14 July 2022 (*)

(Interim relief – Public contracts for services – Trans-European Services for Telematics between Administrations (TESTA) – Application for interim measures – Lack of urgency)

In Case T‑170/22 R,

Telefónica de España, SA,

established in Madrid (Spain), represented by F. González Díaz, J. Blanco Carol, lawyers, and P. Stuart, Barrister,

applicant,

European Commission,

represented by L. André and M. Ilkova, acting as Agents,

defendant,

having regard to the order of 1 April 2022,

makes the following

By its application based on Articles 278 and 279 TFEU, the applicant, Telefónica de España, SA, seeks, first, suspension of the operation of the decision of the European Commission of 21 January 2022 relating to the Call for Tenders DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations (TESTA)’, informing the applicant that its tender was not successful in the procurement procedure and announcing the imminent signing of the contract with the successful tenderer and, secondly, an order requiring the Commission to suspend the signing of that contract.

Background to the dispute and forms of order sought

On 23 May 2019, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2019/S, 099-238502), the Commission launched the restricted call for tenders DIGIT/A 3/PR/2019/010, entitled ‘Trans-European Services for Telematics between Administrations’.

The purpose of that call for tenders is the conclusion of an interinstitutional framework contract with the successful tenderer for the provision of secure and highly available network infrastructure.

On 22 July 2020, a consortium composed of the applicant and two other operators submitted an offer in connection with that call for tenders.

On 18 January 2022, the Commission adopted the award decision, in accordance with the recommendations of the evaluation committee.

On 21 January 2022, the Commission sent the applicant a notification letter informing it of the results of the procedure (‘the contested decision’). That letter informed it, inter alia, that the consortium’s tender had not been successful because it had not been considered to be the most economically advantageous tender. In the same letter, the Commission sent the applicant the score awarded to the consortium’s tender in the light of the award criteria, the name of the winning tenderer, the characteristics and relative advantages of the successful tender and the value of the contract. In addition, in that letter, the Commission informed the applicant that the standstill period, that is to say, the 10-day period during which the contracting authority refrains from signing the contract with the successful tenderer, would begin to run from the day following the date on which that letter was sent and that, if the applicant’s requests or comments justified it, the Commission reserved the right to suspend the signing of the framework contract in order to allow a more detailed examination. Lastly, the Commission reminded the applicant that the submission of observations concerning the award procedure could have neither the purpose nor the effect of suspending or extending the standstill period.

On 31 January 2022, the applicant submitted observations, in which it identified a number of errors allegedly made by the Commission in the evaluation of the tenders.

On 1 February 2022, following the applicant’s observations, the Commission notified all the tenderers that it had decided to suspend the signing of the framework contract pending an additional examination, in accordance with point 35.1 of Annex I to Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU, and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

On 21 March 2022, the Commission informed the applicant that it had concluded the additional examination commenced on 1 February 2022 and that it had identified two errors in the technical evaluation of the consortium’s tender. In that letter, the Commission stated that the authorising officer had confirmed his initial award decision given that the ranking of the tenders had not changed and that the correction of the errors in the technical evaluation had no influence on the legal situation of the consortium. In addition, the Commission reminded the applicant that the submission of observations concerning the award procedure could have neither the purpose nor the effect of suspending or extending the two-month period for bringing an action for annulment of the contested decision.

By application lodged at the Court Registry on 31 March 2022, the applicant brought an action for annulment of the contested decision.

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 that the President of the General Court should:

–order the Commission to suspend the award of the contracts in the context of the contested call for tenders until the Court has given a final ruling on the main action;

–order the Commission to suspend the signing of a contract in that tender procedure;

–grant any other interim measures that the President of the Court considers appropriate in the circumstances;

–order the Commission to pay all the costs incurred by the applicant in connection with the present action.

In its observations on the application for interim measures, lodged at the Court Registry on 29 April 2022, the Commission contends that the President of the Court should:

–dismiss the third head of claim as inadmissible;

–dismiss the application for suspension of operation;

–dismiss in any event the interim measures sought as unfounded;

–order the applicant to pay the costs.

By application lodged at the Court Registry on 17 June 2022, the company BT Global Services Belgium BV requested leave to intervene in support of the form of order sought by the Commission.

On 24 June 2022, the Commission submitted its observations on that application.

On 1 July 2022, the applicant submitted its observations on that application.

Law

It is apparent from Articles 278 and 279 TFEU, read in conjunction with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

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’.

Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, 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 in the main proceedings. 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 is also to undertake, when necessary, a weighing of the competing interests (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).

In the context of that overall examination, the court hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those 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 (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

In addition, it should be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court in accordance with the first paragraph of Article 53 of that statute, and under Article 76(d) of the Rules of Procedure, to which Article 156(5) of those rules refers, the application must state the subject matter of the dispute, the pleas in law and arguments relied on and a brief statement of those pleas in law. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without further information.

Similarly, the applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea which it puts forward, without the Court being obliged, due to a lack of structure in the application or lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party.

Having regard to the material in the file, the President of the Court considers that he has all the information needed to rule on the present application for interim measures, without there being any need to hear oral argument from the parties beforehand.

In the circumstances of the present case, and without it being necessary to rule on the question whether the present application for interim measures satisfies the requirements of Article 76(d) of the Rules of Procedure in terms of clarity, precision, consistency and intelligibility and, more generally, on its admissibility, or on the admissibility of the applicant’s third head of claim, by which it requests the President of the Court to grant any other interim measures considered appropriate, it is necessary to examine first of all whether the condition relating to urgency is satisfied.

In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to avoid a lacuna in the legal protection afforded by the EU Courts. To attain that objective, urgency must generally be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).

As regards, however, litigation related to public procurement, account must be taken, for the purpose of assessing urgency, of the particular features of that litigation.

It follows from the case-law that, having regard to the requirements which follow from the effective protection which must be guaranteed in public procurement matters, when an unsuccessful tenderer is able to show that there is a particularly serious prima facie case, it cannot be required to establish that the rejection of its application for interim measures risks causing it irreparable harm, otherwise the effective legal protection which it enjoys pursuant to Article 47 of the Charter of Fundamental Rights of the European Union would be undermined in a manner that is both excessive and unjustified (order of 23 April 2015, Commission v Vanbreda Risks & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 41).

That easing of the conditions for assessing the existence of urgency in the area of public procurement stems from the fact that the requirement to demonstrate the occurrence of irreparable damage makes it practically impossible for an unsuccessful tenderer to obtain a suspension of the operation of a contract award decision on the ground that the loss which it is likely to suffer, being financial in nature, is not irreparable (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 30). It has therefore been considered necessary, in order to satisfy the requirements which follow from the effective provisional protection that must be guaranteed in public procurement matters, to allow the unsuccessful tenderer to establish urgency other than by demonstrating, in all circumstances, an imminent risk of irreparable harm. In such a case, and to the extent that there is a sufficiently serious prima facie case, proof alone of the seriousness of the harm that would be caused by failure to suspend the operation of the contested decision may be deemed sufficient to satisfy the condition relating to urgency (see order of 21 April 2017, Post Telecom v EIB, T‑158/17 R, not published, EU:T:2017:281, paragraph 21 and the case-law cited).

However, that easing of the conditions for assessing the existence of urgency, justified by the right to an effective judicial remedy, applies only during the pre-contractual phase, provided that the standstill period laid down in Article 175 of Regulation 2018/1046 is respected.

In the present case, the contested decision, which was communicated to the applicant on 21 January 2022, stated that the applicant could submit any observations to the Commission concerning the award procedure within 10 calendar days of the day following the date on which that letter was sent, and that, if its requests or comments justified it, the Commission reserved the right to suspend the signing of the framework contract in order to allow a more detailed examination. In addition, the Commission reminded the applicant that the submission of observations concerning the award procedure could have neither the purpose nor the effect of suspending or extending the standstill period. The standstill period therefore began on 22 January 2022 and ended at midnight on 31 January 2022, before the application for interim measures was lodged on 31 March 2022. That application was thus lodged after the standstill period.

In those circumstances, in accordance with what was stated in paragraph 28 above, the easing of the requirement relating to urgency does not apply.

Nonetheless, it must be noted that the standstill period can place interested parties in the position of being able to contest in law the award of a contract before the contract is concluded only if those interested parties have sufficient information to ascertain whether the award decision was unlawful in any way (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 47).

Having regard to the requirements of the principle of legal certainty, that exception to the purely mechanical application of the standstill period must, however, be reserved for exceptional cases in which the unsuccessful tenderer had no reason to believe that the contract award decision was vitiated by unlawfulness before the contract was concluded with the successful tenderer (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 49).

