ORDER BY THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES
14 November 2012 (*)
(Interim proceedings – Public procurement – Tendering procedure – Rejection of a tender – Application for suspension of operation of a measure – Lack of urgency)
In Case T‑403/12 R,
Intrasoft International SA, established in Luxembourg (Luxembourg), represented by S. Pappas, lawyer,
applicant,
v
European Commission, represented by F. Erlbacher and E. Georgieva, acting as Agents,
defendant,
APPLICATION for the suspension of operation of, first, the decision of the Delegation of the European Union to the Republic of Serbia of 10 August 2012 rejecting the tender submitted by the applicant in the public tendering procedure EuropeAid/131367/C/SER/RS concerning technical assistance to the Customs Administration of Serbia to support the modernisation of the customs system and, second, the decision of the Delegation of the European Union to the Republic of Serbia of 12 September 2012 informing the applicant that the Evaluation Committee had recommended that the contract be awarded to another tenderer,
THE JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES,
replacing the President of the General Court, in accordance with Article 106 of the Rules of Procedure of the Court,
makes the following
Order
Procedure and forms of order sought
1 By an application lodged at the Registry of the General Court on 11 September 2012, the applicant, Intrasoft International SA, a company governed by Luxembourg law, brought an action seeking, first, annulment of the decision of the Delegation of the European Union to the Republic of Serbia (‘the Delegation’) of 10 August 2012 rejecting the tender it had submitted in the tendering procedure for a public contract entitled ‘Technical assistance to the Customs Administration of Serbia to support the modernisation of the customs system’ (EuropeAid/131367/C/SER/RS) (‘the decision of 10 August 2012’) and, second, annulment of the Delegation’s implicit decision to reject its claim brought against the decision of 10 August 2012.
2 By separate document, lodged at the Court Registry on 21 September 2012, the applicant initiated the present interim proceedings, in which it claims that the judge hearing applications for interim measures should, in essence:
– order the suspension of operation of the decision of 10 August 2012;
– order the suspension of operation of the Delegation’s decision of 12 September 2012 informing it that the Evaluation Committee had recommended that the contract be awarded to another tenderer;
– order the Commission to pay the costs.
3 In its written observations, which were lodged at the Court Registry on 12 October 2012, the Commission contended that the judge hearing applications for interim measures should:
– declare the application for damages inadmissible or unfounded;
– order the applicant to pay the costs.
Law
4 It is apparent from Articles 278 TFEU and 279 TFEU, read in conjunction with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the application of the act challenged before the General Court be suspended or prescribe any necessary interim measures.
5 Article 104(2) of the Rules of Procedure provides that applications for interim measures must specify the subject-matter of the dispute, the circumstances giving rise to urgency as well as the pleas of fact and law prima facie justifying the grant of the provisional measure sought. The judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is absent (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). Also, where appropriate, the judge hearing the application for interim measures weighs up the interests involved (order of the President of the Court of Justice in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73).
6 Moreover, in the context of that overall examination the judge hearing applications for interim measures 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 (orders 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, and order of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
7 It should also be noted that Article 278 TFEU lays down the general rule that actions do not have suspensory effect, as measures adopted by the European Union institutions are presumed to be lawful. It is therefore only exceptionally that the judge hearing the application may order the suspension of operation of a measure challenged before the Court or order interim relief (see, to that effect, order of the President of the General Court of 17 December 2009 in Case T‑396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and the case-law cited).
8 Having regard to the documents in the case, the judge hearing the application for interim measures considers that he has all the information necessary to give a ruling on the present application for interim measures without the need for the parties to submit oral pleadings.
9 It is appropriate to begin by determining whether the requirement of urgency is satisfied.
10 According to settled case-law, the urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable harm to the party requesting the relief. It does not have to be established with absolute certainty that the harm is imminent; it is sufficient that the harm, particularly when it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability. However, the party invoking such harm is required to prove the facts forming the basis of its claim that serious and irreparable harm is likely (see order of the President of the General Court of 8 June 2009 in Case T‑149/09 R Dover v Parliament, not published in the ECR, paragraph 25 and the case-law cited).
