ORDER OF THE PRESIDENT OF THE COURT
5 October 2011 (*)
(Application for interim measures – Public procurement – Tendering procedure –Rejection of a tender – Application for suspension of operation of a measure – Loss of opportunity – Lack of serious and irreparable damage – Lack of urgency)
In Case T‑422/11 R,
Computer Resources International (Luxembourg) S.A., established in Dommeldange (Luxembourg), represented by S. Pappas, lawyer,
applicant,
v
European Commission, represented by S. Delaude and D. Calciu, acting as Agents, assisted by E. Petritsi, lawyer,
defendant,
APPLICATION for suspension of operation of the decision of the Publications Office of the European Union of 22 July 2011 rejecting the tenders submitted by the applicant in tendering procedure AO 10340 concerning the supply of computing services for software development, maintenance, consultancy and assistance for different types of IT applications (OJ 2011/S 66-106099) and informing the applicant that the relevant framework contract had been awarded to other tenderers,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Facts, procedure and forms of order sought
1 On 5 April 2011, the Publications Office of the European Union (‘the Publications Office’) published, under an open procedure, contract notice AO 10340 concerning the supply of computing services for software development, maintenance, consultancy and assistance for different types of IT applications (OJ 2011/S 66-106099). The contract in question was divided into several lots.
2 The applicant, Computer Resources International (Luxembourg) S.A., together with Intrasoft International SA – both companies active in the field of IT services for institutional bodies, principally the institutions of the European Union – submitted, as a consortium, tenders for two of the four lots covered by the tendering procedure in question, namely Lot 1, entitled ‘Support and specialised administrative applications’, and Lot 3, entitled ‘Production and reception chains’.
3 On 27 June 2011, the Publications Office sent the consortium a request for additional information, asking it to explain how it had calculated the price per man/day in its financial offers. That question was put in the context of an assessment of that price, in the light of which the Publications Office indicated that the price might be considered ‘abnormally low’ for the purposes of Article 139 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1). Article 139(1) of Regulation No 2342/2002 provides that, ‘[i]f, for a given contract, tenders appear to be abnormally low, the contracting authority shall, before rejecting such tenders on that ground alone, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements, after due hearing of the parties, taking account of the explanations received’.
4 On 29 June 2011, the consortium replied to the Publications Office’s request for information of 27 June 2011 by stating that the price per man/day in its financial offers could be explained by its internal organisation and the optimal balance achieved between activities in Luxembourg and activities in Romania. In that reply, the consortium also stated that it had complied with Luxembourg and Romanian employment legislation, in particular as regards the minimum wage and that, in the case of the activities in Romania, the minimum wage had been doubled in order to take account of inflation there, given that the contract was for a four-year period. The consortium also provided the Publications Office with detailed information explaining how the tender reflected compliance with the employment legislation both in Luxembourg and Romania.
5 By letter of 22 July 2011, the Publications Office informed the consortium that its tenders for Lots 1 and 3 had been rejected as being abnormally low, and gave it the name of the successful tenderers (‘the contested decision’). It also stated that the consortium could request further explanations regarding the rejection.
6 By letter of 25 July 2011, the consortium informed the Publications Office that it objected to the contested decision and asked for explanations on a number of points, including the criteria on the basis of which its tenders had been considered abnormally low.
7 The Publications Office dismissed the consortium’s objections by letter of 27 July 2011, to which it appended an extract of the evaluation report setting out the reasons why the consortium’s tenders had been considered abnormally low. According to the Publications Office, the information provided by the consortium in its response, concerning the place of performance of the services and the location of the personnel in Romania, was in contradiction with the tender, which accordingly could not be accepted.
8 By application lodged at the Court Registry on 5 August 2011, the applicant brought an action for annulment of the contested decision.
9 By separate document, lodged at the Court Registry on the same day, the applicant lodged the present application for interim measures, in which it claims, in essence, that the President of the General Court should order the suspension of operation of the contested decision and, if the contract at issue has already been concluded, of that contract.
10 By document of 6 September 2011, the applicant stated, in response to a question put by the Court Registry, that the present application for interim measures fell to be regarded as directed against the European Commission and that it was therefore appropriate to rectify the name of the defendant as cited in that application.