In the present case, it is apparent from the documents before the Court that, by the contested decision, dated 21 January 2022, by which the Commission informed the applicant that the consortium’s tender had not been selected because it was not considered to be the most economically advantageous, the Commission sent, in Annexes 1 and 2 to that decision, the score given to the consortium’s tender in the light of the award criteria, the name of the winning tenderer, the characteristics and relative advantages of the winning tender and the value of the contract.

On the basis of that information, the consortium was able to submit comments on 31 January, 11 and 16 February and 2 March 2022.

Accordingly, contrary to the preliminary examination carried out by the judge hearing the application for interim measures in the order of 1 April 2022, Telefónica de España v Commission

(T‑170/22 R), which concluded that it appeared, prima facie, that the standstill period had expired on 31 March 2022, that is to say, 10 calendar days after the Commission’s letter of 21 March 2022, it should be held that, on 21 January 2022, the applicant had, as of that date, sufficient information to lodge an application for interim measures.

That finding cannot be invalidated by the applicant’s argument that the consortium did not receive all the materials necessary effectively to exercise its rights of defence, in particular access to a copy of the successful tenderer’s bid.

It should be noted that there would have been nothing to prevent the applicant, up until the expiry of the period for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU, extended on account of distance, as laid down in Article 60 of the Rules of Procedure, from widening the scope of the consortium’s action and the application for interim measures in the light of additional information obtained from the Commission. Moreover, the applicant would even have been authorised, pursuant to Article 84(1) of the Rules of Procedure, to submit new pleas in law in the course of the proceedings, in so far as those pleas were based on matters of law or of fact which had come to light in the course of the procedure before the Court (see, to that effect, order of 30 May 2017, Enrico Colombo and Corinti Giacomo v Commission, T‑690/16 R, not published, EU:T:2017:370, paragraph 45).

In the light of the foregoing, it must be concluded that the applicant had, as of 21 January 2022, sufficient information to lodge an application for interim measures, with the result that the easing of the condition relating to urgency in public procurement matters cannot be applied in the present case.

Accordingly, the Court must examine whether the applicant has established to the requisite legal standard that the implementation of the contested decision would cause it serious and irreparable damage, within the meaning of the case-law referred to in paragraph 24 above.

In the present case, in order to establish the serious and irreparable nature of the damage, the applicant submits, in the first place, that in the absence of the requested interim measures, it would be excluded from the tender procedure at issue on the basis of fundamental breaches of general principles of law and systematic legal errors in the Commission’s evaluation of its offer. The applicant adds that once the Commission has signed the contract with the successful tenderer, it would be impossible for it to be reinstated in the tender procedure. Consequently, its right to participate in the procurement procedure on fair and equal terms would be irreparably lost.

In the second place, the applicant claims that it would suffer serious and irreparable financial damage since it would be excluded from the tender procedure at issue, the value of which is estimated at EUR 423 million over a period of eight years, which is a very significant amount, both in absolute terms and as a percentage of the turnover of the participants in the consortium.

In the third place, the applicant submits that, beyond the monetary damage, first, the contract at issue, because of its high total value, cannot be substituted by any other European or national tender to which it might hope to have access. Secondly, the applicant argues that the award of that tender, with the visibility, reputation, relationship level and potential business offered by that project, would provide very important credentials in terms of reliability in a market where those credentials are essential and could open the door to other opportunities and new business in the public and private sectors. Thirdly, the applicant claims that the lost business would be particularly difficult to replace with other business opportunities with the EU institutions owing to the length of the tendering procedure. Fourthly, the applicant submits that it has lost business opportunities since the preparation of the tender offer prevented it from responding to other calls for tender.

In the fourth place, the applicant submits that the contested call for tenders will fundamentally alter the structure of the market for the provision of network infrastructure for this important market segment over the coming years. In the meantime, the successful tenderer will have gained a substantial advantage in subsequent tenders for the renewal of the contract, in so far as it will be able to draw on its experience in implementing the current project in order to submit offers in subsequent tenders, it will benefit from economies of scale and will be able to draw on the trust and goodwill generated with the Commission in the event of successful implementation. That would not only constitute serious and irreparable harm to the consortium, but would also stand in conflict with the interests of the European Union and its citizens in ensuring the effectiveness of procurement proceedings and selecting the best bid for such a project.

The Commission contends that the applicant has not succeeded in establishing that the condition relating to urgency is satisfied.

