| | CFIR-104 (Rules of Procedure)Application for interim measures    
| CFI (Rules of Procedure) | Article 104.1 | 1. An application to suspend the operation of any measure adopted by an institution, made pursuant to Article 242 of the EC Treaty and Article 157 of the EAEC Treaty, shall be admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. An application for the adoption of any other interim measure referred to in Article 243 of the EC Treaty and Article 158 of the EAEC Treaty shall be admissible only if it is made by a party to a case before the Court of First Instance and relates to that case.
2. An application of a kind referred to in paragraph 1 of this Article shall 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 measures applied for.
3. The application shall be made by a separate document and in accordance with the provisions of Articles 43 and 44. |
| Case | Pte | Ref | Text | T-511/08-R
Unity | 11-12 | CFIR-104.2 | 11 Article 104(2) of the Rules of Procedure provides that an application for interim measures must 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 measures applied for. Thus, suspension of the operation of an act or interim measures may be ordered 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 it must, in order to avoid serious and irreparable harm to the applicant’s interests, be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the President of the Court in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30).
12 In addition, in the context of that overall examination, the judge hearing the application enjoys 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 Community law imposing a preestablished scheme of analysis within which the need to order interim measures must be assessed (orders of the President of the Court in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 23, and of 3 April Page 2 of 6 http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79909876T19... 14/03/2009 2007 in Case C-459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 2 | T-202/08-R
Centre de langues | 17-18 | CFIR-104.2 | 17 L’article 104, paragraphe 2, du règlement de procédure dispose que les demandes de mesures provisoires doivent spécifier l’objet du litige, les circonstances établissant l’urgence, ainsi que les moyens de fait et de droit justifiant à première vue (fumus boni juris) l’octroi de la mesure provisoire à laquelle elles concluent. Ces conditions sont cumulatives, de sorte que les demandes de mesures provisoires doivent être rejetées dès lors que l’une d’elles fait défaut [ordonnance du président de la Cour du 14 octobre 1996, SCK et FNK/Commission, C-268/96 P(R), Rec. p. I-4971, point 30].
18 En outre, dans le cadre de cet examen d’ensemble, le juge des référés dispose d’un large pouvoir d’appréciation et reste libre de déterminer, au regard des particularités de l’espèce, la manière dont ces différentes conditions doivent être vérifiées ainsi que l’ordre de cet examen, dès lors qu’aucune règle de droit communautaire ne lui impose un schéma d’analyse préétabli pour apprécier la nécessité de statuer provisoirement [ordonnances du président de la Cour du 19 juillet 1995, Commission/Atlantic Container Line e.a., C-149/95 P(R), Rec. p. I-2165, point 23, et du 3 avril 2007, Vischim/Commission, C-459/06 P(R), non publiée au Recueil, point 25]. | T-195/08-R
Antwerpse Bouwwerken | 18-19 | CFIR-104.2 | 18 L’article 104, paragraphe 2, du règlement de procédure dispose que les demandes de mesures provisoires doivent spécifier l’objet du litige, les circonstances établissant l’urgence, ainsi que les moyens de fait et de droit justifiant à première vue (fumus boni juris) l’octroi de la mesure provisoire à laquelle elles concluent. Ces conditions sont cumulatives, de sorte que les demandes de mesures provisoires doivent être rejetées dès lors que l’une d’elles fait défaut [ordonnance du président de la Cour du 14 octobre 1996, SCK et FNK/Commission, C-268/96 P(R), Rec. p. I-4971, point 30].
