11 April 2025 (*)

( Interim relief – Public works contracts – Application for suspension of operation of a measure – No urgency )

In Case T‑658/24 R,

established in Warsaw (Poland), represented by K. Kuźma, M. Gajdek, W. Hartung and D. Sarmiento Ramírez-Escudero, lawyers,

applicant,

European Border and Coast Guard Agency (Frontex),

represented by C. Carroll and R.-A. Popa, acting as Agents, and by M. Troncoso Ferrer and L. Lence de Frutos, lawyers,

defendant,

having regard to the order of 13 February 2025, Warbud v Frontex (T‑658/24 R, not published),

makes the following

By its application based on Articles 278 and 279 TFEU, the applicant, Warbud S.A., requests, in the first place, suspension of operation of the decision of the European Border and Coast Guard Agency (Frontex), as notified on 23 October 2024 and 7 February 2025 in the award procedure bearing the reference FRONTEX/CD/1217/2021/RS – FRONTEX Permanent Premises, informing it that the tender it submitted had not been successful and that the framework agreement had been awarded to another tenderer and, in the second place, suspension of the signature of the framework agreement with the successful tenderer.

Background to the dispute and forms of order sought

On 12 July 2022, by a contract notice published in the supplement to the Official Journal of the European Union (OJ 2022 S 132), Frontex launched the award procedure bearing the reference Frontex/CD/1217/2021/RS, concerning the design and construction of Frontex’ permanent premises.

The procurement procedure was conducted in the form of a competitive dialogue and took place in three phases. In phase I, economic operators submitted their requests to participate. Phase II – during which Frontex held, with candidates invited to so, a permanent dialogue on the scope and quality of the design and construction works and maintenance services – was subsequently subdivided into two sub-phases: namely, (i) phase II.1, at the end of which Frontex reduced the number of candidates on the basis of the criteria for selecting solutions and (ii) phase II.2, during which Frontex pursued the competitive dialogue through a series of meetings with the selected tenderers. Last, in phase III, the selected tenderers submitted their final technical and financial tenders.

On 16 September 2024, following the competitive dialogue conducted in the context of the award procedure, the applicant submitted its final tender.

On 23 October 2024, Frontex informed the applicant that its final tender had not been successful and provided it with the scores it had obtained on the basis of the award criteria.

On 19 November 2024, based on Frontex’s justification for the scores given to the applicant’s tender and the tender of the successful tenderer, the applicant asked Frontex to reassess the final tenders, claiming that the tender of the successful tenderer should be considered abnormally low and the applicant’s final tender should have received higher scores for certain quality criteria.

On 17 December 2024, Frontex informed the applicant of the decision to suspend the signing of the contract, for additional examination, for a period of two months from the signing of the suspension decision.

By application lodged at the Court Registry on 18 December 2024, the applicant brought an action seeking annulment of the decision of 23 October 2024 informing it that its final tender had not been successful.

By separate document lodged at the Court Registry on 20 December 2024, the applicant made the present application for interim measures, in which it claims that the President of the General Court should:

–order Frontex to refrain from adopting any measures which would undermine the integrity of the present proceedings, including signing a contract with the successful tenderer, until the tenderers are given a reasonable period of time to analyse the justification of Frontex’s reassessment following the additional examination of the final tenders;

–reserve the decision as to the costs.

In its observations on the application for interim measures, lodged at the Court Registry on 31 January 2025, Frontex contends that the President of the General Court should:

–declare the request for interim measures inadmissible or, at least, dismiss it as unfounded;

–order the applicant to pay the costs.

On 7 February 2025, Frontex informed the applicant that, after reassessment of all the tenders, the applicant’s final tender had not been successful and the contract had been awarded to another tenderer. It also communicated to the applicant the scores which it had obtained on the basis of the award criteria.