In the first place, as regards the applicant’s argument that it would be excluded from the tender procedure at issue owing to fundamental breaches of general principles of law and systematic legal errors in the Commission’s evaluation of its offer, it must be borne in mind that the condition relating to the serious and irreparable nature of the harm alleged is different from that relating to a prima facie case, even if it is not ruled out that a suspension of operation or interim measures may be ordered solely on the basis of the manifest unlawfulness of the contested act, for example, where the latter lacks even an appearance of legality, and it is necessary, on that ground, to suspend its operation forthwith (see, to that effect, orders of 7 July 1981, IBM v Commission, 60/81 R and 190/81 R, EU:C:1981:165, paragraphs 7 and 8, and of 26 March 1987, Hoechst v Commission, 46/87 R, EU:C:1987:167, paragraphs 31 and 32).

However, although, as is apparent from paragraph 110 of the order of 23 February 2001, Austria v Council (C‑445/00 R, EU:C:2001:123), the particularly strong nature of the prima facie case is not without influence on the assessment of urgency, there are, however, in accordance with Article 156(4) of the Rules of Procedure, two distinct conditions for obtaining suspension of operation. It is therefore for the party who has applied for the interim measures to demonstrate the imminence of damage which is serious and reparable only with difficulty, or which is even irreparable, and the mere demonstration of a prima facie case, even a particularly strong one, cannot make up for a complete failure to demonstrate urgency, save in very specific circumstances (see, to that effect, order of 2 May 2007, IPK International – World Tourism Marketing Consultants v Commission, T‑297/05 R, not published, EU:T:2007:118, paragraph 52 and the case-law cited).

In the present case, the Court must examine whether the applicant has demonstrated that the alleged harm, linked to the possible infringement of its right to participate in the procurement procedure at issue on fair and equal terms, is serious and reparable only with difficulty, or is even irreparable.

In that context, the applicant claims, in particular, that, once the Commission has signed the contract with the successful tenderer, it would be impossible for it to be reinstated in the tender procedure.

In that regard, it should be pointed out that the exclusion of the applicant from the tender procedure, which is an inherent consequence of the contested decision, does not necessarily cause it serious and irreparable harm.

In fact, if the contested decision were annulled in the main action, either the Commission could organise a new call for tenders or sufficient protection could be provided for the interests of the applicant, in particular by the payment of compensation by the Commission or by the applicant bringing an action for damages on the basis of Articles 268 and 340 TFEU.

In those circumstances, either the applicant would be placed in competitive conditions similar to those which were in place during the tender procedure, or it would receive compensation for the loss which it might have suffered, possibly in an action for damages brought on the basis of Article 340 TFEU.

In those circumstances, the possibility of bringing an action under Articles 268 and 340 TFEU is sufficient to demonstrate that such damage is, in principle, reparable, despite the uncertainty linked to the outcome of that dispute for compensation (see, to that effect, orders of 14 December 2001, Commission v Euroalliages and Others, C‑404/01 P(R), EU:C:2001:710, paragraphs 70 to 75, and of 5 October 2011, Computer Resources International (Luxembourg) v Commission, T‑422/11 R, not published, EU:T:2011:566, paragraph 27, and the case-law cited).

It follows that the applicant, with its argument that it would be impossible for it to be reinstated in the tender procedure once the Commission has signed the contract with the successful tenderer, has not established the serious and irreparable nature of the alleged damage.

In the second place, as regards the applicant’s argument that the value of the call for tenders at issue, estimated at EUR 423 million, constitutes a very significant amount, both in absolute terms and as a percentage of the turnover of the participants in the consortium, it should be noted that the nature of that alleged damage is purely financial.

Regarding the seriousness of the financial damage alleged, it is settled case-law that the interim measure sought will be justified only if it appears that, without such a measure, the party seeking it would be in a position that could imperil its existence before the final decision in the main action. In that regard, it is settled case-law that the assessment of the serious nature of such damage is carried out in the light of, inter alia, the size and turnover of the undertaking and the characteristics of the group to which it belongs (see order of 21 January 2019, Agrochem Maks v Commission, T‑574/18 R, EU:T:2019:25, paragraphs 33 et 34 and the case-law cited).

In addition, it must be noted that the adverse financial consequences which the unsuccessful tenderer 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 undertaking active in the market must face. Accordingly, the mere fact that the rejection of a tender may have adverse, even serious, financial consequences for the unsuccessful tenderer cannot justify, in itself, the interim measures sought by the latter (see order of 3 July 2017, Proximus v Council, T‑117/17 R, EU:T:2017:600, paragraph 40 and the case-law cited).

