Provisional text

9 April 2025 (*)

( Appeal – Interim relief – Public supply contracts – Tendering procedure – Negotiated procedure without prior publication of a contract notice – Application for interim measures – Urgency – Criteria for assessment – Concept of serious harm )

In Case C‑878/24 P(R),

APPEAL under second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 19 December 2024,

Alhares for Security Services and Occupational Safety,

established in Tripoli (Libya), represented by L. Vidal, avocat,

appellant,

the other party to the proceedings being:

European Union Border Assistance Mission in Libya (EUBAM Libya),

represented by E. Raoult, avocate,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

By its appeal, Alhares for Security Services and Occupational Safety requests the Court of Justice to set aside the order of the President of the General Court of the European Union of 6 December 2024, Alhares for Security Services and Occupational Safety v EUBAM Libya (T‑493/24 R, ‘the order under appeal’, EU:T:2024:886), by which the President of the General Court of the European Union dismissed its application seeking, inter alia, the suspension of the conclusion, by the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya), of a public contract for the provision of security services in the call for tenders EUBAM-24-24-Security Services, organised under the negotiated procedure without prior publication of a contract notice.

Background to the dispute

The background to the dispute is set out in paragraphs 2 to 8 of the order under appeal. For the purposes of the present proceedings, it may be summarised as follows.

The appellant is a company governed by Libyan private law, which specialises in the provision of private security services.

EUBAM Libya was established by Council Decision 2013/233/CFSP of 22 May 2013 on the European Union Integrated Border Management Assistance Mission in Libya (EUBAM Libya) (OJ 2013 L 138, p. 15).

On 6 August 2024, EUBAM Libya launched a tendering procedure under the negotiated procedure without prior publication (EUBAM-24-24-Security Services), pursuant to Article 164(1)(d) 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), to conclude a contract with Libyan private security services companies for the benefit of EUBAM Libya, its members, assets and property in Tripoli (Libya).

By two letters dated 29 August and 2 September 2024 respectively, the appellant requested to be allowed to participate in the call for tenders in question, by submitting a tender.

On 5 September 2024, EUBAM Libya informed the appellant that, on the basis of a decision of the European Commission, it was applying ‘flexible procurement procedures’, pursuant to subpoint (c) of the second paragraph of point 11.1, and point 39.2 of Annex I to Regulation 2018/1046, in the light of the crisis situation in which it was required to operate.

On 11 September 2024, in response to a letter sent to it by the appellant on 9 September 2024, EUBAM Libya reiterated its position that the Commission had extended the acknowledgement of that crisis situation and the application of flexible procurement procedures, which allowed it to use a negotiated procedure without prior publication of a contract notice, irrespective of the estimated value of the contract. In addition, EUBAM Libya stated that it was under no legal obligation to invite all authorised operators, including the appellant, to submit a tender for the contract in question.

The closing date for the submission of tenders was initially set at 11 September 2024, then postponed until 16 September, without the appellant having been invited to participate and without it having been authorised to submit a tender.

The proceedings before the General Court and the order under appeal

By application lodged at the Registry of the General Court on 21 September 2024, the appellant brought an action seeking, inter alia, to have set aside, first, the decision of EUBAM Libya, taken on 10 September 2024, not to select it as a candidate invited to submit a tender under the negotiated procedure without prior publication and, second, the decision of 5 September 2024 by which EUBAM Libya had informed it, inter alia, that it was applying flexible procurement procedures, in accordance with subpoint (c) of the second paragraph of point 11.1 and point 39.2 of Annex I to Regulation 2018/1046.

By separate document lodged at the Court Registry on 24 September 2024, the appellant made a request for interim measures, seeking, first, that the conclusion of the public contract to be awarded by EUBAM Libya for the provision of security services in the call for tenders in question be suspended and, second, that EUBAM Libya be ordered to initiate a new tendering procedure for the provision of those services, following a regular procurement procedure.

By the order under appeal, the President of the General Court refused to grant that request.

In paragraph 41 of that order, the President of the General Court held that that request was to be dismissed, since the appellant had failed to establish urgency, and there being no need to rule on whether there was a prima facie case or to weigh up the interests involved.

Forms of order sought by the parties

The appellant claims that the Court of Justice should:

–set aside the order under appeal in its entirety;

–suspend the conclusion of the contract to be awarded by EUBAM Libya for the provision of security services, in the call for tenders in question;

–order EUBAM Libya to undertake a new tender procedure for the provision of security services, following a regular procurement procedure; and

–order EUBAM Libya to pay the costs.