19 En outre, dans le cadre de cet examen d’ensemble, le juge des référés dispose d’un large pouvoir d’appréciation et reste libre de déterminer, au regard des particularités de l’espèce, la manière dont ces différentes conditions doivent être vérifiées ainsi que l’ordre de cet examen, dès lors qu’aucune règle de droit communautaire ne lui impose un schéma d’analyse préétabli pour apprécier la nécessité de statuer provisoirement [ordonnances du président de la Cour du 19 juillet 1995, Commission/Atlantic Container Line e.a., C-149/95 P(R), Rec. p. I-2165, point 23, et du 3 avril 2007, Vischim/Commission, C-459/06 P(R), non publiée au Recueil, point 25]. | T-185/08-R
VDH | 4-6 | CFIR-104.1 | 4 Nach Art. 104 § 1 der Verfahrensordnung des Gerichts ist ein Antrag auf Erlass einstweiliger Anordnungen nur zulässig, wenn er von einer Partei eines beim Gericht anhängigen Rechtsstreits gestellt wird und sich auf diesen bezieht. Einem Antrag auf einstweilige Anordnungen kann daher nicht stattgegeben werden, wenn die Klage, mit der dieser Antrag zusammenhängt, unzulässig ist (Beschluss des Präsidenten des Gerichtshofs vom 16. Juli 1993, AEFMA/Kommission, C-107/93 R, Slg. 1993, I-4177, Randnr. 4).
5 Im vorliegenden Fall hat das Gericht (Zweite Kammer) durch Beschluss vom 25. Juni 2008 die von den Antragstellerinnen erhobene Untätigkeitsklage als offensichtlich unzulässig abgewiesen.
6 Der Antrag auf Gewährung einstweiligen Rechtsschutzes ist daher als unzulässig zurückzuweisen. | T-54/08-R
T-87/08-R
T-88/08-R
T91/08-R
T-92/08-R
T-93/08-R
Cyprus | 21-22 | CFIR-104.2 | 21 L’article 104, paragraphe 2, du règlement de procédure dispose que les demandes de mesures provisoires doivent spécifier l’objet du litige, les circonstances établissant l’urgence ainsi que les moyens de fait et de droit justifiant à première vue (fumus boni juris) l’octroi de la mesure provisoire à laquelle elles concluent. Ainsi, le sursis à exécution et les mesures provisoires peuvent être accordés par le juge des référés s’il est établi que leur octroi est justifié à première vue en fait et en droit (fumus boni juris) et qu’ils sont urgents en ce sens qu’il est nécessaire, pour éviter un préjudice grave et irréparable aux intérêts du requérant, qu’ils soient édictés et sortent leurs effets dès avant la décision au principal. Ces conditions sont cumulatives, de sorte que les demandes de mesures provisoires doivent être rejetées dès lors que l’une d’elles fait défaut [ordonnance du président de la Cour du 14 octobre 1996, SCK et FNK/Commission, C-268/96 P(R), Rec. p. I-4971, point 30]. Le juge des référés procède également, le cas échéant, à la mise en balance des intérêts en présence (voir ordonnance du président de la Cour du 23 février 2001, Autriche/Conseil, C-445/00 R, Rec. p. I-1461, point 73, et la jurisprudence citée).
22 En outre, dans le cadre de cet examen d’ensemble, le juge des référés dispose d’un large pouvoir d’appréciation et reste libre de déterminer, au regard des particularités de l’espèce, la manière dont ces différentes conditions doivent être vérifiées ainsi que l’ordre de cet examen, dès lors qu’aucune règle de droit communautaire ne lui impose un schéma d’analyse préétabli pour apprécier la nécessité de statuer provisoirement [ordonnances du président de la Cour du 19 juillet 1995, Commission/Atlantic Container Line e.a., C-149/95 P(R), Rec. p. I-2165, point 23, et du 3 avril 2007, Vischim/Commission, C-459/06 P(R), non publiée au Recueil, point 25]. | T-41/08-R
Vakakis International | 23-26 | CFIR-104.2 | 23 Article 104(2) of the Rules of Procedure of the Court of First Instance provides that applications for interim relief must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the relief applied for. Those conditions are cumulative, so that an application for such relief must be dismissed if one of them is not fulfilled (order of the President of the Court of Justice in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30, and order of the President of the Court of First Instance in Case T-350/00 R Free Trade Foods v Commission [2001] ECR II-493, paragraph 32). The Court hearing the application must also, where appropriate, weigh up the competing interests (order of the President of the Court of Justice in Case C-445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).
24 In addition, in the context of that overall examination, the judge hearing the application has a wide 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 Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be analysed and assessed (order of the President of the Court of Justice in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 23, and order of the President of the Court of Justice of 3 April 2007 in Case C-459/06 P (R) Vischim v Commission, not published in the ECR, paragraph 25).