11 In its written observations, lodged at the Court Registry on 7 September 2011, the Commission stated that it was in fact the only defendant in the present case and contended that the President of the General Court should:
– dismiss the application for interim measures as unfounded;
– order the applicant to bear the costs.
Law
Preliminary observation
12 In the light of Article 13(2) 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 of the European Union (OJ 2009 L 168, p. 41), under which any legal action within the areas of competence of the Publications Office is to be brought against the Commission, it is appropriate to approve the rectification of the present application for interim measures so as to indicate that it is directed solely against the Commission (see also judgment of 28 September 2010 in Case T‑247/08 C‑Content v Commission, not published in the ECR, paragraph 35).
Substance
13 Under Articles 278 TFEU and 279 TFEU, read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures.
14 Article 104(2) of the Rules of Procedure of the General Court provides that an application for interim measures is 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. Accordingly, the judge hearing an application for interim measures may order suspension of operation of an act, or other interim relief, 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 interests of the party applying for relief, the order must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, which means that an application for interim measures must be dismissed if any one of them is not met (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
15 Furthermore, in the context of that overall examination, the judge hearing an application for interim measures has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which the various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order of the President in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of the President of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25). Where appropriate, the judge hearing the application must also weigh up the interests involved (order of the President in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73).
16 Lastly, it should to be noted that Article 278 TFEU lays down the principle that actions do not have suspensory effect, since acts adopted by the institutions, bodies, offices and agencies of the European Union are presumed to be lawful. It is therefore only by way of exception that the judge hearing the application for interim measures may order that operation of an act contested before the General Court be suspended or prescribe other interim measures (see, to that effect, order of the President of 17 December 2009 in Case T‑396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and the case-law cited).
17 In the light of the documents in the case-file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures and that it is not necessary first to hear oral argument from the parties.
18 In the circumstances of the present case, it is necessary to consider, first, whether the condition of urgency is satisfied.
19 It should be borne in mind in that regard that, according to settled case-law, the urgency of an application for interim measures must be assessed in relation to the need for interim measures in order to avoid serious and irreparable damage being caused to the party seeking interim relief (order of the President in Case C‑213/91 R Abertal and Others v Commission [1991] ECR I‑5109, paragraph 18; orders of the President in Joined Cases T‑195/01 R and T‑207/01 R Government of Gibraltar v Commission [2001] ECR II‑3915, paragraph 95, and in Case T‑181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 82). However, it is not sufficient to claim that operation of the act suspension of which is sought is imminent; rather, it is for the party seeking such relief to adduce sound evidence that it cannot wait for the outcome of the main proceedings without suffering damage of that kind (order of the President in Case T‑34/02 R B v Commission [2002] ECR II‑2803, paragraph 85). While it does not have to be established with absolute certainty that the damage is imminent, its occurrence must nevertheless – especially, if it depends on a number of factors – be foreseeable with a sufficient degree of probability. The party seeking interim relief is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the President in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67, and order in Neue Erba Lautex v Commission, paragraph 83).
20 It is also settled case-law that damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty, since financial compensation for that damage can normally be obtained subsequently. In such a case, the interim measure sought will be justified only if it appears that, without such a measure, the applicant would be in a position that could imperil its financial viability before final judgment is given in the main action, or that its market share would be affected irremediably and substantially, having regard in particular to the size of its business (see order of the President of 28 April 2009 in Case T‑95/09 R United Phosphorus v Commission, not published in the ECR, paragraphs 33 to 35 and the case-law cited).
21 Moreover, in order to determine whether the damage feared by the applicant is serious and irreparable and therefore justifies, by way of exception, suspension of the operation of the contested decision, the judge hearing the application for interim measures must have hard and precise information, supported by detailed documents showing the applicant’s financial situation and enabling the judge to determine with precision the effects which would probably arise if the measures sought were not granted. Accordingly, the applicant must produce information, supported by documents, capable of producing a true overall picture of its financial situation (see, to that effect, order of the President of 7 May 2010 in Case T‑410/09 R Almamet v Commission, not published in the ECR, paragraphs 32, 57 and 61, upheld on appeal by order of the President of the Court of Justice of 16 December 2010 in Case C‑373/10 P(R) Almamet v Commission, not published in the ECR, paragraph 24).