By a statement of modification, lodged at the Court Registry on 11 February 2025, the applicant claims that the President of the General Court should:

–order Frontex to suspend provisionally the act in which it, in the first place, declared that its tender had not been successful and, in the second place, awarded the contract to another tenderer;

–order Frontex to refrain from signing a contract with the successful tenderer;

–reserve the decision as to the costs.

In its observations on the statement of modification, lodged at the Court Registry on 24 February 2025, Frontex contends that the President of the General Court should:

–declare the additional request for interim measures inadmissible or, at least, dismiss it as unfounded;

–order the applicant to pay the costs.

By a statement of modification lodged on 10 March 2025 in the main proceedings, the applicant requested that the Court annul Frontex’s decision, as notified on 23 October 2024 and 7 February 2025.

By separate document lodged at the Court Registry on 17 March 2025, Frontex, pursuant to Article 130(1) of the Rules of Procedure of the General Court, raised a plea of inadmissibility in the main proceedings, in which it contends that the Court should:

–dismiss the action for annulment as manifestly inadmissible;

–order the applicant to pay the costs.

Law

General considerations

It is apparent from reading Articles 278 and 279 TFEU together 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 a judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe 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 must 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 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, so that an application for interim measures must be dismissed if either of them is absent. The judge hearing an application for interim measures 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).

In the context of that overall examination, the judge hearing an 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).

Having regard to the material 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 without there being any need first to hear oral argument from the parties.

In the circumstances of the present case, and without it being necessary to rule on the admissibility of the present application for interim measures, it is appropriate to examine first whether the condition of urgency is satisfied.

The condition of urgency

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 prevent a lacuna in the legal protection afforded by the EU Courts. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm to the party seeking the interim relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering such harm. While it is true that, in order to establish the existence of that harm, it is not necessary for the occurrence and imminence of the harm to be demonstrated with absolute certainty, it being sufficient to show that harm is foreseeable with a sufficient degree of probability, the party seeking interim measures is nevertheless required to prove the facts forming the basis of its claim that serious and irreparable harm is likely (see order of 16 July 2021, Symrise v ECHA, C‑282/21 P(R), not published, EU:C:2021:631, paragraph 40 and the case-law cited).

Moreover, according to the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.

Nonetheless, having regard to the requirements which follow from the effective protection which must be guaranteed in public procurement matters, the view must be taken that, 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 (see order of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraph 65 and the case-law cited).

It is apparent, in addition, from the Court’s case-law that that easing of the requirements applicable to the assessment of the existence of urgency, justified by the right to an effective judicial remedy, applies only during the pre-contractual phase, provided that the 10-day standstill period laid down in Article 175(3) of 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) is respected (see order of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraph 66 and the case-law cited).

In the present case, it should be noted that the applicant brought the application for interim measures after the closure of the call for tenders and before the signature of the contract, that is to say during the pre-contractual stage.

Consequently, should the applicant successfully demonstrate the existence of a particularly serious prima facie case, it would be sufficient for it to establish the seriousness of the harm which would be caused by the absence of a suspension of operation in order for the condition of urgency to be satisfied, in accordance with the case-law cited in paragraph 24 above.

Accordingly, it is necessary to examine whether the applicant has established that the conclusion of the contract would cause it serious harm.

In the first place, the applicant claims that there is no doubt that, if a contract is signed between Frontex and the successful tenderer, it will irrevocably lose the possibility of being awarded the project. That would entail a significant pecuniary loss, since its tender amounts to 1 344 185 382.86 Zlotys (PLN), making it one of the biggest contracts that it is currently competing for and, due to its considerable size, a key project for its current economic activity.

In the second place, the applicant claims that, aside from significant pecuniary loss, the fact of not being awarded that contract would prevent it from gaining experience in carrying out a project unique on the Polish and European market, which may have an influence on its future economic activity. According to the applicant, it is essential for its recognition on the European construction market to be awarded that contract.

Frontex disputes the applicant’s arguments.

