ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
23 January 2009 (*)
(Application for interim measures – Public procurement – Rejection of a tender – Application for suspension of operation of a measure – Loss of opportunity – No urgency)
In Case T‑511/08 R,
Unity OSG FZE, established at Sharjah (United Arab Emirates), represented by C. Bryant and J. McEwen, Solicitors,
applicant,
v
Council of the European Union, represented by G. Marhic and A. Vitro, acting as Agents,
European Union Police Mission in Afghanistan (EUPOL Afghanistan), established in Kabul (Afghanistan),
defendants,
APPLICATION for suspension of operation of the decision taken by EUPOL Afghanistan in the course of a tendering procedure to reject the applicant’s tender and to award to another tenderer the contract for the provision of guarding and close protection services in Afghanistan,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Background to the dispute, procedure and forms of order sought by the parties
1 In December 2007, the European Union Police Mission in Afghanistan (EUPOL Afghanistan), established pursuant to Council Joint Action 2007/369/CFSP of 30 May 2007 (OJ 2007 L 139, p. 33), had entered into a contract with the applicant, Unity OSG FZE, for the provision of security services. That contract was valid until 30 November 2008.
2 At the end of September 2008, EUPOL Afghanistan published a service procurement notice relating to the provision of guarding and close protection services in Afghanistan, which was intended to replace the then contract as from 1 December 2008 for an initial duration of 12 months, with the possibility of an extension. The purpose of the contract was, essentially, to ensure the full and continued protection of all EUPOL Afghanistan staff in the city of Kabul and other areas of Afghanistan, and the security services required included guarding, close protection and residential security. It was estimated that fulfilment of the obligations under the contract would require approximately 67 positions of diverse categories, involving some 118 persons.
3 Having submitted a request to participate in the tendering procedure and received an invitation to tender, the applicant submitted its tender on 12 November 2008, that is, within the period prescribed in that regard.
4 On 23 November 2008, the applicant received a letter from EUPOL Afghanistan informing it that its tender had been rejected and that the contract had been awarded to ArmorGroup (‘the contested decision’). By letter of 24 November 2008, the applicant protested to EUPOL Afghanistan against its elimination from the procedure and indicated that it intended to challenge the award of the contract.
5 The applicant took the view that there had been unlawful contact between EUPOL Afghanistan and ArmorGroup during the procurement procedure in question, and brought an action for annulment of the contested decision by application lodged at the Registry of the Court of First Instance on 27 November 2008.
6 By a separate document lodged at the Court Registry on the same date, the applicant brought the present application for interim measures in which it claims, in essence, that the President of the Court should:
– suspend the operation of the contested decision, pursuant to Article 105(2) of the Rules of Procedure of the Court of First Instance, pending the adoption of a final order in the present proceedings for interim measures and, in any event, until the Court has ruled on the main action;
– order any such other forms of interim relief considered appropriate;
– order the Council and EUPOL Afghanistan to pay the costs.
7 In its written observations on the application for interim measures, lodged at the Court Registry on 5 December 2008, the Council contends that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
8 EUPOL Afghanistan did not lodge any pleading.
9 On 1 December 2008, the President of the Court put questions to the parties in writing. The applicant and the Council replied to those questions within the prescribed period.
Law
10 Under Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, the judge hearing an application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the Court of First Instance be suspended or prescribe any necessary interim measures.
11 Article 104(2) of the Rules of Procedure provides that an application 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. Thus, suspension of the operation of an act or interim measures may be ordered if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as it must, in order to avoid serious and irreparable harm to the applicant’s interests, be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if 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).
12 In addition, in the context of that overall examination, the judge hearing the application enjoys a broad discretion and is free to determine, having regard to 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 preestablished scheme of analysis within which the need to order interim measures must be assessed (orders 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, and of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
13 Finally, it is important to note that Article 242 EC lays down the principle that actions do not have suspensory effect (orders of the President of the Court in Case C‑377/98 R Netherlands v Parliament and Council [2000] ECR I‑6229, paragraph 44, and Case T‑191/98 R II Cho Yang Shipping v Commission [2000] ECR II‑2551, paragraph 42). It is only in exceptional cases, therefore, that the judge hearing an application for interim measures may order that application of an act contested before the Court be suspended or prescribe interim measures.
