenderer before eliminating it from an award procedure.
57 Secondly, the applicant does not make clear in what way the failure to request additional information constitutes a departure from the Commission’s alleged practice in identical cases. As regards the applicant’s claims that the Commission breached the principle of equal treatment by allowing certain tenderers to submit evidence that their documents had been sent within the prescribed period, the Commission states that in fact it merely conducted a substantive verification of a mandatory deadline, which is not comparable to the applicant’s situation.
58 Thirdly, the applicant’s reference to the judgment in Fabricom, cited in paragraph 35 above, is irrelevant because in the present case the Commission specifically verified whether a conflict of interest existed on the basis of the information in the tender and in the light of the nature of the contract to be awarded.
59 Fourthly, the Commission points out that, after the tenders were opened, none of the tenderers was sent a request for additional information or a request for clarification concerning a supposed conflict of interest.
Urgency
Arguments of the applicant
60 In support of its view that it is a matter of urgency that the interim measures applied for be ordered, the applicant claims that, once the contested contract is concluded between the defendant and the successful tenderer, Euphet will no longer have any opportunity to carry out the task effectively. In practice, it will be impossible for it to obtain the annulment of the framework contract after it has been concluded. In addition, in the applicant’s view, given the final date for the performance of the contract, which is set for the end of 2006, if interim measures are not adopted, the contract will already have been performed, at least to a large extent, when the Court’s judgment is delivered.
61 On account of the considerable value of the contract, the honour and prestige attached to it, and the experience that the applicant could gain if it performed the contract, effective performance of the contract would offer it much more satisfactory reparation than compensation.
62 In its observations of 13 June 2005, the applicant states in this respect that the fact that it was not awarded the contract and, further, that its tender was deemed inadmissible will be seen by its clients as a sign of incompetence. In so far as the Commission claims that award procedures involve risks for tenderers with the result that the loss of a contract cannot therefore be regarded as damage, the applicant considers that such an argument is valid only if a tenderer is rightly eliminated. In the present case, the applicant considers that it had a prospect of being selected.
63 In addition, the harm to the applicant’s reputation and the failure to gain experience as a result of the non-performance of the contract cannot be quantified financially.
64 In its observations of 13 June 2005, the applicant states lastly that its application cannot be regarded as insufficiently urgent merely on the ground that it may subsequently be awarded damages. Such a position is incompatible with the ratio legis of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).
65 In the applicant’s view, the ratio legis of Directive 89/665 is to make it possible for tenderers eliminated from a tendering procedure to perform the contract in question themselves. The applicant’s position is confirmed by the Court’s case-law (judgment in Case C-81/98 Alcatel Austria and Others [1999] ECR I‑7671). The applicant concedes that the provisions of Directive 89/665 apply only to Member States. However, in its view, it is clearly contrary to the principle of protection of legitimate expectations, the principle of equality and Article 2 EC for the Community institutions to fail to comply with the substance of those provisions.
Arguments of the Commission
66 The Commission considers that the applicant has not shown that it is a matter of urgency to order interim measures.
67 First of all, in the Commission’s view, if the Court were to find the action for annulment to be well founded, it would have to take the necessary measures to ensure that the applicant’s interests are protected, which could consist in the cancellation of the already partially performed contract and the launch of a new procedure, whilst such measures may be combined, if necessary, with the payment of compensation (orders of the President of the Court of First Instance in Case T‑169/00 R Esedra v Commission [2000] ECR II‑2951, paragraph 51, in Case T-148/04 R TQ3 Travel Solutions Belgium v Commission [2004] ECR II‑3027, paragraph 55, and in Case T-303/04 R European Dynamics v Commission [2004] ECR II-3889, paragraph 83).
68 The applicant has not referred to any circumstance which could prevent its interests being safeguarded in this way.
69 Secondly, in its observations of 23 June 2005, the Commission refutes the applicant’s arguments according to which a judgment annulling an act can be given only once the contract is being performed. In the view of the Commission, the applicant is confusing the performance of the framework contract with the carrying-out of the specific mid-term assessment provided for in Article 12 of Decision No 1786/2002.
70 Thirdly, in so far as the applicant alleges pecuniary damage, the Commission points out that it cannot be regarded as irreparable or even difficult to repair, because compensation can subsequently be awarded (order in Esedra v Commission, cited in paragraph 67 above, paragraph 43). The applicant does not show either how it might suffer damage liable to jeopardise its existence or to change its position on the market irreversibly.