25 Furthermore, in the context of that overall examination, the court dealing with the application must exercise the broad discretion enjoyed by it to determine the manner in which those various conditions are to be examined in the light of the specific circumstances of each case (order of the President of the Court of Justice in Case C-393/96 P(R) Antonissen v Commission and Council [1997] ECR I-441, paragraph 28).
26 The relief sought must additionally be provisional inasmuch as it must not prejudge the points of law or fact in issue or invalidate in advance the effects of the decision subsequently to be given in the main action (order in Commission v Atlantic Container Line and Others, paragraph 22). | T-41/08-R
Vakakis International | 33-39 | ECT-230
CFIR-104.1 | 33 By virtue of the first subparagraph of Article 104(1) of the Rules of Procedure, an application to suspend the operation of any measure is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. This rule requires that the main action from which the application for interim measures is derived may be effectively examined by the Court of First Instance.
34 According to settled case-law the issue of the admissibility of the main application should not, in principle, be examined in proceedings relating to an application for interim measures. Where, however, as in this case, it is contended that the main application from which the application for interim measures is derived is manifestly inadmissible, it may prove necessary to establish the existence of certain factors which would justify the prima facie conclusion that the main application is admissible (orders of the President of the Court of Justice in Case 221/86 R Groupe des droites européennes and Front national v Parliament [1986] ECR 2969, paragraph 19, and in Case 376/87 R Distrivet v Council [1988] ECR 209, paragraph 21; order of the President of the Court of First Instance in Case T-222/99 R Martinez and de Gaulle v Parliament [1999] ECR II-3397, paragraph 60).
35 In this case, the President of the Court considers that, based on the observations of the Commission, it is necessary to ascertain whether the application for annulment is likewise manifestly inadmissible.
36 The fourth paragraph of Article 230 EC provides that any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
37 The applicant is seeking annulment of decisions which are either directly addressed to it, or are addressed to it in its role as member and representative of a consortium, whose membership is identifiable in a closed class of seven undertakings.
38 Without prejudice to whether each of the two decisions in question constitutes a challengeable act for the purposes of Article 230 EC, therefore, such decisions, which, together, have the effect of excluding Vakakis and the other six members of the consortium from the disputed tender procedure, are prima facie liable to be of direct and individual concern to Vakakis.
39 Accordingly, the President finds that, as far as the locus standi of the applicant is concerned, prima facie the application for annulment is not manifestly inadmissible and that Vakakis must accordingly be allowed to bring the present proceedings for interim measures before this Court. | T-41/08-R
Vakakis International | 40-46 | CFIR-104 | 40 It should be noted that the applicant in its application makes references in a general manner to its pleadings in the main proceedings.
41 Since failure to comply with the Rules of Procedure constitutes an absolute bar to proceedings, it is necessary for the President to consider of his own motion whether the relevant provisions of those Rules have been complied with.
42 Article 104(2) of the Rules of Procedure provides that applications for interim measures must state the pleas of fact and law establishing a prima facie case for the interim measures applied for.
43 Article 104(3) of the Rules of Procedure states that the application for interim relief is to be made by a separate document and in accordance with the provisions of Articles 43 and 44 of those Rules.
44 It follows, on reading those provisions of Article 104 of the Rules of Procedure together, that an application for interim relief must be sufficient in itself to enable the defendant to prepare its observations and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out in a coherent and comprehensible fashion in the application for interim relief itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if it is annexed to the application for interim relief, cannot make up for the absence of essential elements in that application (see, for example, order of the President of the Court of First Instance in Case T-306/01 R Aden and Others v Council and Commission [2002] ECR II-2387, paragraph 52).
45 As the President of the Court ruled in the order in Case T-236/00 R Stauner and Others v Parliament and Commission [2001] ECR II-15, where some of the grounds contained in the application for interim relief and in the observations submitted in response are not set out in a manner consistent with the requirements of the abovementioned provisions of the Rules of Procedure, those grounds cannot be taken into consideration in order to establish the points of fact and law to which they relate.
