27 March 2023 (*)

(Interim relief – Public supply contracts – Services for the organisation of demand aggregation and tendering of gas under the EU Energy Platform – Application for interim measures – Weighing of interests)

In Case T‑1/23 R,

Enmacc GmbH,

established in Munich (Germany), represented by A. von Bonin, A. Pliego Selie and T. van Helfteren, lawyers,

applicant,

European Commission,

represented by J. Estrada de Solà, S. Romoli, G. Gattinara and T. Scharf, acting as Agents,

defendant,

having regard to the order of 5 January 2023, Enmacc v Commission (T‑1/23 R, not published),

having regard to the order of 18 January 2023, Enmacc v Commission (T‑1/23 R, not published),

makes the following

By its application under Articles 278 and 279 TFEU, the applicant, Enmacc GmbH, seeks, in essence, suspension of the operation of the European Commission decision of 12 December 2022 to initiate or continue the negotiated procurement procedure ENER/2022/NP/0041 (‘the procurement procedure at issue’) without prior publication of a contract notice and without having invited the applicant to participate (‘the contested decision’); in the alternative, suspension of the award of the contract in relation to the procurement procedure at issue and, in the further alternative, suspension of the signature of the contract in relation to that procedure.

Background to the dispute and forms of order sought

The applicant is a company under German law which provides an over-the-counter trading platform for, inter alia, gas and electricity.

On 1 December 2022, the Commission launched the procurement procedure at issue with a view to providing services for the organisation of demand aggregation and tendering of gas under the EU Energy Platform.

Having regard to the urgency resulting from the EU energy crisis brought about by the war of aggression waged by the Russian Federation against Ukraine, which led to skyrocketing energy prices, the Commission decided to use the negotiated procedure without prior publication of a contract notice pursuant to Article 164(5)(f) of, and point 11.1(c) 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 8 and 9 December 2022, after having become aware of the fact that the Commission had launched a negotiated procedure without prior publication of a contract notice and without inviting the applicant to participate in the tender, the applicant sent the Commission a request to be invited to participate in that tender.

On 12 December 2022, the Commission, by the contested decision, informed the applicant that it had decided to launch the procurement procedure at issue via negotiated procedure without prior publication of a contract notice for reasons of extreme urgency, and that its request for an invitation could not be granted.

In its Regulation (EU) 2022/2576 of 19 December 2022 enhancing solidarity through better coordination of gas purchases, reliable price benchmarks and exchanges of gas across borders (OJ 2022 L 335, p. 1), the Council of the European Union provides for, inter alia, the swift selection of a service provider in order to establish, urgently and on a temporary basis, an EU-wide platform for demand aggregation and joint purchasing.

By application lodged at the Court Registry on 4 January 2023, the applicant brought an action seeking, primarily, annulment of the contested decision.

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

–order the suspension of the operation of the contested decision;

–in the alternative, order the suspension of the award of the contract in the procurement procedure at issue until the decision in the main proceedings is delivered;

–in the further alternative, in so far as the present application for interim relief was lodged after the Commission awarded the contract in the procurement procedure at issue, suspend the signing of the contract until the decision in the main proceedings is delivered;

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

–order the Commission to pay the costs.

In its observations on the application for interim relief, which were lodged at the Court Registry on 16 January 2023, the Commission contends, inter alia, that the President of the General Court should:

–dismiss the application for interim measures as unfounded;

–order the applicant to pay the costs.

On 25 January 2023, the applicant lodged its observations on the observations of the Commission at the Court Registry.

On the same day, the Commission lodged an application at the Court Registry pursuant to Article 130(2) of the Rules of Procedure of the General Court for a declaration that the application for interim relief has become devoid of purpose and that there is no longer any need to adjudicate on it.

In its observations on the application for a declaration that there is no need to adjudicate on the action, lodged at the Court Registry on 1 February 2023, the applicant claims that the President of the General Court should reject that application.

Law

Subject matter of the application for interim relief

Under Article 130(2) of the Rules of Procedure, a party applying to the Court for a declaration that the action has become devoid of purpose and that there is no longer any need to adjudicate on it is to submit the application by a separate document.

In that context, it must be borne in mind that, according to settled case-law, the requirement that the action must retain its purpose is a prerequisite in order for the Court to exercise its powers, and requires the existence of a concrete advantage that the applicant may procure from the final judgment (see order of 23 February 2021, Frutas Tono v EUIPO – Agrocazalla (Marién), T‑587/19, not published, EU:T:2021:107, paragraph 34 and the case-law cited).

The question whether an action retains its purpose must be combined with that of whether the applicant has an interest in bringing proceedings. However, while the absence of an interest in bringing proceedings leads to the action being dismissed as inadmissible and must be assessed on the date on which the action is lodged, if the action becomes devoid of purpose in the course of the proceedings, meaning that the forthcoming judicial decision may no longer procure an advantage to the applicant, there is no longer any need to adjudicate on the action (see, to that effect, judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42 and the case-law cited). The disappearance of the subject matter of the proceedings can, inter alia, result from the withdrawal or replacement of the contested act in the course of the proceedings (see order of 30 April 2015, Ertico – Its Europe v Commission, T‑499/14, not published, EU:T:2015:285, paragraph 9 and the case-law cited).