11 Equally, according to well-established case-law, harm of a purely pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty, if it can ultimately be the subject of financial compensation (order of the President of the Court of Justice in CaseC‑471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I‑2865, paragraph 113, and order of the President of the General Court in Case T‑339/00 R Bactria v Commission [2001] ECR II‑1721, paragraph 94).
12 In support of its claim of there being serious and irreparable harm, the applicant states that the market in the Republic of Serbia is a ‘crucial new geographical area’ in its commercial strategy and that, if the suspension of operation of the contested decision is not granted, its position in the market will be irrevocably affected. The applicant also refers to the harm it will suffer from the loss of income as a result of not performing the contract as well as ‘the opportunity to obtain references on which it could then count as a competitive advantage’.
13 As regards, firstly, the harm due to the effect on the applicant’s market position, it should be remembered that such a loss falls within the exceptional circumstances referred to in paragraph 11 above only if the party requesting the interim relief demonstrates a risk of serious and irremediable change in market share (see, to that effect, order of the President of the General Court of 9 June 2011 in Case T‑533/10 R DTS Distribuidora de Televisión Digital v Commission, not published in the ECR, paragraph 35 and the case-law cited). It is clear that, in its application for interim measures, the applicant merely makes assertions which are not supported by any evidence concerning, inter alia, the effect on its market position. Accordingly it cannot be regarded as having demonstrated the point as required.
14 As regards, secondly, the harm arising from the loss of income deriving from the performance of the contract, it should be borne in mind that the loss of an opportunity to be awarded a public contract cannot be regarded as constituting in itself serious harm, since such a loss forms an integral part of exclusion from the tendering procedure in question and the purpose of such a procedure is to enable the authority concerned to select from a number of competing tenders that which appears to it to be the most suitable one, so that an undertaking taking part in a tendering procedure must always keep in mind the possibility that the contract could be awarded to another tenderer (see, to that effect, order of the President of the General Court of 23 January 2009 in Case T‑511/08 R Unity OSG FZE v Council and EUPOL Afghanistan, not published in the ECR, paragraphs 25 to 27 and the case-law cited).
15 Therefore, the undertaking seeking interim relief must demonstrate to the requisite legal standard that it would have been able to derive such sufficiently sizeable benefits from the award and performance of the contract in the tendering procedure that the loss suffered by it of the opportunity to be awarded and to perform the contract would constitute serious harm. Furthermore, the seriousness of material harm must be assessed inter alia in the light of the size of the applicant undertaking (see, to that effect, order in Unity OSG FZE v Council and EUPOL Afghanistan, paragraph 28).
16 In the present case, the Court notes that the applicant has failed to adduce the slightest evidence to show that, having regard in particular to its size, the loss it risks suffering is so serious as to warrant the grant of interim relief. Therefore, in the absence of relevant evidence in the application for interim measures, the judge hearing the application for interim measures does not accept that, for the applicant, the loss of an opportunity to earn income from the performance of the contract in question would be so serious as to warrant the grant of interim relief.
17 In any event, such harm cannot be regarded as being irreparable, or even reparable only with difficulty, since it may be the subject of subsequent financial compensation (see, to that effect, order in Unity OSG FZE v Council and EUPOL Afghanistan, paragraphs 31 to 34).
18 Lastly, in so far as the application for interim measures may be construed as meaning that the applicant pleads damage to its reputation in the market, 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 rules governing the award of public contracts is not in itself in any way injurious. 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 expertise and the subsequent annulling judgment will in principle allow any harm to its reputation to be made good (see, to that effect, order in Unity OSG FZE v Council and EUPOL Afghanistan, paragraph 39 and the case-law cited).
19 In those circumstances, the Court finds that the evidence adduced by the applicant does not establish to the requisite legal standard that, if the interim relief sought is not granted, it will suffer serious and irreparable harm.
20 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 JUDGE HEARING THE APPLICATION FOR INTERIM MEASURES
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 14 November 2012.