22 March 2023 (*)

(Interim relief – Public procurement – Financial Regulation – Exclusion from procurement procedures funded by the general budget of the European Union and by the EDF for a period of two years – Application for suspension of operation of a measure – Lack of any urgency)

In Case T‑776/22 R,

TP, represented by T. Faber, F. Bonke and I. Sauvagnac, lawyers,

applicant,

European Commission, represented by F. Moro, F. Behre and P. Rossi, acting as Agents,

defendant,

makes the following

1By its application based on Articles 278 and 279 TFEU, the applicant, TP, seeks suspension of the operation of the decision of the European Commission of 1 October 2022, by which it was excluded from participating in award procedures governed by 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), from being selected for implementing EU funds and from participating in award procedures governed by Council Regulation (EU) 2018/1877 of 26 November 2018 on the financial regulation applicable to the 11th European Development Fund, and repealing Regulation (EU) 2015/323 (OJ 2018 L 307, p. 1) (‘the contested decision’).

Background to the dispute and forms of order sought

2The applicant is a company [confidential] which is active in the [confidential].

3On 5 October 2009, the Commission concluded a contract with a consortium consisting of the applicant and another operator [confidential].

4In February 2012, shortly after [confidential] was put into operation [confidential].

5On 17 December 2013, the Commission issued the consortium with an anticipated notice of termination of the contract [confidential].

6On 14 January 2014, the consortium sent its own notice of termination of the contract [confidential] on the ground that the Commission’s anticipated termination of the contract was unlawful.

7Under [confidential], the Commission and the consortium agreed to resolve their dispute in relation to the termination of the contract by referring it to a Dispute Adjudication Board.

8By decision of 3 July 2014, the Dispute Adjudication Board concluded that the defects [confidential] had been caused, inter alia, by a combination of design failures and poor workmanship, for which both the Commission and the consortium were liable.

9On 15 September 2017, the Commission initiated arbitration proceedings under the arbitration rules of the International Chamber of Commerce (ICC) pursuant to [confidential].

10On 11 February 2020, the ICC arbitral tribunal issued a partial award in which it was found that [confidential].

11On 19 July 2022, the ICC arbitral tribunal issued its final award, in which it found that [confidential].

12On 8 April 2022, the panel referred to in Article 143 of Regulation 2018/1046 sent the applicant a letter notifying it of its intention to issue a recommendation to exclude it from participating in award procedures funded by the EU budget for significant deficiencies in complying with main obligations arising from the contract concluded with the Commission.

13On 24 May 2022, the applicant submitted its observations.

14On 1 October 2022, the Commission adopted the contested decision, by which it excluded the applicant for a period of two years, first, from participating in award procedures governed by Regulation 2018/1046 or funded by the 11th European Development Fund on the basis of Regulation 2018/1877 and, secondly, from being selected for implementing EU funds, on account of having shown significant deficiencies in complying with main obligations in the implementation of a legal commitment financed by the budget, which led to its early termination. In addition, that decision provides, [confidential].

15By application lodged at the Court Registry on 13 December 2022, the applicant brought an action seeking, inter alia, annulment of the contested decision.

16By a separate document lodged at the Court Registry on the same day, the applicant brought the present application for interim measures, in which it claims that the President of the General Court should:

–order that the operation of the contested decision be suspended;

–order the Commission to pay the costs.

17In its observations on the application for interim measures, which were lodged at the Court Registry on 19 January 2023, the Commission contends that the President of the General Court should:

–dismiss the application for interim measures as inadmissible or, in the alternative, as unfounded;

–order the applicant to pay the costs.

Law

General considerations

18It 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 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).

19The first sentence of Article 156(4) of the Rules of Procedure requires applications for interim measures 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’.

20Accordingly, 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 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 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).

21In 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).

22Having 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.

23In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.

The condition relating to urgency

24In 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).

25It is in the light of those criteria that it is necessary to examine whether the applicant has succeeded in demonstrating urgency.