14 Having regard to the documents in the case, the President considers that he has all the information needed in order to rule on the present application for interim measures and that it is not necessary first to hear oral argument from the parties.
15 In the circumstances of the present case, it is necessary to consider, first, whether the condition of urgency is satisfied.
Arguments of the parties
16 The applicant submits that, if its application for interim measures is dismissed, it will suffer serious and irreparable damage as a result of the implementation of the contract at issue, which was due to commence on 1 December 2008. In view of various factors relating to the nature of the contract and the applicant’s position as incumbent contractor, it will be affected in a manner that distinguishes it from other unsuccessful tenderers and will suffer harm for which it cannot adequately be compensated by the award of pecuniary damages, since the harm will be much more than merely financial.
17 The nature of the former contract and the new contract is, according to the applicant, such that the handover between contractors will entail a significant upheaval for the applicant. It will be obliged to move equipment and personnel out of Afghanistan and redeploy them elsewhere or to sell its equipment and dismiss its staff. Accordingly, personnel who were due to arrive in Afghanistan on 4 December 2008 could not travel there and the applicant will be obliged to redeploy them elsewhere or to terminate their contracts of employment, which will involve significant upheaval, given the scale and nature of the contracts concerned.
18 Furthermore, the applicant’s ability to perform the contract will be irremediably prejudiced, even if it secures the annulment of the contested decision. The applicant’s tender was submitted on the basis of the local experience of its personnel, its situation in Kabul and its equipment. If the contract between EUPOL Afghanistan and ArmorGroup is implemented as planned, the applicant will be obliged to minimise the resulting financial impact by selling its equipment, releasing its employees or redeploying them elsewhere. Having done so, the applicant will, in the event of a new tendering procedure, not be in a position to submit a tender of equivalent strength to that which it had submitted. Moreover, the applicant will no longer have its premises in Kabul available as a base from which to operate and its position will therefore be disadvantaged.
19 The applicant further submits that its ability to retain its security licence in Afghanistan will be irremediably prejudiced. The retention of that licence effectively depends on the applicant’s participation in contracts such as that at issue in the present case. Moreover, if it loses its security licence, the applicant’s capacity to carry out other work in Afghanistan will be affected as a result.
20 Finally, the loss of the contract at issue will cause serious damage to the reputation of the applicant as the incumbent contractor. That is particularly apparent when combined with the possible loss of the applicant’s security licence. Those effects cannot be adequately quantified or compensated by the award of damages at a later stage.
21 The Council contends that the claims put forward by the applicant do not meet the required standard of proof that it will suffer serious and irreparable damage before a decision is reached in the main action. Consequently, the condition relating to the urgency of the interim measures applied for is not satisfied.
Findings of the President
22 It must be noted that 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 wait for the outcome of the main proceedings without suffering damage of that kind (see orders of the President of the Court in Case T‑151/01 R Duales System Deutschland v Commission [2001] ECR II‑3295, paragraph 187; Case T‑195/05 R Deloitte Business Advisory v Commission [2005] ECR II‑3485, paragraph 124; and of 25 April 2008 in Case T‑41/08 R Vakakis v Commission, not published in the ECR, paragraph 52 and case-law cited).
23 Where harm depends on the occurrence of a number of factors, it is enough for that harm to be foreseeable with a sufficient degree of probability (orders of the President of the Court of Justice in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67, and of the Court of First Instance in Case T‑369/03 R Arizona Chemical and Others v Commission [2004] ECR II‑205, paragraph 71; see also, to that effect, order in Case C‑280/93 R Germany v Council [1993] ECR I‑3667, paragraphs 32 to 34). However, the applicant is still required to prove the facts which are deemed to attest to the probability of serious and irreparable damage (orders in Arizona Chemical and Others v Commission, paragraph 72, and HFB and Others v Commission, paragraph 67).