71 Fourthly, as regards the non-pecuniary damage alleged by the applicant, the Commission points out that participation in a public tender procedure, by nature highly competitive, involves risks for all the participants and the elimination of a tenderer under the tender rules is not in itself in any way prejudicial (order of the President of the Court of Justice in Case 118/83 R CMC v Commission [1983] ECR 2583, paragraph 51; orders in Esedra v Commission, cited in paragraph 67 above, paragraph 48, and in European Dynamics v Commission, cited in paragraph 67 above, paragraph 82). Furthermore, the applicant has not established how the dismissal of its application would harm its reputation and deprive it of experience, less still the effect that such damage would have on it.
72 Fifthly, with regard to the ratio legis of Directive 89/665, the Commission points out that, if its application for interim measures is to be granted, the applicant must show that all the relevant conditions under Article 104(2) of the Rules of Procedure and case-law are satisfied. The Commission adds that it is not subject to Directive 89/665 and that the fourth paragraph of Article 230 EC and Articles 242 EC and 243 EC guarantee effective protection against acts by Community institutions. Lastly, as regards the reference made by the applicant to the judgment in Alcatel Austria and Others, cited in paragraph 65 above, it fails to understand that the application for interim measures may be granted only if it satisfies the relevant conditions.
Balance of interests
Arguments of the applicant
73 In its observations of 13 June 2005, the applicant claims that the Commission does not make clear the nature of the damage that it would suffer if an interim measure were ordered.
74 The applicant adds that Decision No 1786/2002 does not provide for any penalty in the event of late performance of the evaluation provided for in Article 12 thereof. In any case, the Commission could revoke the contested decisions and take the applicant’s tender into consideration, as it is authorised to do under Article 101 of the Financial Regulation. Moreover, the Commission commonly fails to respect the prescribed deadlines for the performance of evaluation contracts like those at issue.
75 Lastly, account should be taken of the Commission’s responsibility for any delay in the performance of the contract.
Arguments of the Commission
76 The Commission considers that the balance of the interests at stake is in favour of the dismissal of the application. The Commission is required under Article 12 of Decision No 1786/2002 to have a mid-term external assessment of the implementation of the programme of Community action in the field of public health conducted by the end of 2006.
77 In addition, the Commission considers that a suspension would prejudice the main action since the successful tenderer’s tender would no longer be valid on the date when the judgment in the main action is delivered and the team proposed by it would no longer be available.
2. Findings of the President
78 Since the written observations of the parties contain all the information necessary to adjudicate on the application for interim measures, it is not necessary to hear oral argument from them.
Admissibility of some heads of claims in the application for interim measures
79 In its application, the applicant claims inter alia that the President should prohibit the Commission from informing the successful tenderer of the award decision.
80 In its observations of 2 June 2005, the Commission stated, without being contradicted by the applicant or by any of the documents in the file, that it had already informed the successful tenderer that its tender had been selected by letter of 22 April 2005.
81 Consequently, the applicant’s request for an order prohibiting the Commission from giving such information was devoid of purpose from the moment it was lodged. It must therefore be rejected as inadmissible (see, to that effect, the order of the President of the Court of First Instance in Case T-125/05 R Umwelt- und Ingenieurtechnik Dresden v Commission [2005] ECR II-1901, paragraph 36).
The other heads of claim in the application for interim measures
82 In the present case, it is necessary first to examine whether the condition relating to the existence of a prima facie case is satisfied.
Prima facie case
– The first plea
83 In its first plea, the applicant claims essentially that Euphet’s exclusion from the tendering procedure by the Commission infringes Article 94 of the Financial Regulation, the provisions of the tender documents, the principle of protection of legitimate expectations, the general obligation to state reasons and Articles 147(3) and 138 of the detailed implementing rules.
84 First of all, it is appropriate to examine the applicant’s arguments according to which the Commission infringed Article 94 of the Financial Regulation and the provisions of the tender documents.
85 In this respect, it should be noted that the Commission justified the decision rejecting the tender by the existence of a ‘major risk’ of a conflict of interest which, in its view, could not be resolved satisfactorily by the guarantees offered by Euphet.
86 As the applicant stresses, Article II.3.1 of the draft framework contract, which was annexed to the specifications, provides for a mechanism for resolving conflicts of interest to which the successful tenderer might be subject. However, on the one hand, it cannot be ruled out, prima facie, that that provision might govern conflicts of interest arising during the performance of the framework contract and not from the stage of the tendering procedure. On the other hand, prima facie, that provision cannot in any event preclude the application of Article 94 of the Financial Regulation.
