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ATI

E A C A N D O T H E R S

O P I N I O N O F A D V O C A T E G E N E R A L

RUIZ-JARABO C O L O M E R

d e l i v e r e d o n 8 S e p t e m b e r 2 0 0 51

1.

This reference for a preliminary ruling

concerns the interpretation of Article 36(2)

of Council Directive 92/50/EEC and Article

34(2) of Council Directive 93/38/EEC, which

harmonise the methods of awarding publ ic

service contracts 2and those concluded in

certain sectors.

3

2. The reference from the Consiglio di Stato

relates to the award of a contract to the

economically most advantageous offer and

the guidelines for making the decision, and

raises the question of the powers of the

contracting authority and of the jury, so as to

establish whether the former may simply set

out the parameters in the tender notice or

the contract documents and leave it to the

latter to specify and supplement them.

3. In order to give a reply to that court, it is

necessary to observe mandatory principles

governing public procurement, which seek to

introduce objective rules of participation and

allocation, with transparent procedures in

which discriminatory measures and clauses

are prohibited.

I

The provisions requiring interpreta-

tion

4. Both directives, which focus on the equal

treatment of bidders (Article 3(2) of Direc

tive 92/50 and Article 4(2) of Directive

93/38), provide neutral methods of granting

contracts, either based on the lowest price or

on the most advantageous tender from an

economic point of view (Articles 36(1) and

34(1) respectively).

5.

As re gard s th e latter, Article 36(2) of

Directive 92/50 provides that ' the contract

ing authority shall state in the contract

documents or in the tender not ice the award

1 Original language: Spanish

2

Directive of 18 lune 1992 relating to the coordination of

procedures for the award of public service contracts

(OJ

1992

L

209. p. 1

).

3 Directive of 14 lune 1993 coordina ting the procu reme nt

procedures of entit ies operating in th ewater energy, transport

and telecommunications sectors (Ol 1993 L 199, p 84).

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OPINION OF MR

RUIZ-JARABO

CASE

C-331/04

criteria ... in descending order of impor

tance'. Article 34(2) of Directive 93/38 is

expressed in almost identical terms.

II The facts in the main proceedings

and the questions referred for a prelimin-

ary ruling

6. The temporary association of undertak

ings constituted by EAC Sri and 'Viaggi di

Maio'Sne

('EAC') took part in a negotiated

procedure arranged by the Azienda del

Consorcio Trasporti Veneciano

( ACTV ),

using the second of the methods stated,

pursuant to Article 24(1)(b) of Legislative

Decree No

158/1995,

4

for the subcontract

ing of public passenger transport services. 5

7. The contract documents contained the

instructions for identifying the best tender:

the third instruction related to the organisa

tional procedures and support structures for

implementing the service, which the jury

could assess with a maximum of25points.

6

It was necessary to state: (a) the depots and/

or areas where buses could be parked, (b) the

procedures for supervising the service and

the number of employees supervising the

service, (c) the num ber of regular drivers and

the type of licence which authorises them to

drive coaches, (d) the company's premises in

the province of Venice and (e) the staff

engaged in organising drivers' shifts.

8. After the envelopes had been submitted

and before they had been opened but, in any

event, knowing who the candidates were, the

jury allocated the points between the five

aforementioned headings, giving 8 to the

first, 7 to the second, 6 to the third and 2 to

each of the other two.

9. The service was awarded to the temporary

association of undertakings 'La Lnea', which

received 86.53 points; EAC received only

83.50 points and therefore challenged the

result before the Tribunale Amministrativo

Regionale del Veneto (Regional Administra

tive Court, Veneto) alleging that its opponent

won as a result of the distribution ex post

facto of points relating to the organisational

procedures and support structures, and

relying on Article 36 of Directive 92/50 and

Article 24(1)(b) of Legislative Decree

158/1995.

10.

The Tribunale dismissed the action by

judgment of15April

2003,

against which the

4

Gazzeta Ufficiale

della

Repubblica

No 104, of 6 May 1995.

That article provides that 'in the case ofthemost economically

advantageous tender, decided on the basis of various criteria,

which vary according to the market ..., the contracting

authorities shall state, in the contract documents or in the

tender notice, all the award criteria ... in descending order of

importance'.

