C-87/94

COMMISSION v BELGIUM

ORDER OF THE PRESIDENT OF THE COURT

22 April 1994 *

In Case C-87/94 R,

Commission of the European Communities, represented by Hendrik van Lier, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

ORDER OF 22. 4. 1994 — CASE C-87/94 R

THE PRESIDENT OF THE COURT

makes the following

Order

The dispute

A — Procedure

COMMISSION v BELGIUM

L 297, p. 1), and to comply with the principle of equal treatment, which governs all procedures for the award of public contracts.

2 By a separate document, lodged at the Court Registry on the same date, the appli­ cant made an application for interim measures, pursuant to Article 186 of the Treaty, Article 36 of the Protocol on the Statute of the Court of Justice and Art­ icle 83 of the Rules of Procedure of the Court of Justice, in which it sought an order requiring the Kingdom of Belgium to adopt all necessary measures to sus­ pend the legal consequences of SRWT's decision of 6 October 1993 awarding the contract, together with all necessary measures to suspend the legal consequences of the contractual links established between SRWT and the company to which the contract was awarded, namely Espace Mobile International SA (hereinafter 'EMI'), pending the Court's final ruling in the main proceedings.

3 The Kingdom of Belgium lodged its written observations on 30 March 1994. The parties were given the opportunity to submit their oral observations on 14 April 1994.

B — Background

4 SRWT, which is based in Namur (Belgium), put out an invitation to tender with a view to awarding a public contract for the supply, over a period of three years, of eight lots of public transport buses, comprising 307 standard vehicles, for the esti­ mated sum of BFR 2 022 918 000 (excluding VAT). A contract notice was pub­ lished in the Official Journal of the European Communities on 22 April 1993.

8 In those memoranda, EMI amplified its observations, particularly with regard to the following items in its tender:

— memorandum of 3 August: quantity discount; offer of financing; waiver of the price-variation clause with respect to buses ready for delivery during the course of 1994; fuel consumption rates of the vehicles; data required for the evalua­ tion, both quantifiable and non-quantifiable, of the technical quality of the vehicles offered;

— memorandum of 23 August: estimated number of replacement engines and gear-boxes;

— memorandum of 24 August: fuel consumption rates.

9 On 31 August 1993 the contracting authority circulated an internal memorandum which concluded, following an analysis of the three additional memoranda, that they contained amendments to the original tender. It accordingly confirmed that the proposals regarding the award of the lots, set out in the abovementioned mem­ orandum prepared for the Board meeting of 2 September 1993, were justified.

10 On 2 September 1993 the Board of Directors of SRWT took the view that they did not have sufficient information at their disposal to take a final decision and resolved to continue the discussion at a later meeting.

15 On the same day, Van Hool applied to the Belgian Conseil d'Etat for an order sus­ pending the operation of the decision in question under the emergency procedure.

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ORDER OF 22. 4. 1994 — CASE C-87/94 R

16 By judgment of 7 October 1993, the President of the Sixième Chambre des Référés (Sixth Chamber hearing applications for interim measures) of the Conseil d'Etat ordered provisional suspension of the enforcement of the decision taken on 6 October 1993 by the Board of Directors of SRWT.

17 However, by judgment of 17 December 1993, the Conseil d'Etat failed to confirm that order and dismissed the applications for suspension and for the adoption of interim measures lodged by Van Hool.

18 By letter of the same date, SRWT notified EMI of the order for Lots Nos 2 to 6.

Grounds

23 According to Article 186 of the Treaty:

'The Court of Justice may in any cases before it prescribe any necessary interim measures.'

24 Pursuant to Article 83(2) of the Rules of Procedure, an order for interim measures is conditional upon the existence of circumstances giving rise to urgency and of pleas of fact and law establishing a prima facie case for granting the relief sought. As the Court has consistently held, it also presupposes that the balance of the interests at stake is conducive to granting such relief.

25 Those conditions are cumulative.

26 The urgency of the application 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 measure.

30 According to the Kingdom of Belgium, the condition of urgency is not satisfied where the applicant has been too slow in taking action, or has itself brought about the urgent situation which it seeks to rely upon. That is so in the case of the Com­ mission, which waited for more than five months after the decision awarding the contract was taken before initiating these proceedings. In an action against a Mem­ ber State for failure to fulfil its obligations, the Commission should, in order to substantiate the existence of serious and irreparable damage, also demonstrate the existence of a special requirement necessitating the adoption of interim measures, such as the need to prevent a breach of Community law before the decision award­ ing the contract is taken; it cannot confine itself to the general allegation that it has sustained damage in its capacity as guardian of the Treaties, an allegation that falls to be made whenever Community law is infringed by a Member State.

