ORDER OF THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES
5 February 2010 (*)
(Interim measures – Public procurement – Community tendering procedure – Application for suspension of operation and for interim measures – No urgency)
In Case T‑514/09 R,
De Post NV van publiek recht, whose registered office is in Brussels (Belgium), represented by R. Martens and B. Schutyser, lawyers,
applicant,
v
European Commission, represented by E. Manhaeve and N. Bambara, acting as Agents, and P. Wytinck, lawyer,
defendant,
APPLICATION for interim measures seeking, in essence, first, an order suspending the operation of the decision by which the Publications Office of the European Union awarded the contract referred to in Invitation to Tender No 10234 ‘Daily transport and delivery of the Official Journal, books, other periodicals and publications’ to Entreprise des postes et télécommunications Luxembourg, second, an order prohibiting the signature of the contract referred to in the Invitation to Tender and, third, if the contract has already been signed, that its performance be suspended until the Court has ruled on the substance of the action,
THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES,
replacing the President of the Court in accordance with Article 106 of the Rules of Procedure of the Court,
makes the following
Order
Facts and procedure
1 The applicant, De Post NV van publiek recht, is a company established in Belgium, which is active in the national and international postal services sector. That company has been responsible, since 15 June 2006, for the daily transport and delivery of the Official Journal of the European Union, books, catalogues, other journals and periodicals on behalf of the Publications Office of the European Union (‘the Publications Office’).
2 By contract notice published in the Supplement to the Official Journal of the European Union of 1 September 2009 (OJ 2009 S 176), the Publications Office initiated call for tenders No 10234 for the daily transport and delivery of the Official Journal of the European Union, books, other periodicals and publications (‘the call for tenders’). On 19 October 2009, the applicant submitted a tender in the framework of that procedure.
3 By letter of 17 December 2009, the Publications Office informed the applicant that it had not been awarded the contract because its tender had not obtained the best final score in the qualitative and financial evaluation of the tenders. In the same letter, the Publications Office informed the applicant that it was entitled to obtain supplementary information as to the grounds for the rejection of its tender and information on the characteristics and the relative advantages of the tender submitted by Entreprise des postes et télécommunications Luxembourg (‘P&T Luxembourg’), which was ultimately successful.
4 By letter of 23 December 2009, the applicant exercised that right and requested information as to the grounds for the rejection of its tender and the characteristics and relative advantages of the successful tender.
5 By letter of the same date, the Publications Office sent the applicant an extract of the evaluation report concerning the qualitative evaluation of its tender and that of P&T Luxembourg.
6 By application lodged at the Registry of the Court on 31 December 2009, the applicant brought an action under Articles 263 TFEU and 340 TFEU seeking inter alia the annulment of the decision adopted in the framework of the call for tenders, by which the contract was awarded to P&T Luxembourg (‘the contested decision’).
7 That action was brought against the European Commission, in accordance with Article 13 of Decision 2009/496/EC, Euratom of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions of 26 June 2009 on the organisation and operation of the Publications Office (OJ 2009 L 168, p. 41).
8 By separate document lodged at the Registry of the Court on the same day, the applicant brought this application for interim measures against the Commission on the basis of Article 104 of the Rules of Procedure of the Court, together with an application for interim measures on the basis of Article 105(2) thereof.
9 By order of 12 January 2010, the judge hearing the application for interim measures ordered, on the basis of Article 105(2) of the Rules of Procedure, that the contract at issue in the call for tenders should not be signed and, if the contract had already been signed, that its performance should be suspended until an order was made on the application for interim relief.
10 By separate document lodged at the Registry on 18 January 2010, the Commission lodged its observations on the application for interim measures.
Forms of order sought
11 The applicant claims that the judge hearing the application for interim measures should, on the basis of Article 104 of the Rules of Procedure:
– order the suspension of operation of the contested decision until the Court has ruled on the substance;
– order the Publications Office not to sign the contract at issue in the call for tenders or, if the contract has already been signed, order its operation to be suspended until the Court has ruled on the substance.
12 The Commission contends that the judge hearing the application for interim measures should declare the application for interim measures unfounded and order the applicant to pay the costs.
