Avis juridique important

Order of the President of the Court of 25 October 1990. - Italsolar SpA v Commission of the European Communities. - Aid financed by the European Development Fund - Invitation to tender - Readmission to the tendering procedure. - Case C-257/90 R. European Court reports 1990 Page I-03841

Parties Grounds Operative part

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Application for interim measures - Suspension of operation - Conditions for granting - Serious and irreparable damage - Financial damage - Suitability of measures applied for

( EEC Treaty, Arts 185 and 186; Rules of Procedure, Art . 83(2 ) )

In Case C-257/90 R,

Italsolar SpA, a company incorporated under Italian law, whose registered office is in Milan, represented by M . Siragusa, M . Nicolazzi and G . Scassellati-Sforzolini, respectively of the Rome, Milan and Bologna Bars, with an address for service in Luxembourg at the Chambers of Messrs Arendt and Medernach, 4 avenue Marie-Thérèse,

applicant,

v

Commission of the European Communities, represented by E . de March and H.-P . Hartvig, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of Guido Berardis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for interim measures with a view to securing the applicant' s readmission to the tendering procedure in relation to a restricted invitation to tender for the supply and installation of photovoltaic equipment issued by the Interstate Permanent Committee for Drought Control in the Sahel,

The President of the Court of Justice

of the European Communities

makes the following

Order

1 By application lodged at the Court Registry on 22 August 1990 Italsolar SpA brought an action under the second paragraph of Article 173, the third paragraph of Article 175, Article 178 and the second paragraph of Article 215 of the EEC Treaty for the annulment of the Commission' s decision, notified to the applicant by letter dated 12 June 1990 from the Directorate-General for Development in which the Directorate-General confirmed that the offer made by the applicant in relation to lots 2 and 3 of a contract for the supply and installation of photovoltaic solar equipment in the countries of the Sahel had not been accepted by the Executive Secretary of the Interstate Permanent Committee for Drought Control in the Sahel ( hereinafter referred to as "ICDCS ") is void . In the alternative, the applicant seeks a declaration that the Commission has failed to take the measures which it was required to take in relation to the applicant under the tendering procedure . Finally the applicant seeks compensation for the damage caused to it by its exclusion from the tendering .

2 By a separate document lodged at the Court Registry on the same day the applicant also made an application under Articles 185 and 186 of the EEC Treaty for interim relief by way of suspension of the operation of the aforementioned decision or of such other interim measures as might be necessary to ensure its readmission to the tendering procedure .

3 The Commission submitted written observations on the application for interim measures on 20 September 1990 and the oral submissions of the parties were heard on 12 October 1990 .

4 It is apparent from the documents before the Court that following a pre-selection procedure the applicant, in July 1989, was invited to take part in a restricted invitation to tender issued by the ICDCS for the supply and installation of photovoltaic equipment to countries belonging to the ICDCS .

5 That contract falls within the scope of a regional programme for the use of solar energy financed by the European Development Fund pursuant to the provisions of the Third ACP-EEC Convention signed at Lomé on 8 December 1984 ( Official Journal L 86, 31.3.1986 ).

6 According to the stipulations in the tender dossier the opening of tenders, including the applicant' s, took place on 7 November 1989 at the seat of the Commission in Brussels .

7 In a telex message of 3 May 1990, confirmed by letter of 7 May 1990, the ICDCS, which was responsible according to the provisions of the tender dossier for concluding the contract, informed the applicant that its tender had not been accepted .

8 Since it took the view that its tender for lots 2 and 3 of the contract was the lowest and had been improperly rejected, the applicant approached the Commission on 7 May 1990 .

9 It is in those circumstances that the Commission' s aforementioned letter of 12 June 1990, confirming that the applicant' s tender had not been accepted by the ICDCS, was written . That letter, moreover, mentions that the programme in which the contract is included, is carried out under the responsibility of the ICDCS, which is responsible for awarding the contract and is not required to state reasons for its decisions .

10 By virtue of Article 83(1 ) of the Rules of Procedure an application for suspension of the operation of any measure adopted by an institution or for another interim relief is admissible only if the applicant has contested the measure in question in an action before the Court or if the application emanates from a party to a case before the Court, and if the interim relief sought relates to that case .

11 It must be pointed out that there are serious doubts as to the admissibility of the main proceedings brought by the applicant inasmuch as that they seek the annulment of the decision contained in the Commission' s aforementioned letter of 12 June 1990 .

12 It is however, not necessary, in the present proceedings on the application for interim relief, to adopt a position on that question of admissibility .

13 It should next be borne in mind that according to Article 83(2 ) of the Rules of Procedure an order for suspension or other interim measures is subject to circumstances giving rise to urgency and to factual and legal grounds establishing a prima-facie case for the interim measures applied for .

14 The Court has consistently held that the urgency of an application for suspension or other interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measures .

15 As regards serious and irreparable damage threatening the party who applies for the suspension or other interim measures, the Court has held ( see recently the order of the President of the Court in Joined Cases C-51/90 R and C-59/90 R Comos Tank BV and Another v Commission [1990] ECR I-2167 ), that damage of a financial nature is not in principle considered to be serious and irreparable unless, in the event of the applicant' s being successful in the main action, it could not be wholly recouped .

16 In that respect the applicant states that the damage with which it is threatened is not solely of a financial nature but results from the fact of being, vis-à-vis its competitors, excluded, without reasons having been given, from a single contract in one of the geographical areas of prime application of photovoltaic energy technology, which is the applicant' s sole activity . Demand in this area will be saturated for many years to come and the effect of not obtaining at least one of the lots in the contract in question will seriously fetter the future development of the applicant' s activities .

17 The applicant states that in consequence the effect of suspension or of the other interim measures applied for should be to bring about the applicant' s provisional readmission to the tendering procedure for the contract in question, which has not yet been definitively concluded . In that way it would be possible to avoid any damage pending final judgment in the case .

18 It should be pointed out that, according to the tender dossier, the power to conclude or not to conclude the contract rests not with the Commission but with the ICDCS . This is in conformity with Article 192 of the Third ACP-EEC Convention, according to which ACP States are responsible for preparing, negotiating and concluding contracts for operations financed inter alia by the European Development Fund .

19 Suspension of the operation of a measure of the Commission or other interim measures directed to the Commission would not therefore result in the applicant' s readmission to the tendering procedure .

20 It is for the ICDCS to decide whether to exclude the applicant from or to readmit it to the tendering procedure for the contract in question . Pursuant to the General Conditions and to Article 238 of the Third ACP-EEC Convention, decisions by the authorities of ACP countries may be challenged by a tenderer by means of arbitration, a procedure to which the applicant has already had recourse .

21 It follows that the applicant has not established that the measures applied for are necessary in order to avoid serious and irreparable damage or that they are apt to produce such a result . The application for interim measures must therefore be dismissed .

On those grounds,

THE PRESIDENT

hereby orders as follows :

( 1 ) The application for interim measures is dismissed .

( 2 ) Costs are reserved .

Luxembourg, 25 October 1990 .