87 Article 94 of the Financial Regulation provides for the exclusion of tenderers who ‘during the procurement procedure’ are ‘subject to a conflict of interest’. In this regard, the President considers that it cannot be ruled out, prima facie, that the expression ‘subject to a conflict of interest’ includes the risks of conflicts of interest present from the stage of the procurement procedure which may affect the performance of the contract.
88 In such a situation, the question nevertheless arises as to the degree of certainty needed to justify exclusion from the tendering procedure and the discretion enjoyed by the Commission in establishing a risk of a conflict of interest. The President considers that it is for the Court of First Instance to answer these questions and that the applicant’s arguments cannot therefore, at this stage, be rejected as unfounded.
89 Nevertheless, at this stage, and in the light of the arguments put forward in the interlocutory proceedings, doubts must be raised as to whether the Commission committed an error in establishing a risk of a conflict of interest in respect of an institution which receives Community grants in the field of public health and is subsequently required to participate in the evaluation of Community policy in that field. It is clear, prima facie, that such an institution is placed in a position that is at least capable of affecting its objectivity.
90 In the present case, it can be seen from Sections 7.1.3 and 7.1.4 of the tender specifications that the framework contract relates inter alia to certain evaluations of the programme of Community action in the field of public health. In addition, the decision rejecting the tender states that, in the opinion of the Commission, the grants received by certain of Euphet’s members give rise to a major risk of a conflict of interest.
91 In the light of the foregoing, and at this stage, doubts must therefore be raised as to whether the Commission committed an error of assessment in considering that, for certain members of Euphet, receipt of grants in the field of public health gave rise to a major risk of a conflict of interest justifying exclusion from the tendering procedure.
92 Furthermore, in the light of the arguments made in the interlocutory proceedings, it is not apparent that the Commission refrained from conducting a specific examination of the risk of a conflict of interest established vis-à-vis Euphet, in particular because it did not know the precise nature of the specific contracts to be concluded. First of all, the decision rejecting the tender makes reference to the programme of Community action in the field of public health, the evaluation of which is precisely one of the subjects of the framework contract. However, it is not apparent at this stage that the Commission failed to conduct a specific examination of the risk of a conflict of interest identified by it having regard to the subject of the contract. Secondly, because of the grants received by certain members of Euphet, serious doubts could be cast, prima facie, on their objectivity. Consequently, at this stage, doubts must be raised as to the need to know the detailed content of the specific contracts to be concluded in order to establish the existence of a major risk of a conflict of interest.
93 The President nevertheless considers that this question must be examined in detail in the main proceedings.
94 Similarly, there are, prima facie, reasons to doubt whether the applicant may rely effectively on the judgments in Fabricom, cited in paragraph 35 above, and AFCon Management Consultants and Others v Commission, cited in paragraph 35 above.
95 First of all, in Fabricom, cited in paragraph 35 above, the Court held essentially that the Community directives relating to the coordination of procedures for the award of public contracts preclude a rule which states that any person who has been instructed to carry out research, experiments, studies or development in connection with a public contract for works, supplies or services is not permitted to apply to participate in or to submit a tender for a public contract for those works, supplies or services where that person has not been given an opportunity to prove that, in the circumstances of the case, the experience which he has acquired was not capable of distorting competition.
96 However, at this stage, it has not been clearly shown that the applicant has not been able to prove, in connection with its tender, that the grants received by some of the experts which Euphet intends to use were irrelevant.
97 Secondly, with regard to the applicant’s reference to the judgment in AFCon Management Consultants and Others v Commission, cited in paragraph 35 above, it should be noted that, in that judgment, the Court of First Instance held essentially that after the discovery of a conflict of interest between a tenderer and a member of the evaluation committee, the Commission must act with due diligence and on the basis of all the relevant information when adopting its decision on the outcome of the procedure and that the Commission has some discretion to determine the measures which must be taken (paragraphs 75 and 77). In the light of the circumstances of that case, the Court found that the Commission had made an error of assessment in failing to investigate the relations between a tenderer and a member of the evaluation committee.
98 However, at this stage, doubts must be raised as to whether it is possible usefully to compare the facts of the present case with those that gave rise to the judgment in AFCon Management Consultants and Others v Commission, cited in paragraph 35 above. In the present case, unlike the facts which gave rise to that judgment, there is no reason to think, prima facie, that Euphet’s exclusion caused unequal treatment. All the tenderers were, prima facie, in the same position as regards providing proof in their respective tenders that there was no conflict of interest.
99 The President nevertheless considers that this question must be examined in detail in the main proceedings.
100 Lastly, also in the light of the arguments made in the application for interim measures, doubts must be raised as to whether the tender submitted by Euphet allowed any risk of a conflict of interest to be eliminated.