46 In the present case, therefore, a decision will be made taking account solely of the arguments put forward by the parties in the pleadings which they have lodged in the proceedings for interim relief, as supported and supplemented on specific points by references to particular, identified, passages in documents which are annexed to them. | T-114/06-R
Globe SA | 26-28 | CFIR-104.2 | 26. Article 104(2) of the Rules of Procedure of the Court of First Instance provides that applications for interim measures must specify the subject matter of the dispute, the circumstances giving rise to urgency as well as the pleas of fact and law prima facie justifying the grant of the provisional measure sought (fumus boni juris). Those conditions are cumulative so that an application for interim measures must be rejected if one of them is absent (order of the President of the Court in Case C268/96 P(R) SCK and FNK v Commission [1996] ECR I4971, paragraph 30). In an appropriate case the President has also to weigh up the interests at stake (order of the President of the Court in Case C445/00 R Austria v Council [2001] ECR I1461, paragraph 73 and the case-law cited therein).
27. Moreover, in the context of that overall examination, the President enjoys a wide margin of discretion and remains free to determine, in light of the particular features of the case, the way in which those different conditions have to be verified and the order of priority of that examination since there is no rule of Community law imposing on him a predetermined analytical model for assessing the need for an interim decision (order of the President in Case C149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I2165, paragraph 23).
28. The present application for interim measures must be considered in the light of the principles set out above. | T-437/05-R
Brink's Security | 24-25 | CFIR-104.2 | 24 L’article 104, paragraphe 2, du règlement de procédure dispose que les demandes de mesures provisoires doivent spécifier l’objet du litige, les circonstances établissant l’urgence ainsi que les moyens de fait et de droit justifiant à première vue (fumus boni juris) l’octroi de la mesure provisoire à laquelle elles concluent. Ces conditions sont cumulatives, de sorte que les mesures provisoires doivent être rejetées dès lors que l’une d’elles fait défaut [ordonnance du président de la Cour du 14 octobre 1996, SCK et FNK/Commission, C-268/96 P(R), Rec. p. I-4971, point 30]. Le juge des référés procède également, le cas échéant, à la mise en balance des intérêts en présence (ordonnance du président de la Cour du 23 février 2001, Autriche/Conseil, C-445/00 R, Rec. p. I-1461, point 73).
25 En outre, dans le cadre de cet examen, le juge des référés dispose d’un large pouvoir d’appréciation et reste libre de déterminer, au regard des particularités de l’espèce, la manière dont ces différentes conditions doivent être vérifiées ainsi que l’ordre de cet examen, dès lors qu’aucune règle de droit communautaire ne lui impose un schéma d’analyse préétabli pour apprécier la nécessité de statuer provisoirement [ordonnance du président de la Cour du 19 juillet 1995, Commission/Atlantic Container Line e.a., C-149/95 P(R), Rec. p. I-2165, point 23]. | T-195/05-R
Deloitte | 25-26 | CFIR-104.2 | 25. Article 104(2) of the Rules of Procedure provides that applications for interim measures must 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 measures applied for. Those conditions are cumulative so that an application for interim measures must be rejected if one of them is absent (order of the President of the Court of Justice in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). In an appropriate case, the President has also to weigh up the interests at stake (order of the President of the Court of Justice in Case C-445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).
26. Moreover, in the context of that overall examination the judge hearing the application enjoys a wide margin of discretion and remains free to determine, in the light of the particular features of the case, the way in which those different conditions have to be verified and the order of priority of that examination since there is no rule of Community law imposing on him a predetermined analytical model for assessing the need for an interim decision (order of the President of the Court of Justice in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 23). | T-447/04-R
Capgemini | 82+87-88 | Q4-89.1-impl
CFIR-104.2 | 82. In those circumstances, it must be considered, prima facie, that the Commission disregarded the technical specification and committed a manifest error of assessment by accepting the absence of any indication of a price or the indication of a zero price for certain items of Steria/HP'S offer, even though it cannot be precluded that the latter's offer ought to have been rejected because it did not observe the conditions of the call for tenders.
....
87. Consequently, it cannot be precluded that the interpretation of the technical specifications put forward by the applicant is correct and that, accordingly, Steria/HP's bid contravened the technical specifications in the call for tenders.