22 It is settled case-law, moreover, that that true overall picture of the applicant’s financial situation must be provided in the body of the application for interim measures. Such an application must be sufficiently clear and precise in itself to enable the defendant to prepare its observations and the judge hearing the application to give a ruling, where necessary, without other supporting information, it being necessary for the essential facts and points of law on which the applicant relies to be set out in a coherent and comprehensible fashion in the actual application for interim measures (order of the President of 31 August 2010 in Case T‑299/10 R Babcock Noell v Joint Undertaking Fusion for Energy, not published in the ECR, paragraph 17; see also order of the President of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission, not published in the ECR, paragraph 13).
23 In the present case, it should be observed that the applicant claims that it will suffer two types of damage if the application for interim measures is dismissed: (i) financial loss linked to the definitive loss of the opportunity to obtain the contract at issue, even if the contested decision is ultimately annulled by the Court in the main proceedings and (ii) non-pecuniary loss consisting in serious and irreparable damage to its reputation and financial situation.
24 As regards the serious and irreparable damage to its financial situation, the applicant states that it is a small company with a low turnover. It states that in 2010 it achieved profits of only EUR 2 096.77, including the contract at issue. An unlawful rejection of the tender submitted by the consortium of which it is part will therefore have disastrous financial consequences for it and for its 12 employees, who will unavoidably have to be dismissed. The applicant further states that the unlawful rejection of that tender will reduce its financial strength, with the result that it will no longer be able to be involved in public contracts, and that its technical expertise will be reduced owing to loss of the know-how possessed by its employees, adding that the financial loss suffered can hardly be remedied by the ex post facto annulment of the contested decision.
25 As regards the financial loss alleged by the applicant, it should be noted that that loss 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 among a number of competing bids the tender which appears to that authority to meet most closely the predetermined selection criteria. Accordingly, a company which takes 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. In 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 (see order in Babcock Noell v Joint Undertaking Fusion for Energy, paragraph 46 and the case-law cited).
26 As regards the irreparable nature of the loss alleged by the applicant, it should be borne in mind that, when the Court awards damages on the basis of an economic value assigned to the loss suffered owing to loss of earnings, that compensation must as a rule satisfy the requirement laid down in the case‑law of ensuring that the individual loss actually suffered by the party concerned because of the particular unlawful acts of which it was the victim is fully remedied (see order in Babcock Noell v Joint Undertaking Fusion for Energy, paragraph 48 and the case-law cited).
27 It follows that, should the applicant be successful in the main action, an economic value could be assigned to the loss suffered owing to the loss of an opportunity to be awarded the contract in question, which would make it possible to satisfy the requirement that the individual loss actually suffered be fully remedied. Consequently, the applicant has not succeeded in establishing, with a sufficient degree of probability, that the financial loss alleged is irreparable. In particular, the applicant has not demonstrated that it will be prevented from obtaining subsequent financial compensation by means of an action for damages pursuant to Articles 268 TFEU and 340 TFEU, it being clear that, according to well established case-law, the possibility of bringing an action for damages is in itself sufficient to demonstrate that financial damage is, as a rule, reparable, despite the uncertainty of success attaching to such an action (see, to that effect, order of the President in Case C‑404/01 P(R) Commission v Euroalliages and Others [2001] ECR I‑10367, paragraphs 70 to 75, and order of the President of 24 April 2009 in Case T‑52/09 R Nycomed Danmark v EMEA, not published in the ECR, paragraphs 72 and 73).
28 As regards the seriousness of the financial loss alleged by the applicant, it should be borne in mind that financial loss can be recognised as serious only if the applicant company establishes to the requisite legal standard that it could have generated sufficiently large earnings from the award and performance of the contract in question and that, in assessing the amount of that loss, regard must be had to the size of the company and the group to which it belongs, as the case may be (see, to that effect, order in Babcock Noell v Joint Undertaking Fusion for Energy, paragraph 52 and the case-law cited).
