ORDER OF THE PRESIDENT OF THE COURT
25 January 2012 (*)
(Application for interim measures – Public services contract – Tendering procedure – Services of translation into Maltese – Rejection of a tender – Arrangements for communication – Application for suspension of operation of a measure – Loss of opportunity – Lack of serious and irreparable damage – Lack of urgency)
In Case T‑637/11 R,
Euris Consult Ltd, established in Floriana (Malta), represented by F. Moyse, lawyer,
applicant,
v
European Parliament, represented by L. Darie and F. Poilvache, acting as Agents,
defendant,
APPLICATION for suspension of operation of the decision of the European Parliament of 18 October 2011 in the tendering procedure (MT/2011/EU) for the provision of translation services into Maltese (OJ S 56‑090372) and rejecting the tender submitted by the applicant,
THE PRESIDENT OF THE COURT
makes the following
Order
Background to the dispute, procedure and forms of order sought
1 The applicant – Euris Consult Ltd – is engaged in providing translation services into Maltese and currently has 10 employees. Since 2009 it has had a contract to provide such services for the European Parliament.
2 In March 2011 the Parliament launched a call for tenders in relation to a tendering procedure (MT/2011/EU) for the provision of translation services from several languages into Maltese (OJ S 56-090372). In accordance with Article 143(3) 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), the call for tenders stated, inter alia, that each tender had to be sent under double cover in order to maintain its confidentiality; that the two envelopes were to be sealed; and that, if self-adhesive envelopes were used, they were to be sealed with adhesive tape bearing the signature of the sender. In that regard, it was specified that any tender which failed to maintain the confidentiality of its contents until the opening of all the tenders would be rejected automatically.
3 The applicant participated in the above tendering procedure. Through a courier company, it sent the Parliament a large courier bag in which there were three brown envelopes containing, respectively, the original of its tender and two copies of that tender. The Parliament received the courier bag on 13 May 2011.
4 On 16 June 2011, at the opening of all six tenders received, the opening committee found that the envelopes in the courier bag sent by the applicant were damaged. On that basis, by decision of 18 October 2011, the Parliament rejected the applicant’s tender for failure to comply with the submission rules intended to maintain the confidentiality of the content of tenders (‘the contested decision’), observing, in particular, that:
‘[t]he outer courier bag provided by the courier company was closed, but not sealed. The inner layers which were the only layer of packaging provided by the tenderer were badly worn to the extent of being completely open. The committee decided that confidentiality was not guaranteed and therefore rejected the tender.’
5 By application lodged at the Court Registry on 15 December 2011, the applicant brought an action for annulment of the contested decision. It claims, in particular, that the Parliament erred in law in requiring that the courier bag, which was definitely ‘closed’, had to be ‘sealed’, without defining those terms, and in ignoring the fact that it was the tender opening committee which opened the bag in order to access its contents, thereby itself putting an end to the confidentiality of the tender.
6 By separate document lodged at the Court Registry on 16 December 2011, the applicant made the present application for interim measures, in which it claims, in essence, that the President of the Court should suspend operation of the contested decision pending a ruling on the main action.
7 In its observations on the application for interim measures, lodged at the Court Registry on 13 January 2012, the Parliament contends that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
8 In its observations, the Parliament states, inter alia, that the contract in which the tendering procedure in question was intended to culminate was concluded with the successful tenderer on 21 December 2011 and took effect on 1 January 2012.
Law
9 In accordance with 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 a measure challenged before the General Court be suspended or prescribe any necessary interim relief. Nevertheless, Article 278 TFEU lays down the principle that actions do not have suspensory effect, since measures adopted by the institutions, organs and agencies of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing the application may order suspension of operation of such a measure, or other interim relief (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).
10 Moreover, 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).
11 In the context of that overall examination, the judge hearing an application for interim measures has a wide discretion and is free to determine, in the light of the specific circumstances of the case, the manner in which it must be ascertained whether those various conditions are satisfied, and the order in which this examination is to be carried out, there being no rule of law imposing a pre‑established scheme of analysis within which the need to prescribe 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 balance the interests involved (order of the President in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73).
12 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.
13 In the circumstances of the present case, it is appropriate first to examine whether the condition relating to urgency is satisfied.