26In the present case, in order to demonstrate that the alleged harm is serious and irreparable, in the first place, the applicant submits that, because of the contested decision, by which it was excluded from participating in any tender procedures relating to contracts financed by the EU budget for a period of two years, it will be deprived of a major source of income. In the applicant’s view, on the basis of the most recent financial results, that loss will result, over the course of two years, in [confidential]. Further, it states that, in certain geographic markets, [confidential], the contested decision will have the effect of causing its immediate bankruptcy, leading to a significant number of people becoming unemployed.

27In order to substantiate the claims made in that regard, the applicant submits, in Annex IM.17 to the application for interim measures, a table showing, for the years 2019/2020, 2020/2021 and 2021/2022, the proportion, in relation to its revenue, of projects financed by the EU budget.

28In the second place, the applicant claims that its reputation has been seriously damaged as a result of the contested decision and may prove difficult to repair, even if it is cleared of any wrongdoing at the conclusion of the main action. It adds that, since it operates on a market with a limited number of players within which rumours spread quickly, if the President of the General Court does not order suspension of the operation of that decision, it will likely find it impossible to restore its reputation with its partners, and indirectly with its customers, in an area in which trust, built over many years, if not decades, is essential to the continuation and development of economic relationships. In its view, once trust is lost, it will be very difficult for it to build that trust again, which will actually prevent it from re-entering certain markets.

29The Commission disputes the applicant’s arguments.

30In that regard, in the first place, as regards the applicant’s argument that the contested decision will have the effect of depriving it of a major source of income, it should be noted that, where the harm referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the applicant would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, as the case may be, the characteristics of the group to which it belongs (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited). Since imminent disappearance from the market does constitute damage that is both irreparable and serious, adoption of the interim measure sought appears justified in such a situation (order of 9 June 2010, Colt Télécommunications France v Commission, T‑79/10 R, not published, EU:T:2010:228, paragraph 37).

31Furthermore, in accordance with settled case-law, damage of a pecuniary nature cannot, other than 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 recouped, inter alia, by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see order of 23 April 2015, Commission v Vanbreda Risks & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited).

32However, the situation is different 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 that harm by bringing an action for damages (see order of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 51 and the case-law cited).

33In order to prove that it is exposed to serious and irreparable damage, the applicant is required to demonstrate to the judge hearing the application for interim measures that it has explored, without success, all the possibilities offered that enable it to prevent the occurrence of such damage, and therefore there is no solution other than, as an exception, to order such measures (see order of 15 December 2015, CCPL and Others v Commission, T‑522/15 R, EU:T:2015:1012, paragraph 46 (not published) and the case-law cited).

34To that end, the judge hearing the application for interim measures must have specific and precise information, supported by detailed, certified documentary evidence, which shows 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, in principle, produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 29 February 2016, ICA Laboratories and Others v Commission, T‑732/15 R, not published, EU:T:2016:129, paragraph 39 and the case-law cited).

35In addition, it should 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).

36It is in the light of those considerations that it is necessary to examine the evidence put forward by the applicant to demonstrate that it would suffer serious and irreparable harm of a financial nature if suspension of the operation of the contested decision were not ordered.

37In the present case, the applicant has not demonstrated or even claimed that it is in a position that would imperil its financial viability before final judgment is given in the main action.

38As is apparent from Annex IM.17 to the application for interim measures, the applicant’s revenue amounted to [confidential].

39In addition, it is also apparent from Annex IM.17 to the application for interim measures and from the applicant’s website that [confidential].

40In the light of those data, it must be stated that, first, in relation to the applicant’s turnover, EU-financed projects represented only [confidential]. Secondly, even assuming that the expected loss of revenue [confidential]

] can be foreseen with a sufficient degree of probability within the meaning of the case-law cited in paragraph 35 above, that loss would represent only around [confidential] of the revenue [confidential].

41In those circumstances, the loss of revenue that the applicant risks incurring does not appear to be such as to threaten its very existence.