Law
13 Article 104(2) of the Rules of Procedure provides that applications for interim measures are 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. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the President of the Court in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
14 Moreover, in the context of that examination, the judge hearing the application enjoys a broad discretion and is free to determine, in the light of the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a pre‑established scheme of analysis within which the need to order interim measures must be assessed (order of the President of the Court in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23).
15 In view of the circumstances of the present case, it is appropriate to begin by examining whether the urgency condition is fulfilled.
Urgency
Arguments of the parties
16 The applicant is of the view that the award of the contract at issue to P&T Luxembourg and the performance of the contract resulting therefrom will cause it serious and irreparable harm, giving rise to urgency within the meaning of Article 104(2) of the Rules of Procedure.
17 More specifically, the applicant claims that, in addition to the loss of revenue in the order of EUR 23 million over 4 years, the contested decision will give rise to problems associated with its operational capability, not to mention that it will be almost impossible for the applicant to regain the market share thus lost.
18 In that context, the applicant, the sole Belgian postal operator, states that the loss of the contract at issue will have the consequence that the net volume of (first class) mail sent annually from Belgium, that is, 7 014 504 kilos, will be reduced by 934 928 kilos. In those circumstances and having regard to the gross volume of ‘imported’ mail (6 321 559 kilos), the applicant claims that, annually, Belgium will ‘import’ more mail than it ‘exports’.
19 This will result in a significant reduction in the negotiating power of the applicant in its dealings with its partners abroad. According to the applicant, it is the operators of countries with a positive balance of ‘exports’ which fix the prices of international postal services, and the operators of countries which are ‘net importers’ have to accept the conditions imposed by them. In addition, the applicant’s competitiveness will deteriorate significantly in the coming years, especially on an international level, meaning that it will not be able to offer competitive prices in the framework of other tendering procedures.
20 That deterioration in the applicant’s competitiveness will be aggravated by the liberalisation of postal services in Belgium from 1 January 2011 pursuant to Article 2(1) of Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ 2008 L 52, p. 3).
21 If the applicant were not awarded international contracts before the date of the liberalisation of postal services, it would have to devote all its resources to competing with new entrants to the markets in national and international services, which would harm its international growth and would make it, in time, a second‑tier postal operator.
22 Moreover, it would be impossible to recover from that loss of competitiveness before 1 January 2011, since the contract at issue represents 13% of mail sent from Belgium.
23 The applicant adds that it will be impossible to make good the loss suffered, even if its action for annulment and damages is successful, since the judgment on the action will not have the effect of re-establishing the market share definitively lost. The harm suffered will be exacerbated by the fact that the tender of the applicant, the holder of the contract since 2006, was rejected, according to the contested decision, because of its allegedly insufficient technical quality. That will adversely affect the applicant’s prospects of being awarded other contracts and will consequently occasion it irreparable non‑material damage.
24 The Commission contests those arguments.
Findings of the judge hearing the application for interim measures
25 The urgency of an application for interim measures must be assessed in relation to the necessity for an interim order in order to prevent serious and irreparable damage to the party applying for those measures. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering damage of that kind (see order of the President of the Court of 23 January 2009 in Case T‑511/08 R Unity OSG FZE v Council and EUPOL Afghanistan, not published in the ECR, paragraph 22 and the case‑law cited).
26 Where damage depends on the occurrence of a number of factors, it is enough for that damage to be foreseeable with a sufficient degree of probability. However, the applicant is still required to prove the facts which are deemed to show the probability of serious and irreparable damage (see Unity OSG FZE v Council and EUPOL Afghanistan, paragraph 23 and the case‑law cited).
27 With regard to the seriousness of the damage pleaded in this case, it must be pointed out that the damage is said to have been suffered on the occasion of a tendering procedure for the award of a contract. However, the purpose of such a procedure is to enable the authority concerned to choose from a number of competing tenders the one which appears to the authority to comply best with the predetermined selection criteria. An undertaking which takes part in such a procedure never, therefore, has an absolute guarantee that it will be awarded the contract and must always take into account the possibility that the contract will be awarded to another tenderer. In those circumstances, the adverse financial consequences which the undertaking concerned would suffer as a result of the rejection of its tender have, generally, to be considered to be part of the normal commercial risk which each undertaking active on the market must face (see order in Unity OSG FZE v Council and EUPOL Afghanistan, paragraphs 25 and 26 and the case‑law cited).