88. In light of the foregoing it must be concluded that the condition relating to a prima facie case is satisfied. | T-447/04-R
Capgemini | 89 | CFIR-104.2 | 89. As was held in the order of the President of the Court in Case C65/99 P(R) Willeme v Commission [1999] ECR I-1857, the purpose of interim proceedings is not to secure reparation of damage but to guarantee the full effectiveness of the judgment on the substance. In order that the latter objective may be attained, the measures sought must be urgent in the sense that, in order to avoid serious and irreparable damage to the applicant's interests, they must be ordered and become effective even before the decision in the main proceedings (paragraph 62). It is for the party applying for interim measures to adduce proof that it cannot await the outcome of the main action without suffering serious and irreparable damage (order of the President of the Court of First Instance in Case T-169/00 R Esedra v Commission [2000] ECR II-2951, paragraph 43).
| T-447/04-R
Capgemini | 90-93 | CFIR-104.2
| 90. In the present case the applicant maintains that the damage suffered owing to the fact that the contract at issue was not awarded to it is of an irreparable nature, inasmuch as annulment of the decision of 13 September 2004 and the decision of 22 October 2004 would, in the absence of any interim measure, produce no useful effect.
91. That argument cannot be upheld.
92. First of all, on the supposition that the Court of First Instance annuls those decisions it is in no way established, contrary to the applicant's assertions, that the contract would be awarded to it. In that regard, just as the successful bidder, the applicant proposed a zero price for an item of the project, namely item 8. Accordingly, the applicant's bid is prima facie affected by a lacuna analogous to the lacunae affecting the successful tenderer's bid.
93. Next, there is no warrant for concluding that, as is maintained by the applicant, its interests would not be adequately protected in the event of annulment by the Court of First Instance of the decision of 13 September 2004 and the decision of 22 October 2004. | T-447/04-R
Capgemini | 94-97 | ECT-233
CFIR-104.2 | 94. It must first be noted that it is not correct to assert that compensation constitutes the sole means of compliance with an annulment judgment.
95. Under Article 233 EC it is the institution whose act has been declared void which is required to take the measures necessary for compliance with the judgment of the Court of First Instance. It follows, first, that the court annulling an act has no jurisdiction to direct the institution whose act it has annulled as to the manner in which a judgment is to be complied with (order of the Court of Justice of 26 October 1995 in Joined Cases C-199/94 P and C-200/94 P Pevasa and Inpesca v Commission [1995] ECR I-3709, paragraph 24). Secondly, the judge hearing the interim application cannot prejudge the measures which might be adopted following a judgment annulling an act. The manner in which a judgment annulling an act may be complied with depends not only on the provision annulled and the scope of the judgment in question, which must be appraised by reference to the grounds thereof (Joined Cases 97/86, 193/86, 99/86 and 215/86 Asteris and Others v Commission [1988] ECR I-2181, paragraph 27, and Joined Cases T305/94, T-306/94, T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraph 184), but also on other factors specific to each case such as the period within which the annulment of the contested act comes into effect or the interests of third parties concerned.
96. In the present case in the event of annulment of the decision of 13 September 2004 and of the decision of 22 October 2004, it would be for the Commission, in light of the specific circumstances of this case, to adopt the necessary measures for ensuring appropriate protection of the applicant's interests (order of the President of the Court of First Instance in Case T-108/94 R Candiotte v Council [1994] ECR II-249, paragraph 27; and orders in Esedra v C ommission, paragraph 51, and TQ3 Travel Solutions Belgium v Commission, paragraph 55).