101 First of all, it does not appear at this stage that the Commission manifestly committed an error in considering that the guarantees offered by Euphet were inadequate. As the Commission points out, the proposal for a corrective measure was formulated in general terms and made no specific reference to the risk of a conflict of interest identified by the Commission. Furthermore, in the interlocutory proceedings, the applicant does not cite any passages of its tender where it states that it was aware and took into consideration the specific risk identified by the Commission in the decision rejecting the tender. Quite the opposite, Euphet states in its tender that ‘all the participants in Euphet are entirely independent of the Commission’ and that it does not foresee ‘any risk in this regard at present’.
102 Second, it is true, as the applicant notes, that not all the experts proposed in its tender come from institutions subject to the risk of a conflict of interest identified by the Commission. At this stage, however, it is not apparent that the Commission was required to regard that element as sufficient grounds to rule out any risk of a conflict of interest, in particular in the light of the links and respective roles of the members of Euphet. In this respect, as the Commission points out, it can be seen inter alia from Euphet’s tender that each of its members is represented on a ‘contract committee’ which is responsible for managing and supervising Euphet’s evaluation services.
103 For similar substantive reasons, doubts must also be raised as to whether the Commission must consider that the members of an institution subject to a conflict of interest are not themselves personally subject to that conflict. There is every reason to assume that there is a community of professional interests between an expert and the institution employing him. However, at this stage, the applicant does not provide evidence or arguments to reverse this presumption.
104 Third, doubts must also be raised as to whether the rejection of the applicant’s tender constitutes a breach of the principle of equality as set out in Articles 89(1) and 99 of the Financial Regulation, because a tenderer subject to a conflict of interest during the performance of the framework contract would be allowed to perform the contract provided it takes adequate measures. As has already been observed (paragraphs 100 to 103), it is not apparent, at this stage, that the Commission committed an error in considering that Euphet’s tender was not adequate, from the stage of the tendering procedure, for preventing a risk of a conflict of interest. Prima facie, the applicant cannot therefore claim that it is in a comparable situation to a tenderer subject to a conflict of interest arising only during the performance of the framework contract.
105 Consequently, whilst the applicant’s arguments require several assessments to be made in the main proceedings and cannot therefore be regarded, at this stage, as unfounded, doubts must nevertheless be raised as to whether the Commission infringed Article 94 of the Financial Regulation or the provisions of the tender documents.
106 Second, as regards the alleged obligation on the part of the evaluation committee to consult a tenderer before eliminating its tender, in this plea the applicant does not rely on any legal basis imposing such a duty on the Commission. In so far as the applicant relies implicitly on the principle of the rights of the defence, it should be noted that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views (Case C-32/95 P Commission v Lisrestaland Others [1996] ECR I‑5373, paragraph 21). However, in the present case, the applicant does not, prima facie, put forward any arguments to show that the tendering procedure is initiated against it.
107 Thirdly, as regards the Commission’s alleged breach of the principle of protection of legitimate expectations on account of its rejection of a way of resolving conflicts of interest, it has already accepted, prima facie, that the applicant does not, at this stage, describe an earlier practice that can satisfactorily justify such expectations.
108 Fourthly, doubts must be raised at this stage as to the existence of the failure to state reasons for the decision rejecting the tender claimed by the applicant. According to settled case-law, the scope of the obligation to state reasons must be appropriate to the act at issue and the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution in such a way as to enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded and to enable the competent Community Court to exercise its power of review (Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63; Joined Cases T-228/99 and T-233/99 Westdeutsche Landesbank Girozentrale v Commission [2003] ECR II‑435, paragraph 278; and Case T-109/01 Fleuren Compost v Commission [2004] ECR II-127, paragraph 119).
109 The reason stated for the decision rejecting the tender is the existence of a risk of a conflict of interest connected, first, with the grants received by certain members of Euphet and certain experts which it might use to perform the framework contract and, secondly, the inadequate guarantees provided by Euphet in this regard.
110 As regards the allegedly erroneous nature of the reason stating that Euphet failed to acknowledge the involvement of certain experts in the implementation of the programme of Community action in the field of public health, the applicant does not mention any passage in its tender where it specifically acknowledged, or even merely suggested, that certain experts whom it intended to use received Community grants in that field.
111 Fifthly, as regards the Commission’s alleged infringement of Article 138 of the detailed implementing rules, by that plea the applicant seems to claim essentially that its unlawful exclusion results in the contract being awarded to a tenderer whose tender does not offer the best value for money. However, at this stage, assuming that Euphet’s tender was accepted in the tendering procedure, it appears that it would not necessarily have been selected by the Commission.
