Penta system v Commission (Public supply contracts - Tendering procedure - Order) [2024] EUECJ T-43/24

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(Interim relief – Public supply contracts – Tendering procedure – Rejection of a tenderer’s bid and award of the contract to another tenderer – Application for suspension of operation of a measure – Failure to comply with procedural requirements – Inadmissibility)

Penta system Srl, established in Modugno (Italy), represented by K. Duchoňová, lawyer,

1 By its application based on Articles 278 and 279 TFEU, the applicant, Penta system Srl, seeks the suspension of operation of, first, the decision of the European Commission of 27 November 2003, by which it rejected the bid it submitted in the context of the tender procedure JRC/IPR/2022/RP/1912, entitled ‘Radioactive Waste Management Facilities Operations Maintenance (RAMA) Services’, and, secondly, the decision of the Commission by which it awarded the contract to another tenderer.

3 On 27 November 2023, the Commission informed the applicant that the bid that it had submitted in the tender procedure JRC/IPR/2022/RP/1912 had not been accepted.

4 By application lodged at the General Court Registry on 26 January 2024, the applicant brought an action for the annulment of the contested decisions.

5 By separate document lodged at the Court Registry on the same day, the applicant made the present application for interim measures, requesting the President of the General Court to suspend the operation of the contested decisions.

6 In accordance with Articles 278 and 279 TFEU read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim relief may, if he or she considers that the circumstances so require, order that operation of a measure challenged before the Court be suspended or prescribe any necessary interim measures, having regard to the rules of admissibility laid down in Article 156 of the Rules of Procedure of the General Court.

7 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are 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 measure applied for’.

8 Thus, suspension of the operation of an act and other interim measures may be ordered by the judge hearing the application for 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 applicant’s interests, it must be made and produce its effects before a decision is reached on the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief must also, where appropriate, weigh up the interests involved (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

9 Furthermore, under Article 156(5), and Article 76(d) of the Rules of Procedure, an application for interim measures must, in particular, be made by a separate document, indicate the subject matter of the proceedings and contain a summary of the pleas in law and arguments relied on.

10 It follows from a combined reading of Article 156(4) and (5) and Article 76(d) of the Rules of Procedure that an application for interim measures must be sufficient in itself to enable the defendant to prepare its defence and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out coherently and comprehensibly in the application for interim measures itself. Although specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents cannot compensate for the lack of essential information in the application for interim measures itself, even if those documents are attached to it (see order of 4 December 2015, E‑Control v ACER, T‑671/15 R, not published, EU:T:2015:975, paragraph 8 and the case-law cited).

11 Moreover, point 223 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court expressly states that the application for interim measures must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings, including the annexes thereto.

12 Since failure to comply with the Rules of Procedure constitutes an absolute bar to proceedings, it is for the judge hearing the application for interim relief to consider, if necessary of his or her own motion, whether the applicable provisions of those rules have been complied with (see order of 14 February 2020, Vizzone v Commission, T‑658/19 R, not published, EU:T:2020:71, paragraph 11 and the case-law cited).

13 In the present case it must be noted that, in the application for interim measures, the applicant makes no argument in respect of the requirements for a prima facie case and for urgency, nor in respect of the balancing of the competing interests involved.

14 As regards, in particular, the requirement in respect of a prima facie case, the applicant merely asserts that the contested decisions infringe general principles of public procurement law set out in the ‘Financial Regulation’, as well as its individual rights derived under the Charter of Fundamental Rights of the European Union.

15 Such an absence of arguments does not enable the judge hearing the application for interim relief to make a legal assessment of whether the pleas for annulment relied on in the main action are prima facie well founded.

16 It follows that the application for interim measures is not intelligible in itself without referring to the application in the main proceedings.

17 However, that absence of sufficient explanation, in the application for interim measures, of the constituent elements of a possible prima facie case cannot be compensated for by a reference to the application in the main proceedings.

18 In that regard, it is sufficient to note that it is not for the judge hearing the application for interim relief to seek, in place of the party concerned, those matters contained in the annexes or in the main application which would support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for interim relief would, moreover, render ineffective the provision of the Rules of Procedure which requires the application for interim measures to be made by a separate document (see, to that effect, order of 29 July 2010, Cross Czech v Commission, T‑252/10 R, not published, EU:T:2010:323, paragraph 15 and the case-law cited).

19 It follows that, as regards the requirement of a prima facie case, the application for interim measures does not comply with the requirements laid down in Article 156(4) and (5) of the Rules of Procedure.

20 Similarly, the application for interim measures does not contain a sufficiently precise account of the information that would allow the condition relating to urgency to be examined.

21 In that regard, it should be recalled that, in accordance with settled case-law, urgency must be assessed in relation to the need for an interim order in order to prevent serious and irreparable harm being caused to the party seeking the interim measure. It is not necessary for the imminence of the harm to be demonstrated with absolute certainty. It is enough that it should be foreseeable to a sufficient degree of probability. Nevertheless, the party so pleading remains required to prove the facts forming the basis of its claim that serious and irreparable harm is likely, and to submit to the judge hearing the application for interim relief specific and precise particulars, substantiated by detailed documents illustrating its situation and enabling the judge to examine the precise effects which would probably follow if the measures sought were not granted. The party seeking the interim measure is thus required to provide supporting documents and information that establish a true overall picture of its situation, which, in its view, justifies the grant of those measures (see order of 11 March 2013, Iranian Offshore Engineering & Construction v Council, T‑110/12 R, EU:T:2013:118, paragraph 19 and the case-law cited).

22 In the present case, it must be observed that, in the application for interim measures, the applicant devotes almost no argument to the condition relating to urgency.

23 The applicant merely asserts that the contested decisions may cause irreparable harm and damage to itself and the European Union by using the budget of the European Commission in a way that infringes the law.

24 It must be held that the submissions are developed in an extremely laconic manner by the applicant in the application for interim measures, which does not provide the slightest information as to the irreparable harm and damage that it might suffer, and are not, a fortiori, substantiated by any evidence as to its current situation which could justify granting the suspension of operation sought. Those submissions cannot therefore be regarded as providing a true overall picture of the applicant’s situation. Consequently, the judge hearing applications for interim relief is not in a position to assess, on the basis of a reading of the application for interim measures alone, whether the applicant in fact is at risk of actually suffering harm and, if so, whether that harm may be regarded as serious and irreparable.

25 It follows that, as regards the condition relating to urgency, the application for interim measures does not comply with the requirements of Article 156(4) and (5) of the Rules of Procedure.

26 It follows from all the foregoing that the present application for interim measures must be dismissed as inadmissible, without there being any need to serve it on the defendant.

27 Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Penta system v Commission (Public supply contracts - Tendering procedure - Order) [2024] EUECJ T-43/24_CO (04 March 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T4324_CO.html Cite as: [2024] EUECJ T-43/24_CO

Court of Justice of the European Communities (including Court of First Instance Decisions)