The applicant’s advantage in obtaining a judicial decision must be assessed with regard to the extent of the Court’s powers, taking account of the type of action and the context in which it was brought (see, to that effect, judgment of 24 November 2005, Italy v Commission, C‑138/03, C‑324/03 and C‑431/03, EU:C:2005:714, paragraph 25).

In the specific context of proceedings for interim relief, in order to assess whether the suspension of the operation of a measure and the other interim measures sought by the applicant are likely, by their result, to procure an advantage to that party, the judge hearing the application for interim relief must take into consideration, inter alia, that interim measures which would not serve to prevent the serious and irreparable harm feared by the applicant cannot be necessary for that purpose. If the applicant does not have any interest in obtaining the interim measures sought, those measures cannot, therefore, satisfy the criterion of urgency (see, to that effect, order of 27 February 2002, Reisebank v Commission, C‑477/01 P(R), EU:C:2002:126, paragraph 23 and the case-law cited).

In the present case, in its application for a declaration that the application for interim relief has become devoid of purpose, the Commission claims that there is no longer any need to adjudicate on the application for interim relief, on the ground that, as the contract in the procurement procedure at issue was signed electronically on 24 January 2023 following the order of 18 January 2023, Enmacc v Commission (T‑1/23 R, not published), the applicant’s first three heads of claim have become in practical terms impossible and the fourth head of claim, seeking that the Court grant any other measure that it considers appropriate in the circumstances of the present case, is vague and imprecise and clearly fails to meet the requirements of Article 76(d) of the Rules of Procedure.

In that connection, it must be stated that the Commission justified its application for a declaration that there is no need to adjudicate only in the light of the fact that the contract in the context of the procurement procedure at issue had been signed following the order of 18 January 2023, Enmacc v Commission (T‑1/23 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure, by which the President of the General Court cancelled his order of 5 January 2023, Enmacc v Commission (T‑1/23 R, not published), adopted on the same basis, which had ordered the Commission not to proceed to sign any contract in relation to the procurement procedure at issue until delivery of the final order in the present proceedings for interim relief.

This does not, of itself, mean that the application for interim relief has become devoid of purpose within the meaning of Article 130(2) of the Rules of Procedure.

In the first place, it must be stated that the Commission has not withdrawn or varied the contested decision.

In addition, even though the Commission has awarded the tender and the contract has been signed, the applicant still has sufficient interest in obtaining the interim measures sought.

The lawfulness of a decision addressed by the contracting authority to an unsuccessful tenderer or other interested party and the validity of the resulting contract cannot be separated from one another. If the decision is annulled by the Court in the main proceedings, that annulment decision could result in the contracting authority terminating the contract concluded between itself and the successful tenderer.

In such a scenario, the interests of the successful tenderer would be protected in the context of court proceedings. Indeed, in the present case, the successful tenderer for the contract at issue would be entitled to claim damages from the Commission on account of the Commission’s infringement before the competent Brussels courts, under Article I.12.2 of the special conditions of the contract.

In the second place, it must be stated that the Commission awarded the contract in the context of the procurement procedure at issue and signed the contract with the successful tenderer only on 24 January 2023. As a result, on 4 January 2023, at the date on which the application for interim relief was lodged, that application was not devoid of purpose in so far as it seeks to prevent the contract from being awarded and signed.

In the third place, the applicant cannot be deprived of the right to court proceedings before the EU Courts on the ground that, having regard to the circumstances of the case, the President of the General Court, on a provisional basis and ex parte, in accordance with Article 157(2) of the Rules of Procedure, cancelled his order of 5 January 2023, Enmacc v Commission (T‑1/23 R, not published), which had, at first, ordered the Commission not to proceed to sign any contract in relation to the procurement procedure at issue.

If the purpose of the application for interim relief was made dependent on the position adopted by the President of the General Court in his order of 18 January 2023, Enmacc v Commission (T‑1/23 R, not published), on a provisional basis and ex parte, in accordance with Article 157(2) of the Rules of Procedure, before the President of the General Court adopted a final position, this would make it impossible to protect the applicant effectively on a provisional basis and would amount to denying the applicant justice. Such a consequence could constitute breach of the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, which necessarily involves the right of access to justice, one of the founding elements of a European Union based on the rule of law.

It follows from the foregoing considerations that the application for a declaration that there is no need to adjudicate must be rejected.

Substance

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 relief 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. 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 relief 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 relief 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’.

The judge hearing an application for interim relief may order suspension of operation of a measure 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 relief must be dismissed if any one of them is not satisfied. Where appropriate, the judge hearing such an application must also 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 the application for interim relief has a broad discretion and is free to determine, having regard to the specific 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 relief without there being any need first to hear oral argument from the parties.