97. In that context it is important to emphasise the fact that the applicant brought its main application and its application for interim measures after the conclusion of the contract at issue and that therefore the application for interim measures did not enable the President of the Court of First Instance to prevent signature of the contract, whereas the applicant could have brought an action for annulment of the decision of 13 September 2004, at the same time as an application for interim measures, within the period of three weeks which elapsed between the date on which the Commission communicated to it the evaluation report (30 September 2004) and the date of signature of the contract (22 October 2004). It is none the less pointed out, first, that the stay ordered by way of a protective measure by the President (see paragraph 15 above) had the effect of suspending the operation of the contract at issue. Second, the Court of First Instance agreed to adjudication of the main action under the expedited procedure (see paragraph 18 above). Consequently, judgment will be given within a short period of time (see, in regard to an analogous situation, the judgment in Case T-211/02 Tideland Signal v Commission [2002] ECR II-3781). In those circumstances it can in no way be precluded that the Commission may be directed to bring the contract at issue to an end and to organise a fresh procedure for the award of the public contract at issue in which the applicant could take part. | T-447/04-R
Capgemini | 98-100 | ECT-288
CFIR-104.2 | 98. It must be noted, second, that even if the Commission decided to make a payment of damages in reparation of the loss suffered by the applicant, such manner of compliance with any annulment judgment could, under settled case-law, be regarded as constituting adequate reparation. Consequently, the potential loss suffered by the applicant cannot be regarded as irreparable once it can be the subject of subsequent financial compensation (see order in Esedra v Commission , paragraph 44 and case-law cited; and order in TQ3 Travel Solutions Belgium v Commission , paragraph 43).
99. In any event, even in the absence of voluntary reparation on the part of the Commission, it cannot but be noted that the applicant could, in the absence of indications to the contrary, bring an action for damages before the Court of First Instance, given that loss of a contract is a loss in respect of which financial reparation may be afforded by way of an action under Article 288 EC (order in Esedra v C ommission, paragraph 47; order of the President of the Court of First Instance in Case T-132/01 R Euroalliages and Others v Commission [2002] ECR II-777, paragraphs 51 to 53; and order in TQ3 Travel Solutions Belgium v Commission, cited above, paragraph 45).
100. In light of those considerations it cannot but be noted that the situation giving rise to the present dispute is fundamentally different to that in Commission v Belgium on which the applicant places reliance. Contrary to the finding in that case, it cannot be concluded in this case that a decision on the substance, even if made during the course of performance of the contract, would be unable to afford reparation of the damage to both the Community legal order and the applicant. | T-447/04-R
Capgemini | 101-104 | CFIR-104.2 | 101. In light of the foregoing the interim measures sought would therefore be justified only in exceptional circumstances, that is to say if it appeared that, in the absence of such measures, the applicant would be in a situation likely to jeopardise its very existence or irremediably alter its position in the market (see, to that effect, orders in Esedra v Commission, paragraph 45, and TQ3 Travel Solutions Belgium v Commission, paragraph 46).
102. In that regard it cannot but be noted that, whilst the applicant maintains that the award to it of the contract at issue would be beneficial, it is not maintaining that the decisions of 13 September 2004 and 22 October 2004 entail financial consequences such as to jeopardise its very existence. In fact, the applicant has in no way argued to that effect and has adduced no item of evidence concerning its financial situation which might lead the President to conclude that its existence was imperilled.
103. The only actual effects which the applicant associates with execution of the decision of 13 September 2004 and with the decision of 22 October 2004 are the loss of a major reference and the alleged difficulty of usefully tendering in the future in the context of projects connected with the contract at issue. To the extent to which those effects may be regarded as seeking to establish the irreparable nature of the alleged damage, the evidence in the case-file none the less does not permit an appraisal of their actual impact on the applicant's situation. In particular, the applicant has not demonstrated that that reference was essential to it or that it would be prevented in the future from accomplishing other projects of the same scale. Nor, moreover, has it adduced evidence from which it might be concluded that serious and irreparable damage has been done to its reputation or, a fortiori, that such damage prevents it from taking part in future calls for tenders by the Commission in connection with the SIS II and VIS systems. In that context, it should be added that, in any event, participation in a public call for tender procedure, which is by its nature highly competitive, necessarily entails risks for all the participants and the elimination of a tenderer under the tender rules is not in itself in any way prejudicial and cannot therefore, as a matter of principle, be regarded as damaging its reputation (see, in that connection, order of the President of the Court in Case 118/83 R CMC v Commission [1983] ECR 2583, paragraph 51, and the order in Esedra v Commission, paragraph 48).