In that regard, in the first place, as regards the applicant’s argument that it will irrevocably lose the possibility of being awarded the project at issue, it must be observed that the loss of an opportunity to be awarded and to perform a public contract is inherent in exclusion from the tendering procedure in question and cannot be regarded as constituting in itself serious harm, independently of an actual assessment of the seriousness of the specific damage alleged in each case considered. Therefore, the applicant’s loss of an opportunity to be awarded and to perform the contract will constitute serious harm only if the applicant has established to the requisite legal standard that it would have been able to derive sufficiently significant benefits from the award and performance of that contract in the context of the tendering procedure (see order of 26 September 2017, Wall Street Systems UK v ECB, T‑579/17 R, not published, EU:T:2017:668, paragraph 21 and the case-law cited).

Consequently, it must be held that the mere loss of an opportunity to be awarded a public contract, even if it is a public contract of considerable value, is inherent in exclusion from the tendering procedure in question and cannot be regarded as constituting, in itself, serious harm.

In addition, it should be noted that the applicant merely mentions, in general terms, that, if a contract is signed between Frontex and the successful tenderer, it will irrevocably lose the possibility of being awarded the project at issue and that that will entail significant pecuniary loss, since its tender amounts to PLN 1 344 185 382.86, without providing further details.

As regards the seriousness of the alleged financial damage, it is settled case-law that the assessment of the seriousness of such damage must be 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, paragraph 34 and the case-law cited).

To that end, it is settled case-law that the judge hearing an application for interim measures must have concrete and precise indications, supported by detailed, certified documentary evidence, which show the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 27 and the case-law cited).

In the present case, the applicant merely refers to potential significant financial damage, based on the estimated value of the contract. However, it does not produce any specific evidence concerning the financial situation of the group to which it belongs in order to enable an assessment of the probable consequences of a failure to adopt the measures sought.

In that regard, first of all, it should be noted that, both in its observations on the application for interim measures and in those on the statement of modification of that application, Frontex claims that the applicant is part of the major international construction group Vinci S.A.

Next, it must be noted that it is not for the judge hearing an application for interim measures 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 an application for interim measures would, moreover, render ineffective the provision of the Rules of Procedure which requires the application for interim measures to be made by separate document (see order of 27 March 2023, Cogebi and Cogebi v Council, T‑782/22 R, not published, EU:T:2023:162, paragraph 21 and the case-law cited).

In addition, it must be noted that, according to the case-law relating to the unsuccessful tenderer, the adverse financial consequences which that 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 considerable, financial consequences for the unsuccessful tenderer cannot therefore justify, in itself, the interim measures sought by the latter (see order of 8 May 2024, Lattanzio KIBS and Others v Commission, T‑113/24 R, not published, EU:T:2024:306, paragraph 33 and the case-law cited).

In those circumstances, it must be concluded that the applicant has not succeeded in demonstrating urgency on account of a significant pecuniary loss.

In the second place, as regards the applicant’s argument that it is essential for its recognition on the European construction market to be awarded the contract, it must be borne in mind that, according to the case-law, 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. By contrast, considerations relating to the reputation of the successful 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).

Therefore, the fact that the applicant cannot acquire the recognition which performing the contract at issue entails cannot constitute serious harm.

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

Since the present order closes the proceedings for interim relief, it is necessary to cancel the order of 13 February 2025, Warbud v Frontex (T‑658/24 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure, pursuant to which Frontex was ordered to suspend the operation of the act of 23 October 2024, as notified to the applicant by Frontex on 23 October 2024 and 7 February 2025, until the date of the order terminating the present proceedings for interim measures.

In accordance with Article 158(5) of the Rules of Procedure, the costs should be reserved.

On those grounds,

hereby orders:

1.The application for interim measures is dismissed.

2.The order of 13 February 2025, Warbud v Frontex (T‑658/24 R), is cancelled.

3.The costs are reserved.

Luxembourg, 11 April 2025.

Registrar

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Language of the case: English.