Lastly, it is settled case-law that the judge hearing an application for interim measures must have specific and precise information, supported by detailed and certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and makes it possible to assess the consequences that would probably arise if the measures sought were not granted. It follows that that party, in particular when it relies on the occurrence of financial damage, must, as a rule, produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 10 July 2018, Synergy Hellas v Commission, T‑244/18 R, not published, EU:T:2018:422, paragraph 27 and the case-law cited). Moreover, the second sentence of Article 156(4) of the Rules of Procedure expressly provides that an application for interim measures must contain all the evidence and offers of evidence available to justify the grant of interim measures.

In the light of the foregoing, the interim measures sought would be justified, in the circumstances of the present case, only if it appeared that in the absence of such measures the applicant would be in a position, before the final decision in the main action, that could imperil its existence.

However, the applicant has not adduced evidence that it would risk being placed in such a position if the interim measures applied for were not granted.

It must be stated, in that regard, that the applicant has not provided any specific and precise information, supported by detailed and certified documentary evidence, in accordance with the requirements of the case-law cited in paragraph 57 above, which could lead the judge hearing the application for interim measures to find that, in the absence of the interim measures sought, its existence would be put in peril until the Court rules on the case in the main proceedings.

However, as regards the seriousness of the financial harm alleged, it is indeed true that, according to the case-law, financial harm which is objectively considerable or even not insignificant may be considered serious without it being necessary to relate that damage systematically to the turnover of the undertaking which fears that it will suffer that damage (see, to that effect, order of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraphs 32 and 33).

In the circumstances of the present case, having regard to the figures put forward by the applicant, it must be held that the value of the contract at issue is considerable, both as regards the sector in question and as regards the contracting authority and the applicant.

Furthermore, without it being necessary to relate the damage claimed by the applicant to its turnover, it could not be asserted that damage of a scale such as that alleged by the applicant, resulting from a loss of profit of EUR 423 million, is not objectively considerable.

In those circumstances, the seriousness of the harm claimed by the applicant has been proved, on account of the alleged financial harm that may be described as objectively considerable or, at the very least, as being not insignificant.

As regards whether that damage is irreparable, it follows from well-established case-law that harm of a financial nature is considered to be irreparable if it cannot be quantified, that is to say, where it is already clear, when the assessment is carried out by the judge hearing the application for interim measures, that, in view of its nature and the manner in which it will foreseeably occur, the harm alleged, should it occur, may not be adequately identified or quantified and that, in practice, it will not therefore be possible to make good such harm by bringing an action for damages under Articles 268 and 340 TFEU (see order of 13 February 2014, Luxembourg Pamol (Cyprus) and Luxembourg Industries v Commission, T‑578/13 R, not published, EU:T:2014:103, paragraph 90 and the case-law cited).

In the present case, the applicant argues that the value of the call for tenders is of a very significant amount, both in absolute terms and as a percentage of the turnover of the participants in the consortium, and that, for that reason alone, the signing of the contract with the successful tenderer would lead to serious and irreparable harm to the consortium.

However, the applicant has not argued that the harm in question could not be adequately identified or quantified, in accordance with the requirements arising from the case-law cited in paragraph 65 above.

Consequently, it must be found that the applicant has not succeeded in showing that the alleged harm may actually be regarded as irreparable.

In the third place, the same applies to the non-material damage claimed by the applicant, which argues, in essence, that obtaining a contract of such an exceptional value would give it a competitive advantage in terms of visibility and reputation.

In that respect, it is sufficient to bear in mind that the essential and main elements of the contract concluded following a tendering procedure for the award of a public contract are, on the one hand, performance of the contract by the successful tenderer and, on the other, payment of the contractually agreed sum by the contracting authority. In contrast, considerations relating to the reputation of the selected tenderer and the opportunity for it to use the award of a prestigious public contract as a reference in the context of a future tender or in other competitive contexts relate only to accidental and incidental elements of that contract. If the fact that an unsuccessful tenderer suffers a serious loss of profits by failing to obtain the contractually agreed sum, which is the essential and principal element of the public contract at issue, cannot justify the grant of an interim measure, this should also apply, and even more so, as regards the loss of those accidental and incidental elements (see order of 3 July 2017, Proximus v Council, T‑117/17 R, EU:T:2017:600, paragraph 41 and the case-law cited).

It follows that the fact that the applicant is unable to acquire the visibility and reputation implied by the mere performance of the contract at issue cannot constitute serious and irreparable harm.