31 It should be noted that failure to comply with a directive applicable to a public contract constitutes a serious threat to the legality of the Community order and that the ensuing declaration by the Court on the basis of Article 169 of the Treaty — usually after the contract has been performed — to the effect that the Member State in question has failed to fulfil its obligations, cannot reverse the damage suf­ fered by the Community legal order and by all the tenderers who were either rejected or deprived of the opportunity to compete effectively in compliance with the principle of equal treatment. The Commission, in its capacity as guardian of the Treaties, may therefore bring proceedings for the adoption of interim measures in parallel with an action against a Member State for failure to fulfil its obligations, in connection with a disputed procedure for the award of a public contract.

impose an obligation to ensure at national level that decisions which have infringed Community law with respect to the award of public contracts or national rules implementing Community law are reviewed effectively and as rapidly as possible; in the present case, Van Hool sought such redress before the Belgian Conseil d'Etat but failed ultimately to secure the suspension applied for.

33 As the Belgian Government has emphasized in the proceedings before the Court, both the travaux préparatoires and the actual provisions of those directives reveal that the Community legislature, aware of the differences between national laws and mindful of the need not to undermine in any way the principle of legal cer­ tainty, at first gave precedence to review before conclusion of the contract. In deciding that the consequences of review for a contract which has already been concluded are determined by national law, and by permitting Member States to limit those consequences to the award of damages to the injured party, the Com­ munity legislature acknowledged that a State may refuse at national level to set aside a contract which has already taken effect.

34 In those circumstances, the Commission itself must act at Community level as far as possible before the contract is concluded, or at least inform the Member State concerned, quickly and unambiguously, that it is in the process of reviewing pos­ sible infringements of the rules applicable to the contract in issue, and that it intends to seek the suspension either of the procedure for awarding the contract or of the contract entered into. That being so, the Member State may proceed with the award of the contract or with its performance, at its own risk.

38 After stating in its application in the main action that a complaint from Van Hool had first been laid before it on 6 October 1993, the Commission pointed out orally on 14 April 1994, then in writing on 15 April, that in fact it had been apprized of the matter by letter of 29 October 1993, as recorded in the case-file. In any event, the Commission evinced the intention of seeking the suspension of the contract only in its reasoned opinion of 8 February 1994, that is to say, more than three months after receiving the letter of 29 October 1993 and more than two months after sending its letter of formal notice of 30 November 1993, which did not con­ tain any reference to that point. Therefore, the Commission failed to act in such a way as to make the contracting authority aware as early as possible that it could proceed only at its own risk with the performance of a contract which had been concluded with exceptional speed on the same day — 17 November 1993 — as the decision of the Belgian Conseil d'Etat. Yet, in its complaint of 29 October 1993, Van Hool had stressed in alarmist terms the urgent need for action by the Com­ mission. In those circumstances, the Commission has not displayed the diligence to be expected of a party which has subsequently lodged an application for interim measures.

39 On the question of the balance of interests, the Kingdom of Belgium disputes the Commission's allegation of serious and irreparable damage by referring to the state of SRWT's bus fleet. That fleet contains numerous old vehicles, in particular 194

40 The defendant's submissions regarding the state of the buses to be replaced are supported by the documents produced. Their condition effectively undermines the safety requirements which should govern all public utilities. However, the defen­ dant has itself contributed significantly to the creation of this state of affairs. While, according to its own recommendations, the normal length of service for the buses to be replaced should have been from ten to twelve years, it did not consider it necessary to ensure the timely replacement of the vehicles, a large number of which have now been in use for 16 to 18 years. What is more, it allowed more than two years to elapse between a request for the replacement of 103 buses whose state of dilapidation was emphasized by the local management concerned, and the pub­ lication of the contract notice on 22 April 1993. Thus the Kingdom of Belgium has omitted to ensure that all appropriate measures were taken to avoid endangering the safety of SRWT's customers and staff, as well as that of other road-users.

41 In principle, such an omission is likely to prevent the balance of interests from tilt­ ing in favour of the party in default (see the order of the President of the Court in Case 194/88 R Commission v Italy [1988] ECR 5647, at paragraph 16). However, in the circumstances of the present case and in view of the seriousness of the risk involved, it is likewise incumbent on the Court not to exacerbate that risk.

42 In the light of the foregoing it is clear that the Commission has failed to display the diligence required of a party relying on the urgency of interim measures, and that the balance of interests tilts in favour of the Kingdom of Belgium.

1) The application for interim measures is dismissed.

2) Costs are reserved.

Luxembourg, 22 April 1994.

R. Grass O. Due Registrar President

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