Case T‑644/13 R

Serco Belgium and Others

v

European Commission

(Interim proceedings — Public procurement — Tendering procedure — Rejection of a tender — Application for suspension of operation — Prima facie case)

Summary — Order of the General Court (interim proceedings), 4 February 2014

1.      Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved — Order of examination and method of verification — Discretion of the court hearing application for interim relief

(Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2))

2.      Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Examination prima facie of the pleas in law put forward in support of the main action — Action against a Commission decision to reject a tender for a public contract — Interim proceedings in public procurement cases — Aim — Effective judicial protection

(Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(1); European Parliament and Council Directive 2004/18; Council Directive 89/665, first to fifth recitals and Art. 2(1); Commission Regulation No 1268/2012, fortieth recital)

3.      EU public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Assessment of the candidates’ capacity to provide specified services — Award criteria — Comparative assessment of the particular characteristics and merits of individual tenders

(Commission Regulation No 1268/2012, Arts 146 to 149)

1.      See the text of the decision.

(see paras 15-17)

2.      In the context of public procurement procedures, it is appropriate to take into account the particular role of interim relief proceedings. In that respect, regard must also be had to the legal framework put in place by the European legislature which is applicable to contract award procedures organised by Member States’ contracting authorities. In particular, as provided in recital 40 of Delegated Regulation No 1268/2012 on the rules for applying Regulation No 966/2012 on the financial rules applicable to the general budget of the Union, substantive rules on procurement should be based on Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.

Moreover, as stated in recitals 1 to 3 of Council Directive 89/665/EEC 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, in order to ensure the effective application of such rules, the legislature has deemed it necessary to put in place a set of procedural requirements making available speedy remedies at a stage where infringements can meaningfully be corrected. Bearing in mind the short duration of award procedures, the role of interim relief is such that the legislature deemed it appropriate, by virtue of Article 2(1) of Directive 89/665, that it be made available so far as award procedures within the remit of Member States are concerned, independently of the bringing of any prior substantive action. Furthermore, as is apparent from recitals 2, 3 and 5 and from Article 2(1) of Directive 89/665, within the particular context of public procurement, interim measures are not only conceived as a means to suspend the award process but at least equally as a means to correct an apparent infringement, which would otherwise fall within the scope of main proceedings.

Even if such considerations cannot call into question the application of Article 104(1) of the Rules of Procedure which gives effect to Articles 278 TFEU and 279 TFEU and requires the main action to be lodged before a request for interim relief is brought, taking them into account is justified by the fact that, as is the case at national level, interim measures under Title 3 of the Rules of Procedure have as their purpose, in public procurement cases, the ensuring of effective judicial protection with regards to the application of procurement rules applicable to EU institutions and bodies which are, in essence, based on Directive 2004/18. Correlatively, although, in the context of interim proceedings, the court hearing the application for interim measures is not required, as a rule, to undertake as detailed an assessment as in the context of the main proceedings, that finding cannot be interpreted as meaning that a detailed assessment is absolutely prohibited.

It is thus appropriate to examine first whether the applicants’ submissions create a prima facie case in the sense that, taking into account the observations of the other parties, they create a serious impression that the contested decision on public procurement is legally flawed.

(see paras 18-23)

3.      See the text of the decision.

(see para. 30)