104. In those circumstances it must be concluded that the evidence adduced by the applicant does not enable it to be established to the requisite legal standard that, failing the grant of the interim measures sought, the applicant would suffer serious and irreparable damage. 105. In light of the foregoing, it must be concluded that the condition relating to urgency is not satisfied and that therefore the application for interim measures must be rejected. | T-303/04-R2
European Dynamics | 29-31 | CFIR-104.2 | 29. Article 104(2) of the Rules of Procedure prescribes that applications for interim measures must 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 measures applied for. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the President of the Court of Justice of 14 October 1996 in Case C268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). The judge hearing an application for interim measures must also, where appropriate, balance the interests concerned (order of the President of the Court of Justice of 29 June 1999 in Case C107/99 R Italy v Commission [1999] ECR I4011, paragraph 59).
30. The measures sought must also be provisional, in that they must not prejudge the points of law or fact at issue or neutralise in advance the effects of the decision subsequently to be given in the main action (order of the President of the Court of Justice of 19 July 1995 in Case C149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I2165, paragraph 22).
31. Moreover, in the context of that overall examination, the judge hearing the application enjoys 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 Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order in Atlantic Container Line , paragraph 23). | T-303/04-R1
European Dynamics | 41-43 | CFIR-104.2 | 41. Article 104(2) of the Rules of Procedure prescribes that applications for interim measures must 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 measures applied for. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the President of the Court of Justice in Case C268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). The judge hearing an application for interim measures must also, where appropriate, balance the interests concerned (order of the President of the Court of Justice in Case C107/99 R Italy v Commission [1999] ECR I401 1, paragraph 59).
42. The measures sought must also be provisional, in that they must not prejudge the points of law or fact at issue or neutralise in advance the effects of the decision subsequently to be given in the main action (order of the President of the Court of Justice in Case C149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I2165, paragraph 22).
43. Moreover, in the context of that overall examination, the judge hearing the application enjoys 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 Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order in Atlantic Container Line , paragraph 23). | T-303/04-R1
European Dynamics | 63-64 | CFIR-104.2 | 63. It is settled case-law that the conditions laid down in Article 104(2) of the Rules of Procedure require that the essential elements of fact and law on which an application is founded are set out in a coherent and comprehensible fashion in the application for interim measures itself (orders of the President of the Court in Case T175/03 R Schmitt v EAR [2003] ECRSC IA175 and II883, paragraph 18; Case T236/00 R Stauner and Others v Parliament and Commission [2001] ECR II-15, paragraph 34; and Case T-306/01 R Aden and Others v Council and Commission [2002] ECR II2387, paragraph 52).
64. Even though, as the Commission rightly points out, the application contains few elements to enable the judge hearing the application to examine whether there is a prima facie case for granting the measures sought, the Commission's observations and the second round of observations of the parties have shed light on the subject-matter of the application in such a way as to allow the judge to examine it. The condition relating to urgency should be examined first. | T-169/00-R
Esedra | 43-47 | CFIR-104.2 | 43 It is settled case-law that the urgency of an application for interim measures must be assessed in relation to the need for an interim order in order to avoid serious and irreparable damage being caused to the party who requests the interim measure. It is for that party to adduce proof that it cannot await the outcome of the main action without suffering such damage (orders of the President of the Court of First Instance in Case T-73/98 R Prayon-Rupel v Commission [1998] ECR II-2769, paragraph 36, in Joined Cases T-38/99 R to T-42/99 R, T-45/99 R and T-48/99 R Sociedade Agrícola dos Arinhos and Others v Commission [1999] ECR II-2567, paragraph 42, and in Case T-144/99 R IMA v Commission [2000] ECR II-2067, paragraph 42).
44 As regards the pecuniary damage alleged by the applicant, it should be noted that, as the Commission has pointed out, according to settled case-law such damage cannot, in principle, be regarded as irreparable, or even reparable only with difficulty, if it may be the subject of subsequent compensation (orders of the President of the Court of Justice in Case C-213/91 R Abertal and Others v Commission [1991] ECR I-5109, paragraph 24, and in Case T-70/99 R Alpharma v Council [1999] ECR II-2027, paragraph 128).
45 Pursuant to those principles, the requested suspension would be justified, in the circumstances of this case, only if it appeared that, if the measure were not granted, the applicant would find itself in a situation which could jeopardise its very existence or irremediably alter its position in the market.