5 The Mestre urban transport service, lot No 1, from 16 June

2002 to 31 December2003.

6 Paragraph 3.10, No 6 of the contract documents.

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EAC brought an appeal before the Consiglio

di S ta to , whose case- law approves the

practice of giving award juries som e freedom

of action to introduce factors, to add specific

detail to the general guidelines set out in the

tender notice and to provide for subheadings

in the main categories already defined.

11 . In order to establish whether Article 36

of Directive 92/50 and Article 34 of Directive

93/38 permit that interpretat ion, the Con

siglio di Stato refers the following questions

to the Court of Justice:

'(1) Is it lawful to interp ret tho se pr ovisio ns

as flexible rules allowing the contracting

authority, where the award is to be

made on the basis of the economically

most advantageous tender, to fix the

criteria in a general way in the tender

not ice or the contract documents , leav

ing it to the jury to specify or supple

ment those criteria, if need be, provided

always that such specifying or supple

menting is carried out before the pack

ets containing the tenders have been

opened, and does not alter those criteria

or, on the contrary, must those provi

sions be interpreted as a rigid rule

requiring the contracting authority to

determine, analytically, the criteria for

the award of the contract in the tender

not ice or the contract documents , and

in any case before the

prequalification

stage or the invitation to tender, and as

meaning that the jury may not subse

quent ly do anything to specify or

supplement those criteria or to create

subheadings or sub-marking since for

reasons of transparency every piece of

information concerning the criteria for

the award must appear in the notice or

cont ract documents?

In short, is the traditional l ine of

interpretation followed in the past in

the Consiglio di Stato scase-law, which

permits the jury to supplement the

award criteria before the envelopes are

opened, lawful in the light of Commu

nity law?

(2) Is it lawful, in the light of those

provisions loosely interpreted having

regard to the adverbial phra se where

possible , for the c ontra cting autho rity

to adopt conditions for participation

that provide, with regard to one of the

criteria for the award (in this instance,

the organisat ional and support proce

dures),

with reference to a complex

series of parameters for which the

tender notice does not allocate indivi

dual points, so that they were in that

sense in part indeterminate, that the

points should be allocated at the abso

lu t e d i s c re t i on o f t he c on t rac t i ng

authority, or do not those provisions

in any case require that the criteria

should as a general rule be formulated

absolutely definitively, which is not

compatible with the fact that those

cri teria were not al located separate

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points in the notice; if it is lawful,

because the provisions are considered to

be

flexible

and because it is not essential

to give points to every item, is it

permissible, where the tender notice

does not give express power to the jury,

for the latter to specify or supplement

the criteria (simply by allocating indivi

dual importance and relative weight to

every single item that the notice

intended to be assessed by the overall

allocation of a maximum of 25 points),

or is it not on the contrary necessary to

apply the conditions of the tender

literally, allocating the points on an

overall assessment of the various and

complex matters taken into considera

tion by the

lexspecialis?

(3) Is it lawful, in the light of [those

provisions] to give the jury which is to

assess the tenders, regardless of the

manner in which criteria have been

formulated in the tender notice, in a

procedure for an award on the basis of

the economically most advantageous

tender, the power, in respect of the

complexity of the matters to be

assessed, to restrict its own actions, by

specifying the parameters for the appli

cation of the criteria previously deter

mined in the tender notice, and may

such power be exercised by creating

subheadings, sub-points, or simply by

setting more specific criteria than those

laid down in the tender notice or the

contract documents, before the envel

opes have been opened?'

III

rocedure

before the Court of

Justice

12. W ritten observations were submitted,

within the time-limit laid down in Article

20 of the EC Statute of the Court of Justice,

by the Commission, the Austrian and

Netherlands Governments, EAC and ACTV,

who presented oral argument at the hearing

held on 7 July 2005.

IV

dm issibility of the que stions

referred for a preliminary ruling

13. The Austrian Government and ACTV

contend that the reference for a preliminary

ruling is inadmissible, for different reasons

and to different extents.

14.