42Furthermore, as regards, specifically, the irreparable nature of the alleged harm, the applicant has not demonstrated that it would be unable to obtain subsequent financial compensation for that harm by means of an action for damages. Since the applicant expressly acknowledges that the alleged harm is quantifiable, that harm is, in principle, reparable, in accordance with the case-law cited in paragraphs 31 and 32 above.

43As regards the applicant’s argument that the contested decision will have the effect of causing its immediate bankruptcy in one significant EU Member State [confidential], leading to a significant number of people becoming unemployed, it must be stated that, although the applicant does not provide a description of the capital or shareholder structure of the group to which it belongs, it can be inferred from its written submissions and from its website that [confidential].

44It must be recalled, in that regard, that, in accordance with the case-law cited in paragraph 30 above, the judge hearing the application for interim measures must carry out the analysis of the harm referred to in the light, inter alia, of the size and turnover of the company seeking interim measures and the characteristics of the group to which it belongs.

45In the context of that analysis, it follows from the case-law that the taking into account by the judge hearing the application for interim measures of the resources available, as a whole, to the group to which the company seeking interim measures is linked may lead him or her to find that the condition relating to urgency is not satisfied even where it is foreseeable that that company, taken on its own, would become insolvent. It is therefore necessary to assess whether the alleged harm can be regarded as serious and irreparable in the light of the characteristics of the group to which that company belongs (see order of 5 March 2020, HB v Commission, T‑795/19 R, not published, EU:T:2020:88, paragraph 61 and the case-law cited).

46It follows, a fortiori, that, in circumstances where the foreseeable insolvency specifically concerns a company controlled by the company seeking interim measures, which in turn belongs to a larger group, the assessment of the alleged harm must always be carried out in the light of the characteristics of the entire group to which the company seeking interim measures is linked.

47That taking into account of the financial capacity of the entire group is intended, in particular, to establish that that group provides financial support to the applicant company in the group for the duration of the main proceedings.

48Furthermore, it should be added, in that regard, that, since the risk of immediate bankruptcy of the company controlled by the applicant is based solely on [confidential], the extrapolation into the future of those values is, in any event, purely hypothetical since, in the field of public procurement, there is no guarantee that an economic operator will be awarded the contract in a tendering procedure. According to the case-law, 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).

49It follows from the foregoing that the harm alleged in the present case cannot be regarded as serious and irreparable in the light, in particular, of the size and turnover of the applicant and the characteristics of the group to which it belongs.

50In the second place, as regards the applicant’s argument that its reputation has been seriously damaged as a result of the contested decision, it should be stated that any detrimental effects resulting from the contested decision for the applicant’s reputation and image have, in any event, already occurred and have become permanent. According to settled case-law, suspending the operation of a decision would not make good the damage to that reputation – if such damage is assumed to be established and to have essentially materialised – more than the possible future annulment of the decision at the end of the main action (see order of 12 July 2019, CE v Committee of the Regions, T‑355/19 R, not published, EU:T:2019:543, paragraph 37 and the case-law cited).

51A suspension of operation of the contested decision, which the President of the General Court could, in the present case, order only on a purely provisional basis and as part of a summary procedure, would scarcely be such as to restore the applicant’s reputation (see, to that effect, order of 12 July 2019, CE v Committee of the Regions, T‑355/19 R, not published, EU:T:2019:543, paragraph 38 and the case-law cited).

52Since the purpose of the procedure for interim measures is not to ensure that the damage is made good but to ensure that the judgment on the substance of the case takes full effect, it must be concluded that the applicant has not demonstrated that the contested decision could cause damage to its reputation and image that could no longer be remedied by the enforcement of a decision on the merits of the General Court which would be favourable to it.

53It follows from all the foregoing that the present application for interim measures must be dismissed since the applicant has failed to demonstrate that the condition relating to urgency is satisfied, there being no need to rule on the admissibility of that application, to examine whether there is a prima facie case or to undertake a weighing of interests.

54Under Article 158(5) of the Rules of Procedure, the costs must be reserved.

On those grounds,

hereby orders:

1.The application for interim measures is dismissed.

2.The costs are reserved.

Luxembourg, 22 March 2023.

Registrar

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Language of the case: English.