EUBAM Libya contends that the Court should:

–dismiss the appeal as being unfounded; and

–order the appellant to pay the costs.

The appeal

In support of its appeal, the appellant puts forward three grounds of appeal. The first ground of appeal alleges an error of law in the assessment of urgency by the President of the General Court. The second ground of appeal seeks to establish that there is a particularly serious prima facie case. The third ground of appeal seeks, in essence, to establish that there is continuing urgency.

The first and third grounds of appeal

Arguments

By the first ground of appeal, the appellant submits, in essence, that the order under appeal is vitiated by an error of law on the ground that, in his assessment of urgency and, in particular, in paragraph 32 of that order, the President of the General Court placed the concept of ‘serious harm’ on the same footing as that of ‘irreparable harm’. By relying, in that paragraph, on the fact that the appellant did not refer to a risk of harm jeopardising its very existence, the President of the General Court required the appellant to demonstrate that there was a risk of irreparable harm. In that regard, the President of the General Court failed to have regard to the case-law arising from the order of the Vice-President of the Court of Justice of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275). It is apparent from that case-law that, in the field of public procurement, a tenderer seeking interim measures during the pre-contractual phase is required only to establish the risk of ‘serious’ harm, and not ‘serious and irreparable’ harm, in so far as there is a particularly serious prima facie case.

In order to be regarded as ‘serious’, it is sufficient that the harm in question can be classified as ‘objectively significant’ or at least ‘not inconsiderable’. In such a context, the level of seriousness of the harm required by the President of the General Court is contrary to that case-law and deprives the appellant of its right to an effective judicial remedy.

In the present case, the appellant is exposed to the risk of serious harm as a result of the loss of an opportunity to obtain turnover from the contract concerned, which it estimates at approximately EUR 21 million, and to benefit from the good reputation which would have resulted from the award of that contract.

By its third ground of appeal, the appellant reiterates the arguments put forward in support of the first ground of appeal, including those relating to the significant damage which it claims to have suffered, in view of the value of the contract concerned.

In addition, urgency is also demonstrated by the fact that the operators pre-selected by EUBAM Libya include companies whose managers have links with Libyan Islamist groups or which have been associated with various incidents arising in the context of a previous similar contract.

EUBAM Libya maintains that that line of argument is unfounded.

According to settled case-law, 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 damage 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 damage. While, in order to establish the existence of that damage, it is not necessary for the occurrence and imminence of that damage to be established with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the party seeking interim measures is nevertheless required to prove the facts in the light of which it believes there to be a real risk of such damage occurring (orders of the Vice-President of the Court of Justice of 1 December 2021, Inivos and Inivos v Commission, C‑471/21 P(R), EU:C:2021:984, paragraph 64, and of 22 November 2022, Telefónica de España v Commission, C‑478/22 P(R), EU:C:2022:914, paragraph 45 and the case-law cited).

Nevertheless, having regard to the requirements which follow from the effective judicial 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 damage, otherwise the right enshrined in Article 47 of the Charter of Fundamental Rights of the European Union would be undermined in a manner which is both excessive and unjustified (see, to that effect, order of the Vice-President of the Court 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).

That said, it should be noted that that easing of the condition relating to urgency implies only that serious but not irreparable damage is sufficient to establish it. The party seeking the grant of interim measures is therefore required to show that it cannot await the outcome of the main proceedings without suffering serious damage. In addition, that easing, which is justified by the right to an effective judicial remedy, applies only during the pre-contractual phase (see, to that effect, orders of the Vice-President of the Court of 22 March 2018, Wall Street Systems UK v ECB, C‑576/17 P(R), EU:C:2018:208, paragraph 26, and of 22 November 2022, Telefónica de España v Commission, C‑478/22 P(R), EU:C:2022:914, paragraph 63 and the case-law cited).

In the present case, in accordance with the settled case-law referred to in paragraphs 23 to 25 of the present order, the President of the General Court found in paragraphs 23 and 25 of the order under appeal that, since the appellant had made its application for interim measures during the pre-contractual phase, it was necessary to analyse whether it had established that the conclusion of the contract in question would cause it serious harm. Accordingly, the President of the General Court examined, in the first place, the alleged risk of financial damage and, in the second place, the alleged risk of loss of an opportunity to benefit from the good reputation which would have resulted from the award of that contract.

