21 September 2022 (*)

(Interim relief – Public supply contracts – Provision of Development, Implementation, Maintenance/Operations, Advice and Consultancy Services in Accounting/Finance and Financial IT Systems – Rejection of a tenderer’s bid and award of the contract to another tenderer – Application for interim measures – Cancellation of the procurement procedure – Proceedings which have become devoid of purpose – No need to adjudicate)

In Case T‑88/22 R,

Arhs developments SA,

established in Belvaux (Luxembourg), represented by P. Teerlinck, M.‑R. Gherghinaru and L. Panepinto, lawyers,

applicant,

European Commission,

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

defendant,

having regard to the order of 21 February 2022,

makes the following

By its application based on Articles 278 TFEU and 279 TFEU, the applicant, Arhs developments SA, seeks, first, suspension of the operation of the decision of the European Commission of 11 February 2022 rejecting its tender for Lot No 2 in the context of procurement procedure BUDG 19/PO/04, entitled ‘Provision of Development, Implementation, Maintenance/Operations, Advice and Consultancy Services in Accounting/Finance and Financial IT Systems’ (‘the contested decision’) and, secondly, an order that the Commission must not conclude any framework contract on the basis of that decision.

On 25 November 2020, by a contract notice published in the Supplement to the Official Journal of the European Union (OJ 2020/S, 230‑565743), the Commission issued an open call for tenders bearing the reference BUDG 19/PO/04, for the provision of ‘Development, Implementation, Maintenance/Operations, Advice and Consultancy Services in Accounting/Finance and Financial IT Systems’.

The call for tenders was divided into two lots, including Lot No 2, entitled ‘IT SAP’, which concerns the delivery of services in the areas of the development and operations of financial and/or accounting information technology systems to the contracting authorities in various IT technologies, with SAP® as a focal point.

On 26 January 2021, the applicant submitted a tender for Lot No 2 as leader of a consortium composed of five companies in total.

On 11 February 2022, by the contested decision, the Commission informed the applicant that its tender had not been successful and that it had awarded the contract to another tenderer.

By application lodged at the Court Registry on 18 February 2022, the applicant brought an action for, inter alia, annulment of the contested decision.

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

–order, as quickly as possible, and even before the Commission has submitted its observations, the suspension of operation of the contested decision;

–order the Commission not to conclude any contract based on the contested decision;

–order the suspension of operation of the contested decision until the Court has given final judgment on the main application;

–reserve the costs.

On 3 March 2022, following the action for annulment and the application for interim measures brought by the applicant, the Commission informed all the tenderers, including the applicant, first, that it had decided to cancel the procurement procedure relating to the call for tenders at issue, both for Lot No 1 and for Lot No 2, in accordance with Article 171 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), on the ground that contracting authority had identified errors in the procurement documents and, notably, the non-compliance of some selection criteria with that regulation, and, secondly, that a new procurement procedure for that contact would be subsequently re-launched.

In its observations on the application for interim measures, which were lodged at the Court Registry on 4 March 2022, the Commission contends that the President of the Court should:

–declare that the interim measures sought are devoid of purpose;

–reserve the costs of the proceedings.

In its observations on the Commission’s application for a declaration that the interim measures sought are devoid of purpose, which were lodged at the Court Registry on 21 March 2022, the applicant claims that the President of the Court should:

–rule that the application for interim measures becomes devoid of purpose only at the end of the time limit for seeking annulment of the Commission’s decision to cancel the contested tender procedure and to withdraw the contested decision;

–order the Commission to pay the costs.

In that regard, it should be pointed out that, by adopting on 3 March 2022 the decision to cancel the call for tenders at issue, the Commission invalidated the contested decision, in so far as that decision related to the award of the contract covered by the call for tenders. In those circumstances, the invalidation of the contested decision, which caused it to be eliminated from the EU legal order, is equivalent in effect to a judgment annulling that decision (see, to that effect, order of 8 September 2017, Louvers Belgium v Commission, T‑835/16, not published, EU:T:2017:593, paragraph 17 and the case-law cited).

Consequently, the applicant’s argument that its application for interim measures would retain a purpose if the successful tenderer brought an action against the decision cancelling the procurement procedure concerned cannot succeed.

The fact that the successful tenderer has brought an action for annulment of the decision cancelling the procurement procedure concerned does not alter the fact that the contested decision has been revoked by the Commission and can thus no longer take effect (see, to that effect, order of 21 December 2018, Phrenos and Others v Commission, T‑715/18 R, not published, EU:T:2018:1015, paragraph 8).

Accordingly, it must be held that, in view of the fact that the contested decision is invalid, the present application for interim measures has become devoid of purpose.

It follows that there is no longer any need to adjudicate on the present application for interim measures.

Since the present order closes the proceedings for interim relief, it is necessary to set aside the order of 21 February 2022, Arhs developments v Commission (T‑88/22 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure of the General Court, by which the President of the Court ordered the Commission to suspend the operation of the contested decision until the order terminating the present proceedings for interim relief was made.

Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.

On those grounds,

hereby orders:

1.There is no need to adjudicate on the application for interim measures.

2.The order of 21 February 2022, Arhs developments v Commission (T‑88/22 R), is set aside.

3.The costs are reserved.

Luxembourg, 21 September 2022.

Registrar

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Language of the case: English.