– The second plea
112 In its second plea, the applicant claims essentially that by failing to ask Euphet to submit additional information, the Commission infringed Article 146(3) of the detailed implementing rules, the Court’s case-law on public procurement (judgment in Fabricom, cited in paragraph 35 above), the principle of protection of legitimate expectations, the principle of equal treatment and Articles 89(1) and 99 of the Financial Regulation.
113 First of all, at this stage, serious doubts must be raised as to whether the Commission infringed Article 146(3) of the detailed implementing rules. As the applicant itself recognises, that provision simply offers the Commission a discretionary option.
114 Secondly, at this stage, doubts must also be raised as to whether the applicant may rely effectively on the judgment in Fabricom, cited in paragraph 35 above, in order to show that the Commission could not conduct a specific assessment of the potential conflict of interest without requesting additional information from it.
115 First of all, the applicant does not clearly show, at this stage, that the Commission could not conduct a specific examination of the risk of a conflict of interest established vis-à-vis Euphet without knowing the precise nature of the specific contracts to be concluded. As has already been observed in the examination of the first plea (paragraph 92 above), it is not apparent at this stage that the Commission failed to conduct a specific examination of a risk of a conflict of interest having regard to the subject of the framework contract. It is not apparent either, at this stage, that that examination was insufficient to establish the existence of a major risk of a conflict of interest and that it was also necessary to know the precise nature of the specific contracts to be concluded.
116 Second, prima facie, the fact that, in the Commission’s view, the terms of the corrective measure proposed by Euphet were too general does not mean that it could not conduct a specific examination of Euphet’s situation with regard to conflicts of interest. The general nature of the terms of the tender submitted by Euphet is precisely one of the criteria assessed by the Commission in the decision rejecting the tender in order to reach the conclusion that the Euphet’s proposed corrective measure, as set out in its tender, is not adequate for resolving the risk of a conflict of interest identified by the Commission.
117 The President nevertheless considers that this question must be examined in detail in the main proceedings.
118 Third, in so far as the applicant claims a breach of the principle of protection of legitimate expectations, the e-mails annexed to its observations of 13 June 2005 concern only one tendering procedure and do not, at this stage, give proof of the existence of a consistent practice on the part of the Commission whereby it asks tenderers for additional information.
119 Fourth, the applicant does not clearly demonstrate, at this stage, that the Commission’s request for additional information from other tenderers constitutes a breach of the principle of equal treatment or an infringement of Articles 89(1) and 99 of the Financial Regulation.
120 According to the Commission’s observations, those tenderers were invited to prove the date of submission of their respective tenders because the postmarks on the envelopes containing those tenders were illegible. However, doubts must be raised at this stage as to whether the applicant is in a similar position to those tenderers. Unlike the tenderers in those cases, the defects noted by the Commission in Euphet’s tender could not, prima facie, be attributed to circumstances outside its control, but to intrinsic shortcomings in its tender.
121 The President nevertheless considers that this question must be examined in detail in the main proceedings.
122 In the light of the arguments put forward in the interlocutory proceedings, doubts must be raised on several points of the applicant’s arguments. Its arguments must nevertheless be examined in detail in the main proceedings.
123 Without prejudice to the Court’s position in the main proceedings, the applicant’s arguments cannot therefore, at this stage, be rejected as entirely without foundation. The condition relating to a prima facie case is therefore satisfied.
Urgency
124 According to settled case-law, the urgency of an application for interim measures must be assessed on the basis of the need for an interlocutory order in order to prevent serious and irreparable damage being caused to the party requesting the interim measure. That party must prove that it cannot wait for the outcome of the main proceedings without having to suffer damage of this kind (orders in Esedra v Commission, cited in paragraph 67 above, paragraph 43, and in TQ3 Travel Solutions Belgium v Commission, cited in paragraph 67 above, paragraph 41).
125 In the present case, the applicant’s argument consists essentially of two parts where, on the one hand, the applicant’s exclusion from the tendering procedure harms its reputation and, on the other, the absence of interim measures will, if the contested decisions are annulled, prevent it from being awarded and then performing the contract covered by the tendering procedure and, as a result, from deriving certain benefits in terms of prestige, experience and revenue. Those two parts should be considered in turn.