In the circumstances of the present case, assuming that the conditions relating to a prima facie case and to urgency are satisfied, it must be examined whether the applicant’s interest in obtaining the interim measures sought outweighs the interests pursued by the Commission.

The weighing of interests

36According to the case-law, in weighing up the different interests involved, the judge hearing the application for interim relief has to determine, in particular, whether the interest of the party seeking suspension of the operation of a contested measure in securing that suspension outweighs the interest in the immediate application of the measure, by examining, more specifically, whether the possible annulment of the measure by the Court when ruling on the main application would allow the situation that would be brought about by its immediate implementation to be reversed and, conversely, whether suspension of operation of the measure would prevent it from being fully effective in the event of the main action being dismissed (see order of 11 March 2013, Iranian Offshore Engineering & Construction v Council, T‑110/12 R, EU:T:2013:118, paragraph 33 (not published) and the case-law cited).

37In the present case, regarding the applicant’s interests, it claims that its interest in submitting a tender for a joint gas trading platform and the interest of gas companies throughout the entire European Union in benefiting from a high-quality platform outweigh the interest of the Commission and the European Union in continuing the selection in a non-transparent way of a service provider as swiftly as possible in a non-public procedure and in conditions with limited competition of high-profile tenderers.

38In addition, the applicant submits that the contested decision will not be rendered ineffective by the suspension of the procurement procedure at issue or by suspension of the award of the contract until the Court has ruled on the main action. In the event that the action in the main proceedings is dismissed, the effects of the suspension granted will automatically cease to exist and the contested decision and the power to award the contract will again become fully effective.

39Lastly, the applicant claims that the joint purchasing efforts with respect to gas storage for the winter of 2023 will not be jeopardised by a minimal delay of the timeline due to its participation in the procurement procedure, as it is in a privileged position to seize the business opportunity of joint gas purchasing.

40By contrast, the Commission argues that the weighing-up of interests lies in favour of not suspending the operation of the contested decision, because the present case concerns a tender relating to the purchase of crucially needed services to address the ongoing energy crisis, in the interest of all EU citizens and of the European Union as a whole.

41According to the Commission, running the procurement procedure at issue in order to select a service provider as soon as possible is, for the Commission and for the European Union, a crucial element of the current efforts to combat an extraordinary and severe crisis in the supply of energy, which has also contributed to a rapid increase in inflation harming the economy of the European Union and, above all, EU citizens, consumers and companies.

42In that context, the Commission states that a delay in the implementation of demand aggregation and joint purchasing would have harmful effects on the effectiveness of the joint purchasing system set out in Regulation 2022/2576. Such delay would lead to concentration of demand over a shorter period, which would result in an upward pressure on prices stemming from the tenders being concentrated over a shorter period of time. In addition, undertakings will suffer uncertainty, inter alia, because they will have a shorter period during which to plan their gas demand aggregation in order to fulfil their obligations under that regulation. Depending on the length of the delay, this could even have a more harmful effect on prices than if the system provided for in that regulation had not been implemented at all.

43In that regard, it must be stated that the weighing-up of interests lies in favour of the Commission. Given that the organisation of the procurement procedure at issue is an essential element for the urgent implementation on a temporary basis of the EU joint energy purchasing platform provided for by Regulation 2022/2576, the immediate suspension of the contested decision would risk jeopardising the efforts of the European Union to combat the current energy crisis, which not only puts the economy of the European Union at risk but also seriously undermines the security of energy supply.

44By contrast, the applicant refers, in essence, to its own financial interests, namely the loss of an opportunity to perform the contract, the estimated value of which is EUR 1 000 000.

45In addition, should the applicant be successful in obtaining the annulment of the contested decision in the main action, the harm it would have suffered on account of infringement of its interests could be assessed, so that any harm suffered by the applicant could be offset by a subsequent award of damages.

46In those circumstances, it must also be stated that, having regard to the particular urgency of the case, the judge ruling on the main action decided, on the basis of Article 151(1) of the Rules of Procedure, to adjudicate under an expedited procedure, so that the applicant will obtain the answer of the EU Court at first instance to its application as soon as possible.

47It follows that if an order were made to suspend the operation of the contested decision – which would be made in the purely financial interest of the applicant – this would directly affect the general interest of the European Union, including that of its citizens, consumers and companies, in the urgent implementation on a temporary basis of an EU system for demand aggregation and joint energy purchasing, the primordial political and economic significance of which is undeniable for the European Union. Therefore, the balance of interests in question is not in favour of the applicant.

48It follows from all the foregoing that the application for interim relief must be rejected, without there being any need to examine the condition relating to urgency or that relating to a prima facie case.

49Moreover, even though the Commission’s administrative and procedural conduct could have warranted a decision as to costs in the present order, the President decides not to derogate from the basic rule laid down in Article 158(5) of the Rules of Procedure and to reserve the costs.

On those grounds,

hereby orders:

1.The application for interim relief is dismissed.

2.The costs are reserved.

Luxembourg, 27 March 2023.

Registrar

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Language of the case: English.