29 In order to assess the economic circumstances of a company, particularly its financial viability, account must be taken of the characteristics of the group of companies to which it is linked through its shareholders and, in particular, of the resources available to that group as a whole (see, to that effect, orders of the President in Case C‑12/95 P Transacciones Marítimas and Others v Commission [1995] ECR I‑467, paragraph 12; in Case C‑364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I‑8733, paragraph 49; and in Ziegler v Commission, paragraph 44), which may lead the judge hearing the application for interim measures to find that the condition relating to urgency is not satisfied despite the foreseeable insolvency of the applicant company, considered individually (see order of the President in Case C‑232/02 P(R) Commission v Technische Glaswerke Ilmenau [2002] ECR I‑8977, paragraph 56 and the case-law cited). It must therefore be determined whether the alleged damage can be categorised as serious in the light of the characteristics of the group to which the applicant company belongs (see, to that effect, order of the President in Case C‑43/98 P(R) Camar v Commission and Council [1998] ECR I‑1815, paragraph 36 and the case-law cited).
30 The approach of taking into consideration the turnover of the group to which the company concerned belongs is based on the idea that the objective interests of that company are not independent of those of the natural or legal persons controlling it or within the same group, that coincidence of interests being justification for not assessing the company’s interest in continuing to trade independently of the interest which the other group members have in the company’s continued existence (see, to that effect, order in Ziegler v Commission, paragraph 46 and the case-law cited, and order of the President of 18 June 2008 in Case T‑475/07 R Dow AgroSciences v Commission, not published in the ECR, paragraph 79).
31 It follows that the applicant company, which is required to produce, with supporting evidence, a true overall picture of its financial situation must, where it belongs to a group, either provide the judge hearing the application with all the information necessary for him to be able to assess the financial standing and solidarity which that company derives from its membership of the group, or demonstrate that the objective interests of the applicant company are independent of those of its group (order of the President of 9 June 2011 in Case T‑87/11 R GRP Security v Court of Auditors, not published in the ECR, paragraph 32).
32 As it is, although the applicant in the present case has emphasised that it is a small company, it emerges from its corporate statutes, as set out in the Journal Officiel du Grand-Duché de Luxembourg (Mém. C 1991, p. 15697), that, in 1991, almost all of its shares were held by a Danish corporation, a point which the Commission duly noted in its observations. Moreover, in an annex to the application for interim measures, the applicant referred to its internet site, from which it can be seen that, since 2011, the applicant has belonged to a group established in eight European countries and active in the fields of ‘international public institutions, telecommunications, security and technological outsourcing’. Thus, according to its own information, the applicant is a member of a group of companies.
33 In those circumstances, in order to demonstrate the seriousness of the alleged financial loss, the applicant should have provided all the information necessary to enable an assessment to be made of the financial characteristics of the group to which it belongs. It is clear, however, that the applicant provided no such evidence, whereas the relevant details should have been set out in the body of the application for interim measures (see paragraph 22 above).
34 In the absence of such evidence, the applicant has failed to substantiate its assertions regarding the seriousness of the alleged loss and, in particular, the likelihood that its 12 employees will have to be dismissed and the disastrous financial consequences which that dismissal will entail for the company.
35 Accordingly, the President cannot, on the basis of the applicant’s incomplete description of its financial situation, accept that the alleged urgency exists. Since interim measures are granted strictly by way of exception (see paragraph 16 above), they may be granted only where that description produces a true overall picture of the applicant’s financial situation and is based on evidence (see, to that effect, order in Babcock Noell v Joint Undertaking Fusion for Energy, paragraph 57 and the case-law cited).
36 Consequently, the financial loss alleged by the applicant does not justify the granting of the suspension of operation requested.