126 First of all, the applicant claims that its exclusion from the tendering procedure harms its reputation. In that regard, the Commission rightly points out that participation in a public tender procedure, by nature highly competitive, involves risks for all the participants and the elimination of a tenderer under the tender rules is not in itself in any way prejudicial (orders in CMC v Commission, cited in paragraph 71 above, paragraph 51, and in European Dynamics v Commission, cited in paragraph 67 above, paragraph 82). Furthermore, the applicant’s argument that this case-law does not apply where the tenderer has been unlawfully eliminated cannot be accepted. The case-law in question concerns cases where, like the applicant in the present case, the applicants were contesting the lawfulness of the act(s) contested in the main proceedings. In addition, where an undertaking has been unlawfully eliminated from a tendering procedure, 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.
127 Second, the applicant claims that, if the contested decisions are annulled and interim measures are not adopted, it will no longer be possible for it to be awarded the contract covered by the tendering procedure and then to perform the contract and, as a result, to derive certain benefits in terms of prestige, experience and revenue.
128 It should be noted in that regard that if the contested decisions were annulled by the Court, it would be for the Commission, under the first paragraph of Article 233 EC, to take the necessary measures to comply with the judgment, without prejudice to the obligations stemming from the application of the second paragraph of Article 288 EC.
129 It should also be noted that, under Article 233 EC, it is the institution whose act has been declared void that is required to take the necessary measures to comply with the Court’s judgment. It follows that the Court hearing annulment proceedings is not competent to indicate to the institution whose act has been declared void the manner in which its ruling is to be complied with (order of the Court of Justice in Joined Cases C-199/94 P and C-200/94 P Pevasa and Inpesca v Commission [1995] ECR I‑3709, paragraph 24) and that the judge hearing the application for interim measures may not prejudice the measures that might be taken following any annulling judgment. The manner in which an annulling judgment is complied with depends not only on the annulled provision and the scope of the judgment, which is to be assessed with reference to its grounds (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraph 184), but also on the specific circumstances of each case, such as the time within which the contested act is annulled or third-party interests.
130 In the present case, if the contested decisions were annulled, the Commission would therefore have to adopt the necessary measures for ensuring appropriate protection of the applicant’s interests, having regard to the specific circumstances of this case (see, to that effect, the orders of the President of the Court of First Instance in Case T‑108/94 R Candiotte v Council [1994] ECR II‑249, paragraph 27, and in Case T‑447/04 R Capgemini Nederland v Commission [2005] ECR II-257, paragraph 96).
131 It is not therefore for the President to prejudice measures which might be taken by the Commission in order to comply with any annulment judgment.
132 Nevertheless, the general principle of the right to full and effective judicial protection requires that interim protection be available to individuals, if it is necessary for the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection afforded by the Community Courts (see, to that effect, the order of the President of the First Chamber of the Court of Justice in Case 27/68 R Renckens v Commission [1969] ECR 274, 276; judgments in Case C-213/89 Factortame and Others [1990] ECR I‑2433, paragraph 21, and in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I‑415, paragraphs 16 to 18; orders of the President of the Court of Justice in Case C-399/95 R Germany v Commission [1996] ECR I‑2441, paragraph 46, and in Austria v Council, cited in paragraph 25 above, paragraph 111).
133 It is therefore necessary to examine whether it is proven, with a sufficient degree of probability, that the applicant is likely to suffer serious and irreparable damage if the interim measures applied for are not adopted (see, to that effect, the order of the President of the Court of Justice in Case C-180/01 P(R) Commission v NALOO [2001] ECR I‑5737, paragraph 53).
134 In the present case, ignoring the issue of the conflict of interest identified by the Commission, which is contested by the applicant and is the subject of the main proceedings, it must be held that Euphet had an opportunity to be awarded the contract covered by the tendering procedure. First of all, it is clear from the documents before the Court that Euphet was excluded from the tendering procedure irrespective of the value for money of its tender and solely because the tender showed that there was a risk of a conflict of interest. Second, nothing in the file suggests that Euphet did not have an opportunity to be awarded and to perform the contract in question, irrespective of the risk of a conflict of interest identified by the Commission.
135 However, because of its exclusion from the tendering procedure, Euphet lost its opportunity to be awarded the contract and, consequently, to derive the various financial and non-financial benefits that might result from the performance of the framework contract. It should therefore be examined whether, following an annulment judgment, the possibility of the Commission organising a new tendering procedure would allow such damage to be repaired and, if that is not the case, it should be assessed whether the applicant could be compensated accordingly.
136 As regards the possibility of the Commission organising a new tendering procedure, it should be stated that, even if Euphet could be restored under competitive conditions comparable to those that applied in the tendering procedure in question, it is highly likely that the subject of the new procedure organised by the Commission will be different from the subject of the first procedure.