In his analysis of the alleged risk of financial harm, the President of the General Court took into account, inter alia, in the first sentence of paragraph 32 of that order, the fact that the appellant did not claim to be ‘in a situation which could jeopardise its very existence’. Such a circumstance relates to the harm incurred being not only serious but also irreparable (see, to that effect, order of the Vice-President of the Court of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 34), with the result that it cannot be taken into consideration for the purposes of assessing urgency in the present case, in the light of the case-law referred to in paragraphs 23 to 25 of the present order. Therefore, the reasoning of the President of the General Court does indeed appear to be vitiated by an error of law in that regard.

However, it must be stated that the reasoning of the President of the General Court on the alleged risk of serious harm is based, above all, on the considerations set out in paragraph 29, in the second sentence of paragraph 32 and in paragraph 33 of the order under appeal, from which it is apparent, in particular, that the appellant did no more than ‘mention, in general terms, that the contracts in question are extremely important contracts from a financial perspective’, and argued that it would suffer harm ‘likely to result from the failure to achieve income’, without providing ‘specific and precise information … which demonstrates its financial position and makes it possible to assess the likely consequences of the failure to grant the measures sought’.

It was on that basis that the President of the General Court concluded, in paragraph 35 of that order, that the appellant had failed to establish urgency.

In that regard, it should be recalled that the size of the undertaking may have an influence on the assessment of the seriousness of the financial harm alleged, since that harm will be all the more serious where it is significant compared to the undertaking’s size and correspondingly less serious if the contrary applies. In certain cases, it cannot be excluded that financial harm which is objectively significant may be regarded as serious, irrespective of the size of the undertaking concerned (see, to that effect, order of the Vice-President of the Court of Justice of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraphs 32 and 33), to which the President of the General Court failed to refer in the order under appeal. It is nevertheless for the appellant to show how the financial harm alleged is objectively significant and therefore serious, having regard to the relevant circumstances, including, in particular, the situation in the sector in question, that of the contracting authority concerned or, even, that of that appellant.

In the present case, it must be stated that the appellant is not disputing the findings of the President of the General Court summarised in paragraph 28 of the present order and that it is simply reiterating allegations of a general nature regarding the value of the contract at issue, without explaining how the alleged risk of financial harm, which would result from the loss of the opportunity to be awarded that contract, is objectively significant. In so doing, the appellant therefore still fails to establish how it would be exposed to a risk of serious harm in the absence of interim measures. Therefore, the error of law referred to in paragraph 27 of the present order and the fact that the President of the General Court did not expressly assess whether the risk relied on could be regarded as ‘objectively significant’, irrespective of the size of the appellant, have no bearing on the outcome of the analysis carried out and the appellant’s arguments must be rejected as being ineffective in that regard.

33As regards the alleged risk of harm resulting from the loss of an opportunity to benefit from the good reputation which would have resulted from being awarded the contract at issue, the appellant still fails to explain how the reasoning of the President of the General Court, as set out in paragraphs 36 and 37 of the order under appeal, is vitiated by any error of law. In that regard, the appellant’s arguments are unfounded.

34Lastly, as regards the arguments summarised in paragraph 21 of the present order, which was put forward before the President of the General Court, without, however, the President of the General Court referring to those arguments in the order under appeal, it must be held that that line of argument relates to a risk of harm to the interests of EUBAM Libya and its members.

35It should be borne in mind that, according to settled case-law, the purpose of interlocutory proceedings is to avoid serious and irreparable damage to the appellant’s interests, and it is only the appellant’s interests which must, where the appellant is a private individual, be taken into consideration by the judge hearing the application for interim measures (order of the Vice-President of the Court of Justice of 25 February 2025, WebGroup Czech Republic v Commission, C‑620/24 P(R), EU:C:2025:136, paragraph 43 and the case-law cited).

36Accordingly, the appellant cannot rely on alleged harm to the interests of EUBAM Libya and its members in support of its application for interim measures. In that regard, the order under appeal is therefore also not vitiated by an error of law and the line of argument put forward by the appellant is unfounded.

36Therefore, the first and third grounds of appeal must be rejected as being in part ineffective and in part unfounded.

The second ground of appeal

37By its second ground of appeal, the appellant claims that it is establishing a particularly serious prima facie case.

38In the light of the lack of urgency observed in the order under appeal, and having regard to the rejection of the grounds of appeal relating to the reasoning of the President of the General Court in that regard, there is no need to adjudicate on that second ground of appeal and the appeal must be dismissed in its entirety.

Costs

39Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

40In accordance with Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

41Since EUBAM Libya has applied for costs and Alhares for Security Services and Occupational Safety has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Vice-President of the Court of Justice hereby orders:

1.The appeal is dismissed.

2.Alhares for Security Services and Occupational Safety shall pay the costs.

[Signatures]

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Language of the case: French.