The CFI has refused to grant interim measures to an applicant seeking an annulment of a public procurement decision of the European Council. The case relates to a decision by the EU Police Mission in Afghanistan (established by the European Council) to renew a contract for the provision of security services. The applicant, a failed tenderer, was challenging the award of a contract to the incumbent bidder, alleging that there had been unlawful contact between EUPOL Afghanistan and the winning bidder during the procurement procedure.
In its ruling the CFI concluded that the applicant had failed to establish it would suffer serious and irreparable harm in the absence of interim measures being granted. The CFI noted that the chance of not being awarded a contract, an inherent risk in any procurement procedure, meant that a loss of an opportunity to be awarded and to perform a public contract could not, in itself, be regarded as constituting serious damage. To succeed in obtaining interim measures the Court pointed out that an applicant would need to adduce evidence that it would suffer sufficiently material damage. Further, where an applicant's loss of opportunity could be adequately compensated by damages, the applicant would need to show that it would be placed in a position which could endanger its very existence or irretrievably alter its position in the market.