137 Under Sections 7.1.3 and 7.1.4 of the specifications, the framework contract relates inter alia to an evaluation of the programme of Community action in the field of public health established by Decision No 1786/2002. Article 12(3) of that decision provides that an external assessment must be conducted ‘by the end of the fourth year of the programme’, that is 31 December 2006.
138 Consequently, even though the Commission rightly stresses that the framework contract does not necessarily concern just that evaluation, it is highly likely that, if interim measures are not adopted, at least some of the services to be provided under the framework contract will have been completed when the Court delivers its decision in the main proceedings.
139 Therefore, even if the Commission decides to or is required to organise a new call for tenders in order to comply with an annulment judgment, if Euphet can be restored under competitive conditions similar to those that applied in the tendering procedure in question, and if Euphet’s tender is accepted by the Commission, it is unlikely that Euphet will in practice still have an opportunity to carry out all the services that it would have performed if it had been declared the successful tenderer at the outset.
140 In the circumstances of this case, it is therefore unlikely that the possibility of the Commission organising a new tendering procedure would in itself make it possible to preserve the opportunity that the applicant had to be awarded and to perform the contract covered by the tendering procedure and, as a result, to derive the various benefits that might have resulted.
141 However, as was held above (paragraph 135), account should also be taken of the possibility that, if the contested decisions are annulled in the main proceedings, the Commission could compensate the applicant for any damage suffered and that, if the Commission chose not to award such compensation, the applicant could bring an action for damages on the basis of Article 288 EC. If any damage suffered by the applicant can subsequently be compensated, it cannot be regarded as irreparable (see, to that effect, the orders in Esedra v Commission, cited in paragraph 67 above, paragraph 44, and in TQ3 Travel Solutions Belgium v Commission, cited in paragraph 67 above, paragraph 43).
142 In the present case, the Commission claims in its observations that, if the contested decisions are annulled, the applicant’s interests could be adequately protected inter alia through the payment of compensation. However, the file does not contain anything to guarantee, with a sufficient degree of certainty, that, if the contested decisions were annulled, the Commission would compensate the applicant without an action for damages being brought.
143 Account must therefore be taken of the possibility of the applicant bringing an action under Article 288 EC.
144 According to settled case-law, the damage for which compensation is sought in an action under Article 288 EC must be real and certain (see, to that effect, Case T-54/96 OleificiItalianiand Fratelli Rubino v Commission [1998] ECR II‑3377, paragraph 66, and Case T-231/97 New Europe Consulting and Brown v Commission [1999] ECR II‑2403, paragraph 29).
145 In the present case, as has already been held (paragraph 134 above), it must be regarded as established that Euphet had an opportunity to be awarded and to perform the contract covered by the tendering procedure. Therefore, the damage suffered by the applicant, consisting in the loss of that opportunity, must, at this stage and in the light of the evidence and arguments submitted in the interlocutory proceedings, be regarded as real and certain within the meaning of the case-law mentioned in the preceding paragraph.
146 However, it must be stated that that opportunity is very difficult to quantify. On the one hand, Euphet’s tender was excluded at a very early stage in the procedure and the evaluation committee did not deliver an opinion regarding its economic value. On the other hand, even if that tender had been evaluated by the evaluation committee, the contracting authority would not be bound by its proposal and would have a broad discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract (see, to that effect, Case T-13/96 TEAM v Commission [1998] ECR II‑4073, paragraph 76, and AFCon Management Consultants and Others v Commission, cited in paragraph 35 above, paragraph 113).
147 It is therefore very difficult, or even impossible, to quantify that opportunity and therefore to evaluate the damage resulting from its loss. According to settled case-law, damage, which once it has been suffered cannot be quantified, may be regarded as irreparable (see, to that effect, the order of the President of the Court of Justice in Joined Cases C‑51/90 R and C‑59/90 R Comos Tank and Others v Commission [1990] ECR I‑2167, paragraph 31; orders of the President of the Court of First Instance in Case T‑41/97 R Antillean Rice Mills v Council [1997] ECR II‑447, paragraph 47, and in Case T-65/98 R Van den Bergh Foods v Commission [1998] ECR II‑2641, paragraph 65).
148 The loss of that opportunity may therefore be regarded as constituting irreparable damage.
149 However, in order to justify the grant of interim measures, the damage claimed by the applicant must be serious (see, to that effect, the orders in Esedra v Commission, cited in paragraph 67 above, paragraph 43, and in TQ3 Travel Solutions Belgium v Commission, cited in paragraph 67 above, paragraph 41).