24 It is therefore necessary to consider whether, in the present case, the applicant has established with a sufficient degree of probability that it will suffer serious and irreparable damage if the interim measures it seeks are not granted.
25 As regards the seriousness of the damage pleaded in the present case, it must be noted that this 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 select from a number of competing tenders that which appears to the authority to comply best with predetermined selection criteria. Moreover, the Community body which initiates such a procedure has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award the contract (Case T‑145/98 ADT Projekt v Commission [2000] ECR II‑387, paragraph 147; Case T‑169/00 Esedra v Commission [2002] ECR II‑609, paragraph 95; and Joined Cases T‑376/05 and T‑383/05 TEA-CEGOS and Others v Commission [2006] ECR II‑205, paragraph 50).
26 Therefore, a company taking part in a tendering procedure never has an absolute guarantee that it will be awarded the contract, but must always keep in mind the possibility that the contract could be awarded to another tenderer. Under those circumstances, the adverse financial consequences which the company in question 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 company active in the market must face (order of the Judge hearing the application for interim measures of 14 September 2007 in Case T‑211/07 R AWWW v Eurofound, not published in the ECR, paragraph 41).
27 It follows that 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 of the precise prejudice alleged in each case considered (see, to that effect, order in Deloitte Business Advisory v Commission, paragraph 150).
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 it 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. Furthermore, the seriousness of material damage must be assessed inter alia in the light of the size of the applicant undertaking (see, to that effect, order in Deloitte Business Advisory v Commission, paragraphs 151 and 156 and case-law cited).
29 In the present case, it must be held that the applicant has not produced any evidence at all to permit the inference, particularly in the light of its size, that the loss which it may suffer would be sufficiently serious to justify interim measures being ordered. In particular, it has not described the global, regional or local nature of its business of providing security services, indicating whether it was part of a group of undertakings which operate in a number of geographical markets or whether, on the contrary, the bulk of its turnover was achieved through EUPOL Afghanistan. However, as regards essential elements of fact and law establishing urgency, such information, substantiated by numerical data, should have been included in the application for interim measures (see, to that effect, orders of the President of the Court in Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 34; Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 52; and Case T‑85/05 R Dimos Ano Liosion and Others v Commission [2005] ECR II‑1721, paragraph 37).
30 Therefore, in the absence of relevant evidence in the application for interim measures, the President is not in a position to determine whether, for the applicant, the loss of an opportunity to obtain the income arising from the performance of the contract in question would be sufficiently serious to justify ordering interim measures.
31 It should be added that the pecuniary damage claimed by the applicant cannot be regarded as being irreparable, or even reparable only with difficulty, since it may be the subject of subsequent financial compensation. The applicant has, in particular, failed to show that it would be unable to obtain such compensation by means of an action for damages under Article 288 EC (see, to that effect, order of the President of the Court in Case T‑303/04 R European Dynamics v Commission [2004] ECR II‑3889, paragraph 72 and case-law cited).
32 It is true that the applicant maintains that its damage cannot be adequately compensated by the award of pecuniary damages. However, the applicant submitted a tender for the contract at issue. It would be possible, therefore, in any future damages action, to compare that tender with the tender accepted by EUPOL Afghanistan (see, to that effect, order of the President of the Court of 15 July 2008 in Case T‑202/08 R CLL Centres de langues v Commission, not published in the ECR, paragraph 79).
33 In that context, it is apparent from the recent case-law of the Court of Justice that, where the Court of First Instance awards damages on the basis of the economic value attributed to the damage suffered as a result of a loss of income, that reparation is, generally, capable of complying with the requirement to ensure that the individual damage actually suffered by the party concerned because of the particular unlawful acts of which it was the victim is fully compensated (see, to that effect, Case C‑348/06 P Commission v Girardot [2008] ECR I‑833, paragraph 76).