37 As regards the non-pecuniary loss alleged by the applicant, it should be observed that the applicant maintains that its exclusion from the tendering procedure is based on an assessment – to the effect that its tender was abnormally low – which could cause great harm to its credibility and reputation, particularly in such a narrow field as the provision of IT services to the European institutions. According to the applicant, this will cause others to be significantly more cautious about working with the applicant because it will be regarded as an unreliable partner in the market, which will lead to a significant – albeit difficult to determine – loss of commercial opportunities. The applicant states that potential commercial partners will be reluctant to cooperate with it. Contracting authorities will also, in a biased and unfair manner, be more cautious and will examine their tenders more meticulously than usual in order to try and find hidden defects, because the applicant will have been placed on a ‘black list’, as a result of which it will be discriminated against, contrary to the principle of the equal treatment of tenderers.
38 In that connection, suffice it to note that participation in a public tendering procedure, by nature highly competitive, involves risks for all the participants and the rejection of a tenderer’s bid under the tendering rules is in no way detrimental in itself. Where the tenders submitted by an undertaking have been unlawfully rejected from a tendering procedure, there is even less reason to believe that that undertaking is liable to suffer serious and irreparable harm to its reputation, since the rejection of its tenders is unconnected with its competences and the subsequent judgment annulling the unlawful act will in principle make it possible for any harm caused to the undertaking’s reputation to be made good (see, to that effect, order in Babcock Noell v Joint Undertaking Fusion for Energy, paragraph 59 and the case-law cited).
39 In so far as the applicant argues that the exceptional feature of the present case consists in the rejection of its tenders as abnormally low and that it is those assessments which cause it irreparable non-pecuniary loss, it must be found that, in stating that those tenders were ‘abnormally low’, the contracting authority merely used, in the context of assessing tenders, an expression used in Article 139 of Regulation No 2342/2002. It did not therefore make any negative value judgment of the applicant’s conduct which could harm its reputation or financial situation. The categorisation of a tender as abnormally low is equivalent, in legal terms, to the categorisation based on the tenderer’s lack of financial, economic, technical or professional capacity in the light of the specific contract at issue, for the purposes of Articles 136 and 137 of Regulation No 2342/2002.
40 In that regard, a clear distinction must be drawn between the present case, which comes under Article 139 of Regulation No 2342/2002, and the case, governed by Article 133 of that regulation, of a tenderer who has been guilty of making false declarations, serious failure in performing his contractual obligations, fraud, corruption or involvement in a criminal organisation or money laundering and who, for one of those reasons, may be excluded for a time from the contracts financed by the budget of the European Union.
41 Moreover, unlike a tenderer who is excluded for a time from contracts financed by the budget of the European Union and whose name is entered on a central database which is accessible to the other institutions of the European Union under Commission Regulation (EC, Euratom) No 1302/2008 of 17 December 2008 on the central exclusion database (OJ 2008 L 344, p. 12), there is nothing to indicate that, in the present case, the applicant was actually entered on a ‘black list’, accessible to the European Union institutions, because of the abnormally low tender which it submitted in the procurement procedure at issue. Nor has the applicant established that the Publications Office disclosed to other contracting authorities – or intends to do so – the grounds for rejecting its tenders, or relied on the existence of a consistent inter-institutional practice of exchanging information in this connection. The applicant merely makes an assertion, unsupported by any evidence, which is open to verification by the President. Accordingly, the President can do no more than take note of the defendant’s observations to the effect that the grounds for rejecting the applicant’s tenders have not been disclosed to any third party and are not accessible to the public and that the applicant is not under a duty to disclose to other contracting authorities the reasons for which its tenders were rejected in the procurement procedure at issue.
42 As regards the applicant’s assertions to the effect that contracting authorities will be more cautious about the applicant in future tendering procedures because it will be regarded as an unreliable partner in the market, which will lead the applicant to suffer a significant loss of commercial opportunities, suffice it to note that this is mere speculation as to the possible future conduct of certain contracting authorities in the context of possible public contracts. Such claims are not sufficient to prove that the alleged damage will probably occur, as the applicant has not adduced evidence to substantiate a finding that the mere loss of the contract at issue will prevent it in future from successfully carrying out the provision of other services on the same scale and from participating in tendering procedures launched by contracting authorities.
43 Since the applicant has failed to establish urgency, the present application for interim measures must be dismissed, without there being any need to examine whether the other conditions for granting suspension of operation, including that relating to a prima facie case, are satisfied.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 5 October 2011.