150 The loss of an opportunity to be awarded and to perform a public contract forms an integral part of exclusion from the tendering procedure in question and cannot be regarded as constituting in itself serious damage, whether or not a specific assessment is made of the seriousness and irreparability of the precise prejudice alleged in each case considered (see, by analogy, the order of the President of the Court of First Instance in Case T-237/99 R BP Nederland and Others v Commission [2000] ECR II‑3849, paragraph 52).
151 Therefore, in the present case, the applicant’s loss of an opportunity to be awarded and to perform the contract in the tendering procedure would constitute serious damage if it has shown satisfactorily that it would have been able to derive sufficiently sizeable benefits from the award and performance of that contract.
152 It is therefore necessary to make a specific assessment of the various benefits that, according to the applicant, it would derive from the award and performance of the contract covered by the tendering procedure.
153 First of all, the applicant claims that the performance of the framework contract would have brought it major benefits in terms of experience and prestige. However, in this respect, its claims are too general, too vague and too unsubstantiated to establish satisfactorily the likelihood and, a fortiori, the significance of those benefits. As regards the honour and prestige attached to the performance of the tasks to be carried out, the applicant pleads the value of the framework contract, ‘the subject, the duration, the international and large-scale nature of the task’ and the fact that it assembled a team of 65 people to perform the contract. Nevertheless, in the absence of more specific evidence allowing an assessment of the effects of performance of the framework contract, in particular on its customers, its prestige and its experience, these claims alone are too vague to prove satisfactorily the likelihood and, a fortiori, the significance of those benefits.
154 Second, as regards the financial benefits attached to the performance of the framework contract, their existence is clearly established. It is obvious therefore that non-performance of the contract would deprive the applicant of revenue that it would have received if it had been awarded the contract. The applicant is therefore liable to suffer irreparable damage linked to the loss of an opportunity to receive that revenue.
155 With regard to the seriousness of that loss, it should be noted that, having regard to its subject-matter, the framework contract concerns tasks with a considerable value. It can be seen from the specifications that the successful tenderer will be assigned three to five tasks each year and that, for the first year, the value of the remunerable services is EUR 1 million.
156 However, where the applicant is an undertaking, the seriousness of material damage must be assessed inter alia in the light of the size of that undertaking (see, to that effect, the order in Comos Tank and Others v Commission, cited in paragraph 147 above, paragraphs 26 and 31, and the order of the President of the Court of First Instance in Case T-201/04 R Microsoft v Commission [2004] ECR II-4463, paragraph 257).
157 In the present case, it must be stated that the applicant does not produce evidence or arguments to show that, in the light of its size in particular, the loss that it is liable to suffer would be sufficiently serious to justify the grant of interim measures.
158 For example, it can be seen from an annex to the tender submitted by Euphet that the applicant realised a turnover of more than EUR 27 million in 2004. Furthermore, the information provided in Euphet’s tender seeks to highlight the size of the group to which the applicant is linked. In that tender, it is stated that the group in question employs the services of almost 130 000 people throughout the world, approximately 20 000 of whom work within the European Union.
159 Consequently, in the light of the evidence and arguments contained in the application for interim measures, the President cannot take the view that the applicant’s loss of an opportunity to receive revenue from the performance of the framework contract would be sufficiently serious to justify the grant of interim measures.
160 The condition relating to urgency cannot therefore be regarded as satisfied.
161 Lastly, it should be noted that the balance of interests is in any case in favour of not ordering interim measures.
162 As has already been noted, if interim measures are not adopted, the applicant is liable to suffer damage linked to the loss of an opportunity to receive revenue from the performance of the framework contract.
163 However, if the interim measures applied for were ordered, the Commission would be unable to conclude the framework contract. It is clear from recital 44 in the preamble to Decision No 1786/2002 that the evaluations of the programme of Community action in the field of public health are intended, where appropriate, to adjust or modify that programme. The performance of these evaluations therefore fulfils an important general interest.
164 Account must also be taken of the interest of the tenderer which was successful at the end of the tendering procedure and which, in the event of suspension, would be unable to perform the contract which it has been awarded.
165 Lastly, as can be seen from the examination of the prima facie case (paragraphs 83 to 123 above), it is not particularly strong, in the light of the evidence and arguments presented in the interlocutory proceedings, and is not capable of tipping the balance of interests in favour of the grant of interim measures.
166 Therefore, in the light of the foregoing, the balance of the interests at stake is in favour of not granting the interim measures applied for.
167 Consequently, without it being necessary to give a ruling on the applicant’s request for the correspondence exchanged between the Commission and the other tenderers to be lodged with the Registry, the application for interim measures must be dismissed.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 20 September 2005.