In Case T‑670/21

ORDER OF THE PRESIDENT
OF THE THIRD CHAMBER OF THE GENERAL COURT

3February 2022(*)

(Removal from the register)

In Case T‑670/21,

NTU International A/S, established in Aalborg (Denmark), represented by E.Kjær-Hansen, lawyer,

applicant,

v

European Commission, represented by M.Ilkova and T.van Noyen, acting as Agents,

defendant,

APPLICATION under Article263 TFEU seeking annulment of the decision of the Commission of 5August 2021 to award the contract for development consultancy services in the procurement ‘EU Support to Sustainable Energy Connectivity in Central Asia (SECCA)’ (reference number: DEVCO/TSE/2020/EA-RP/0010) to another company and to reject the applicant’s tender.

1By application lodged at the Court Registry on 15October 2021, the applicant brought the present proceedings.

2By separate document lodged at the Court Registry on 11November 2021, the applicant brought an application for interim measures under case number T‑670/21R.

3By letter lodged at the Court Registry on 9December 2021, the applicant informed the Court, in accordance with Article125 of the Rules of Procedure of the General Court, that it wished to discontinue the present proceedings and those for interim measures. It requested, pursuant to Article136(2) of the Rules of Procedure, that the defendant be ordered to pay the costs.

4By letter lodged at the Court Registry on 21December 2021, the defendant informed the Court that it did not object to the discontinuance of the present proceedings but that it disagreed with the claim put forward by the applicant in relation to the costs and requested that the General Court order the applicant to pay the costs of the proceedings.

5By order of the President of the General Court of 26January 2022, NTU International v Commission (T‑670/21R, not published, EU:T:2022:29), Case T‑670/21R, concerning the application for interim measures, was removed from the register of the Court and the costs were reserved until the decision of the Court on the substance of the case.

6Article136(1) and (2) of the Rules of Procedure provides that a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party’s observations on the discontinuance. However, at the request of the party who discontinues or withdraws from proceedings, the costs are to be borne by the other party if this appears justified by the conduct of that party.

7The applicant considers that the defendant should be ordered to pay the costs, given that, first, the defendant concluded the contract with the successful tenderer on 14October 2021, although the applicant had pointed out its intention to bring proceedings against the defendant, and, second, the applicant only learned about the fact that the contract had been signed on that date upon receipt of the defendant’s observations on the application for interim measures.

8However, as the defendant rightly points out, in the present case, having respected the standstill period provided for in Article178(1) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No1296/2013, (EU) No1301/2013, (EU) No1303/2013, (EU)No1304/2013, (EU) No1309/2013, (EU) No1316/2013, (EU)No223/2014, (EU) No283/2014, and Decision No541/2014/EU and repealing Regulation (EU, Euratom) No966/2012 (OJ 2018 L193, p.1), it was under no legal obligation to further suspend the signature of the contract. This also applies in a case where an unsuccessful tenderer had announced its intention to bring proceedings against the award decision before the General Court.

9Moreover, as such, the fact that the defendant has signed the contract with the successful tenderer does not deprive the action for annulment of the award decision of its purpose nor call into question the applicant’s legal interest in bringing proceedings (judgment of 25March 2015, Evropaïki Dynamiki v EASA, T‑297/09, not published, EU:T:2015:184, paragraph43 and the case-law cited). The precise point in time at which the applicant learned about that signature is, therefore, immaterial.

10It follows that, in the present case, there was no conduct on the part of the defendant such as to justify ordering the latter to pay the costs.

11The case shall therefore be removed from the register and the applicant ordered to pay the costs, including those relating to the proceedings for interim measures.

On those grounds,

THE PRESIDENT OF THE THIRD CHAMBER OF THE GENERAL COURT

hereby orders:

1.Case T-670/21 is removed from the register of the General Court.

2.NTU International A/S shall pay the costs, including those relating to the proceedings for interim measures.

Luxembourg, 3February 2022.

* Language of the case: English.