28 Therefore, the applicant undertaking’s loss of an opportunity to be awarded and to perform the contract in the tendering procedure would constitute serious damage if the applicant had shown to the requisite legal standard that it would have been able to derive sufficiently sizeable benefits from the award and performance of that contract. Moreover, the seriousness of material damage must be assessed in the light, in particular, of the size of the applicant undertaking (order in Unity OSG FZE v Council and EUPOL Afghanistan, paragraph 28) and of any group to which it belongs (see, to that effect, order of the President of the Court of 7 February 2006 in Case T‑437/05 R Brink’s Security Luxembourg v Commission, not published in the ECR, paragraph 57).
29 In the present case, the applicant claims, first, that the contested decision will result in a loss of revenue in the order of EUR 23 million over the coming 4 years. However, it follows from the consolidated financial statements of the applicant’s group of undertakings, and in particular from the consolidated income statement, that in 2008 the group had a turnover of approximately EUR 2.26 billion. It follows that the contract at issue represents approximately 1% of the turnover of the applicant’s group of undertakings in 2008, which is insufficient to justify describing the financial harm allegedly suffered by the applicant as serious.
30 The applicant states, second, that the loss of the contract at issue will turn the country of which it is the incumbent postal services operator into a ‘net importer’, in other words, a country ‘importing’ more mail than it ‘exports’. In that regard, it is clear that the applicant erred in comparing the net figure of 7 014 504 kilos of ‘exported’ mail with the gross figure of 6 321 559 kilos of ‘imported’ mail rather than with the net figure of 5 813 304 kilos of ‘imported’ mail. In fact, if, as the applicant claims, the failure to award it the contract at issue will result in a reduction in ‘exported’ mail of 934 928 kilos net, the net volume of ‘exported’ mail will remain higher than the ‘imported’ mail by 266 272 kilos.
31 In any event, inasmuch as the applicant claims that the adverse effect on its competitive position will be reflected at the level of price negotiations with its partners abroad, the analysis of that position following the loss of the contract at issue will clearly have to be carried out country by country, a table setting out total figures, such as that submitted by the applicant, being insufficient for that purpose. As to a country‑by‑country comparison, the applicant has submitted only a table concerning mail flow between Belgium and Austria. According to that table, the applicant would be required to pay EUR 24 961 to the Austrian postal service as terminal dues if, following the loss of the contract at issue, Belgium became a ‘net importer’ in its relations with Austria. According to the explanatory note annexed to that table, similar effects are to be expected for all of Belgium’s ‘partner’ countries.
32 In that regard, it should be pointed out that, assuming that the calculations it contains are correct, that table concerns only one country. Moreover, the assertion that similar effects will apply in all of the applicant’s commercial relationships is contradicted by the calculation in paragraph 30 above. If, as that calculation demonstrates, Belgium does not become an overall ‘net importer’ of mail following the loss of the contract at issue, there is nothing in the case‑file to suggest that effects similar to those described in paragraph 31 above will occur in all bilateral relations between the applicant and its partners abroad.
33 It follows that the applicant’s argument concerning the consequences of Belgium becoming a ‘net importer’ country of mail cannot be upheld. In those circumstances, the argument alleging the exacerbation of those consequences because of the liberalisation of the market in postal services must also be rejected.
34 As to the argument alleging non‑material damage to the applicant as a result of the fact that its tender was rejected on grounds of technical inadequacy, it is clear that such damage is, by definition, capable of being made good if the Court finds that the elimination of the applicant was unlawful (see, to that effect, order of the President of the Court in Case T‑195/05 R Deloitte Business Advisory v Commission [2005] ECR II‑3485, paragraph 126).
35 If follows from the foregoing that the condition of urgency is not fulfilled, with the result that the application for interim measures must be dismissed, without it being necessary to examine whether the other conditions for granting the suspension of operation sought are fulfilled.
36 As regards the Commission’s request that the applicant should be ordered to pay the costs of the present proceedings, it should be pointed out that, in accordance with Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. Since it is the decision in the applicant’s main action which corresponds to such a judgment or order, the costs relating to the proceedings giving rise to the present order must be reserved.
On those grounds,
THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 5 February 2010.
Registrar | | Judge hearing the application for interim measures |