Moreover, in so far as the applicant asserts that the award of that tender would provide it with very significant credentials in terms of reliability on a market where those credentials are essential and that it could open the door to other opportunities and new business in the public and private sectors, it is relying on purely hypothetical and uncertain situations which the judge hearing applications for interim measures cannot take into account in this context of urgency. As regards its participation in future tender procedures, the applicant must always take account of the possibility that the contract in question will be awarded to another tenderer, with the possible rejection of its offer in such a procedure being, in principle, part of its usual business risk. Lastly, the chance of obtaining some improvement in its general competitive situation cannot, by itself, justify the granting of the suspension of operation applied for (see, to that effect, order of 15 October 2010, Nexans France v Joint Undertaking Fusion for Energy, T‑415/10 R, not published, EU:T:2010:436, paragraph 48).

Furthermore, as regards the applicant’s argument that it has lost business opportunities since there is no prospect of other business opportunities with the EU institutions that may act as a replacement and that it was not possible to respond to other tenders during the period when it was preparing its offer, it must be held that any loss of business opportunities resulting from participation in the contested call for tenders is a pecuniary loss.

However, damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he or she suffered the damage. Any such damage could be remedied by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 53 and the case-law cited).

In addition, it must be stated that by that line of argument the applicant merely points to a risk that is inherent in its legal position as a participant in a procurement procedure which it must assume as a normal business risk and which, by itself, cannot, in accordance with the case-law referred to in paragraph 56 above, justify the grant of interim measures.

In the fourth place, as regards the applicant’s argument that the contested call for tenders will fundamentally alter the structure of the market for the provision of network infrastructure for that important market segment for the coming years since the successful tenderer would in the meantime have gained a substantial advantage in subsequent tenders for the renewal of the contract, it must be observed that, according to well-established case-law, there is urgency only if the serious and irreparable harm feared by the party requesting the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such harm is likely, it being clear that purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 27 February 2015, Spain v Commission, T‑826/14 R, EU:T:2015:126, paragraph 33 and the case-law cited).

It follows that, in the present case, the applicant’s argument that the successful tenderer will obtain a substantial advantage in subsequent tenders for the renewal of the framework contract cannot establish urgency. The damage claimed is purely theoretical, in that it is based on future and uncertain events and therefore it cannot justify the granting of interim measures, in accordance with the case-law cited in paragraph 76 above.

Furthermore, it should be added that one of the main objectives of public tendering procedures is to open up public procurement to the widest competition possible and not to create a situation in which an economic operator holds a monopoly on a public contract.

Consequently, it cannot be foreseen with a sufficient degree of probability that the contracting authority, aware of the possible foreclosure effects specific to the nature of the services at issue, will not guarantee effective and non-discriminatory access to the contract in question to all economic operators in the European Union in subsequent tenders.

Lastly, as regards the applicant’s argument that failure to suspend the award procedure at issue would also conflict with the interests of the European Union and its citizens, it should be borne in mind that, according to settled case-law, an applicant may not, in order to establish urgency, rely on damage caused to the rights of third parties or to the general interest (see order of 26 September 2017, António Conde & Companhia v Commission, T‑443/17 R, not published, EU:T:2017:671, paragraph 35 and the case-law cited).

Accordingly, in order to establish that it is likely personally to suffer serious and irreparable harm, the applicant cannot rely on the possible harm that would be suffered by persons and entities as third parties.

It follows from all of the foregoing that the application for interim measures must be dismissed since the applicant has failed to establish urgency, without it being necessary to rule on the prima facie case or to weigh up the interests.

Since this order closes the proceedings for interim relief, the order of 1 April 2022, Telefónica de España v Commission (T‑170/22 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure, must be cancelled.

Pursuant to Article 158(5) of the Rules of Procedure, the costs must be reserved.

The application to intervene

Since this order dismisses the applicant’s application for interim measures, it is no longer necessary, in the interest of procedural efficiency, to rule on the application to intervene in support of the form of order sought by the Commission lodged by the company BT Global Services Belgium.

In the circumstances of the present case, pursuant to Article 144(10) of the Rules of Procedure, the company BT Global Services Belgium is to bear its own costs.

On those grounds,

hereby orders:

1.The application for interim measures is dismissed.

2.The order of 1 April 2022,

(T‑170/22 R), is cancelled.

3.There is no longer any need to rule on the application to intervene lodged by the company BT Global Services Belgium BV.

4.The costs are reserved, with the exception of those incurred by the company BT Global Services Belgium BV. It shall bear the costs in connection with its application to intervene.

Luxembourg, 14 July 2022.

Registrar

—

Language of the case: English.