14 In the application for interim measures, the applicant states in relation to the condition of urgency that:
‘The need to suspend the [contested] decision is urgent because the [a]pplicant’s financial viability is threatened by [that decision]’
‘The [a]pplicant is heavily dependent on its contract with [the Parliament]. The contract represented more than 80% of its turnover over the [last] three years (i.e. 2009, 2010 and 2011 to date) (Annex AS8).’
‘Moreover, to perform on those service contracts the [a]pplicant employs ten (10) persons full time. If the contract with the [a]pplicant is not renewed, those positions will be terminated because they cannot otherwise be maintained.’
The contested decision ‘harms the [a]pplicant by putting its financial situation in danger’.
15 In that regard, it should be borne in mind 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 1‑5109, 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 of which suspension 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 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).
16 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, regard being had 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).
17 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 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 and complete 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).
18 In the present case, it is clear that the few assertions put forward by the applicant in the application for interim measures far from provide a true and complete picture of its financial situation, as required by the case-law cited in paragraph 17 above.
19 Moreover, it should be noted that the damage alleged by the applicant 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 tenders that which appears to the authority to comply best with predetermined selection criteria, with the authority having a broad discretion for that purpose. Accordingly, 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. 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 of the President of 23 January 2009 in Case T‑511/08 R Unity OSG FZE v Council EUPOL Afghanistan, not published in the ECR, paragraphs 25 and 26 and the case-law cited).
20 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 damage alleged in each case considered (see order in Unity OSG FZE v Council EUPOL Afghanistan, paragraph 27 and the case-law cited), all the more so since even a tenderer whose offer has been accepted must anticipate that, before signing the contract, the contracting authority may, pursuant to the first paragraph of Article 101 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), either abandon the procurement or cancel the tendering procedure, without that tenderer being entitled to claim any compensation.
21 In consequence, the applicant undertaking must show to the requisite legal standard that it would have been able to derive sufficiently sizeable benefits from the award and performance of that contract in order to establish that the loss of that opportunity would cause it serious damage (see order in Unity OSG FZE v Council EUPOL Afghanistan, paragraph 28 and the case-law cited).
22 However, the application for interim measures is silent as to the benefits which the applicant would have been able to derive from the award and performance of the contract in question. As regards the statement of the applicant’s accountant, appended to the application as Annex AS8, it relates to the financial impact of a contract other than that liable to be concluded at the end of the tendering procedure in question. Consequently, apart from the fact that it is not substantiated by any documentary evidence relating to the applicant’s actual financial situation, that statement is irrelevant in the present context.
23 Accordingly, in the absence of relevant evidence in the application for interim measures, the applicant has not established that the loss of its opportunity to obtain the income arising from the performance of the contract in question would be sufficiently serious to justify ordering interim measures. In the absence of such evidence, the applicant has failed in particular to establish that, without the suspension sought, it would find itself in a situation likely to jeopardise its very existence.
24 Nor, moreover, has the applicant demonstrated that, if the contested decision were to be annulled, it could not obtain subsequent financial compensation by means of an action for damages under Articles 268 TFEU and 340 TFEU, given that, in accordance with settled case-law, the mere possibility of bringing such an action is sufficient to demonstrate that pecuniary damage is in principle reparable, notwithstanding uncertainty as to the outcome of such legal proceedings (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).
25 Since it has submitted a tender for the contract at issue, it should be possible for the applicant, in any future dispute concerning compensation, to compare that tender with the tender accepted by the Parliament. In that context, it is apparent from settled case-law that, where the General Court 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. 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 damage suffered be fully compensated (see, to that effect, order in Unity OSG FZE v Council EUPOL Afghanistan, paragraphs 32 to 34 and the case-law cited).
26 Furthermore, as regards the applicant’s argument that it 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 damage to the rights of third parties. Accordingly, the damage suffered by the applicant’s employees cannot properly be invoked in order to substantiate the urgency of the suspension of operation sought. That damage is not damage to interests which are personal to the applicant (see, to that effect, order in Unity OSG FZE v Council EUPOL Afghanistan, paragraph 38 and the case-law cited).
27 It should be added that the applicant has failed to specify in what way the loss of its employees would damage the business itself.
28 It follows from all of the foregoing that the application for interim measures must be dismissed for lack of urgency, and there is no need to consider whether the other conditions for the grant of the suspension of operation sought are satisfied.
On those grounds,
THE PRESIDENT OF THE COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 25 January 2012.