46 The applicant has not been able to establish that, if the interim measures it has requested are not granted, the loss of the management of the CPE Clovis would jeopardise the day nursery management structure it has set up or, in any event, the applicant's very existence. In that regard, it should be noted that the applicant has referred to several other projects in which it is already involved and which could lead to the establishment of day nurseries with a capacity of over 410 places.
47 It follows that the financial damage alleged by the applicant must be considered to be reparable. The damage constitutes a loss which can be redressed economically by means of the legal remedies provided for by the Treaty, particularly Article 235 EC (order of the President of the Court of First Instance in Case T-230/97 R Comafrica and Dole Fresh Fruit Europe v Commission [1997] ECR II-1589, paragraph 38). | T-169/00-R
Esedra | 48-49 | CFIR-104.2 | 48 As regards the non-pecuniary damage alleged by the applicant, and its argument that interim measures are urgent because of the irreparable damage which would be caused to its reputation and credibility, it should be noted that the refusal will not necessarily cause such damage. Participation in a public tender procedure, by nature highly competitive, necessarily involves risks for all the participants, and the elimination of a tenderer under the rules on tenders is not, in itself, prejudicial (order of the President of the Court of Justice in Case 118/83 R CMC v Commission [1983] ECR 2583, paragraph 51). Furthermore, the applicant was aware of the risk when it decided not to seek renewal of its contract with the Commission, leading the Commission to initiate a new public contract tendering procedure.
49 As for the applicant's argument that references play a decisive role in the award of public contracts, it should be noted, as the Commission has rightly indicated, that it is apparent from Article 32 of Directive 92/50 that references represent merely one of many criteria taken into account in the qualitative selection of service providers. Furthermore, the prejudicial effects which the applicant claims would result if its credibility and reputation were compromised cannot be regarded as an inevitable consequence of the implementation of the award and refusal. The harm which that implementation could cause the applicant is therefore purely hypothetical (order of the President of the Court of First Instance in Case T-322/94 R Union Carbide v Commission [1994] ECR II-1159, paragraph 31). | T-169/00-R
Esedra | 50-52 | CFIR-104.2 | 50 In the same way, as regards the damage which would allegedly be occasioned by the redundancy of its members of staff, the fact that the applicant itself describes this as likely shows that it is hypothetical.
51 Finally, the fact that the performance of the contract concluded with the Centro Studi will already have commenced before judgment is delivered in the main action is not a circumstance establishing urgency. If the Court of First Instance considers the main action well founded, the Commission will have to adopt the measures necessary to ensure appropriate protection of the applicant's interests (order of the President of the Court of First Instance in Case T-108/94 R Candiotte v Council [1994] ECR II-249, paragraph 27). The applicant has not referred to any circumstance which might prevent its interests from being protected, possibly by payment of compensation together with a new tendering procedure.
52 In the circumstances, it must be concluded that the evidence adduced by the applicant has not established to the requisite legal standard that the non-pecuniary damage which it alleges is certain or irreparable and is the direct consequence of the decisions taken by the Commission or of their implementation. | T-169/00-R
Esedra | 53-54 | CFIR-104.2 | 53 It follows from the above that the applicant has not succeeded in proving that it will suffer serious and irreparable damage if the requested interim measures are not granted.
54 Accordingly, the application for interim measures must be dismissed, and it is not necessary to consider whether the other conditions for granting suspension of operation are fulfilled. | T-60/98-R
Ecord | 19+34 | CFIR-104.1 | 19. Article 104(1) of the Rules of Procedure provides that an application to suspend the operation of any measure is to be admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. Paragraph 2 of that Article provides that an application for the adoption of interim measures is to state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The measures applied for must be of a provisional nature in that they must not prejudge the decision on the substance (see, most recently, Case T-86/96 R Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1998] ECR II-0000, paragraph 24).
34. In the absence of any other pleas in fact or in law which would justify prima facie the adoption of the interim measures applied for, the application for interim measures must be dismissed, without there being any need to consider whether the other conditions for the adoption of interim measures have been met in this case. |
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