Keywords
Summary

Keywords

1. Applications for interim measures – Interim measures – Conditions for granting – Urgency – Prima facie case – Cumulative conditions – Balancing of all the interests involved

(Art. 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

2. Applications for interim measures – Suspension of operation of a measure – Suspension of operation of a decision on public procurement

(Art. 242 EC)

3. Applications for interim measures – Suspension of operation of a measure – Suspension of operation of a decision on public procurement

(Art. 242 EC)

4. Interim proceedings – Suspension of operation of a measure – Suspension of operation of a decision on public procurement

(Art. 242 EC)

Summary

1. Article 104(2) of the Rules of Procedure of the Court of First Instance 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 (fumus boni juris). Those conditions are cumulative so that an application for interim measures must be rejected if one of them is absent. In an appropriate case the President has also to weigh up the interests at stake. Moreover, in the context of that overall examination, the President enjoys a wide margin of discretion and remains free to determine, in 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.

(see paras 26-27)

2. Although the President may not pre-judge the measures that the Commission might take to comply with a judgment annulling a decision, the general principle of the right to full and effective judicial protection means that parties before the courts must be granted interim protection if this is necessary to ensure the full effectiveness of the subsequent definitive judgment, in order to prevent a lacuna in the legal protection afforded by the Community courts.

In interim proceedings on the award of a public contract, it must therefore be considered whether, following a judgment annulling a decision, the fact that the Commission could organise a new tendering procedure would repair the damage caused to the applicant and if the answer to that question is in the negative, to assess whether the applicant could be compensated.

(see paras 104-105, 107)

3. Where an applicant has lost an opportunity to be awarded a contract which is the subject of a public procurement procedure and it is very difficult or even impossible to quantify and therefore assess with the required accuracy the damage resulting from that loss, that loss may be considered to constitute damage which is very difficult to repair in an equivalent form. That is also the case where it is very difficult, given the circumstances of the case, to quantify the value of a competitive advantage and, consequently, to determine with sufficient accuracy the damage resulting from failure to obtain it.

(see paras 118, 127)

4. The loss of an opportunity to be awarded, or to perform, a public contract is inherent in the exclusion from the tendering procedure at issue and cannot be regarded as constituting, in itself, serious damage independently of a concrete assessment of the specific damage alleged in each case. Consequently, in the case of a procedure for the award of a public contract, the applicant’s loss of the opportunity to obtain and perform the contract at issue will constitute serious damage only if the applicant can prove to the requisite legal standard that it would have obtained a sufficiently significant advantage from the award and performance of the contract concluded on the basis of the invitation to tender.

Although, where the applicant is an undertaking, the seriousness of material damage must be assessed in the light, in particular, of the size of the undertaking, it is possible that the seriousness of the damage should also be assessed on the basis of other criteria, such as the seriousness of the effect on market shares or of the change in the competitive position of the undertaking.

(see paras 131-132, 134-135)