34 It follows from this that, should the applicant be successful in the main action, an economic value can be attributed to the damage suffered as a result of the loss of the opportunity to win the disputed tender procedure, which is capable of complying with the requirement that the individual damage actually suffered be fully compensated (see, to that effect, order in Vakakis v Commission, paragraph 67).
35 In the light of the foregoing, the interim measures sought could be justified in the circumstances of the present case only if it were apparent that in the absence of such measures the applicant would be in a situation which could endanger its very existence or irretrievably alter its position in the market (see, to that effect, order in European Dynamics v Commission, paragraph 73).
36 The applicant has not, however, adduced proof that, in the absence of the interim measures sought, it would be liable to be placed in such a situation.
37 The applicant has failed to provide data concerning its size and financial situation (see paragraph 29 above). Moreover, although the applicant submits that, if it did not obtain the contract at issue, it would suffer serious upheaval owing to the fact that it would have to move equipment out of Afghanistan, redeploy or dismiss its staff and give up its premises in Kabul, these are mere assertions which are not substantiated by any evidence that could lead the President to conclude that the applicant’s existence will be endangered until the Court rules on the main action.
38 Furthermore, as regards in particular the argument that the applicant would be obliged to dismiss some of its employees, it is settled case-law that, in order to establish that the condition of urgency is met, an applicant is required to show that the suspension of operation sought is necessary in order to protect his own interests. However, in order to establish urgency, an applicant cannot plead damage to an interest which is not personal to him, such as for example to the rights of third parties (see order of the President of the Court in Case T‑316/04 R Wam v Commission [2004] ECR II‑3917, paragraph 28 and case-law cited). Therefore, the damage suffered by the applicant’s employees cannot properly be invoked in order to substantiate the urgency of the suspension of operation sought. It is not damage to interests which are personal to the applicant (see, to that effect, orders of the President of the Court of 2 August 2006 in Case T‑69/06 R Aughinish Alumina v Commission, not published in the ECR, paragraph 81, and in Case T‑31/07 R Du Pont de Nemours (France) and Others v Commission [2007] ECR II‑2767, paragraphs 147 and 168).
39 In so far as the applicant pleads damage to its reputation, suffice it to note that participation in a public tendering 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. 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 (see order in Deloitte Business Advisory v Commission, paragraph 126 and case-law cited).
40 The applicant also maintains that the damage it will suffer is not confined to financial damage. In that regard, it complains of the risk of losing its security licence in Afghanistan and its capacity to carry out other work in that country if it were to lose the contract at issue. Nevertheless, again, these are mere assertions which are not substantiated by any evidence capable of being reviewed by the President. In particular, the applicant has failed to adduce evidence to show that the loss alone of the contract at issue would prevent it from being able to provide other security services on the same scale in the future or from participating in any tendering procedures launched by EUPOL Afghanistan in that sphere.
41 In any event, the applicant states that, without interim measures, any remedy granted to it after 30 November 2008 (date of the end of its contract with EUPOL Afghanistan) will have little practical effect and that its position will be irrevocably altered from 1 December 2008 (commencement date of the contract between EUPOL Afghanistan and ArmorGroup). Thus the applicant itself claims that, after those dates, the damage will have been caused and consequently cannot be ‘prevented’, as referred to in the case-law cited in paragraph 22 above, by the adoption of the interim measure sought. However, the purpose of proceedings for interim relief is not to ensure reparation for damage (orders of the President of the Court in Case T‑47/03 R Sison v Council [2003] ECR II‑2047, paragraph 41, and of 27 August 2008 in Case T‑246/08 R Melli Bank v Council, not published in the ECR, paragraph 53).
42 Having regard to the foregoing, it must be concluded that the applicant has not established with the requisite degree of probability that, if the President does not grant the interim measures applied for, it will suffer serious and irreparable harm.
43 Therefore, the application for interim measures must be dismissed for lack of urgency, and there is no need to consider whether the application may be deemed admissible and, if so, whether the other conditions for the grant of the suspension of operation sought are satisfied.
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, 23 January 2009.