The former complains that the order for

reference is vague as to the provisions of

which it requires an interpretation, and

infers from page 10 of the order that Article

34 of Directive 93/38 is unconnected with

the m ain action. Neither of these criticisms is

persuasive, since the Consiglio di Stato raises

its doubts 'with regard to the rule laid down

in Article 34 of Directive 93/38 and, in

particular, to the similar ru le in A rticle 36 of

Directive 92/50', indicating that the appeal

refers to the wording of Article 36 of

Directive 92/50, which is similar to that of

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Article 34 of Directive 93/38, 'applicable to

the present case, even if it is not expressly

quoted by the appellant ' .

15.

In a way, the Austrian Government is

not seeking the rejection

in limine

of the

proceedings, but wants the analysis to be

limited to the second of the provisions cited,

which has the same meaning as Article 34 of

Directive 93/38. In the circumstances, that

claim of admissibility may only be described

as superfluous because whatever interpreta

tion is suggested will suit both provisions,

and it will be up to the national court to

choose between them; the Court of Justice

must not intervene in that task, unless the

facts are incompatible with Community law

or the doubt raised with regard to inter

pre ta t ion is based on m ere hy pothes i s ,

unconnected with the t rue circumstances of

the case.

16.

AC TV 's claim of inadmissib ility falls

within the latter category, as it only gives

the appearance of having more weight .

ACTV claims that the Italian court 's interest

in knowing whether the jury may 'supple

ment' or 'specify' the award criteria laid

down in the tender notice or the contract

documents is irrelevant because, in this case,

the jury did not carry out such operations;

according to the order for reference, i t

merely created subcriteria of calculation

which define the terms of that document

but do not add to it (final paragraph in Point

5).

17. Irrespective of the problem of deciding

whether the question referred for a pre

liminary ruling is hypo thetical, this argu

ment is contradictory because it accepts that

the approved guidelines were defined more

closely and then, immediately afterwards,

explains that the Consiglio di Stato does not

need to establish whether Article 36 of

Directive 92/50 and Article 34 of Directive

93/38 authorise that subsequent operat ion.

Moreover, the questions are formulated in

such a way as to highlight the legality of the

Italian legislation applicable to the case,

which accords the jury powers to make

additions before the envelopes are opened.

The reference for a preliminary ruling is

therefore appropriate.

V

The rules governing public procure-

men t

18. The Consiglio di Stato wishes to know

whether, in a procedure for an award on the

basis of the economically most advantageous

tender, the provisions to which it refers allow

the contracting authority to fix the criteria

for assessing the tenders in a general way in

the tender not ice or contract documents ,

leaving it to the jury to specify or supplement

them (question 1).

7 T h eonlycase-law which has prohibited hypothetical questions

- established m Case 104 79 Foghai vNmello [1980] F.CR715

and Case 2

81)

foglia v Novelto

[1981]

ECR

3 0 4 5 -

has not

been upheld subsequently and has drawn criticism from the

most authoritative academic lawyers (Barav. A.. Preliminary

Censorship? The ludgment of the European Court in Foglia y

Novello. in European Law Review

1980,

pp. +13 to

4681.

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19. It also seeks to clarify whether, in the

light of that broad interpretation and having

regard to the words 'where possible' used in

the two articles at issue, the Authority may

allocate points to one of the criteria for

assessment, to be divided between complex

parameters, which are stated but without

indication of their relative weight, so that

their order of priority is determined later by

the jury, which may restrict its own actions

by specifying the rules previously determined

in the tender notice, in particular by creating

subheadings or subpoints (questions 2 and

3).

20.

To dispel those doub ts, it is necessary to

follow the advice given in the opinion in

Lombardini and

Mantovani

8

o recall the

principles underlying selection of a contrac

tor, in order better to understand Article 36

of Directive 92/50 and Article 34 of Directive

93/38.

21.

The Directives on public contracts, each

one concerned with a specific field, aim to

promote the development of open competi

tion by realising the four fundamental free

doms of European integration (free move

ment of goods, persons, services and capi

tal). 9Those directives aim to give effect to

the requirements set out by the Community

legislature in A rticles 9, 52, 59 and 73B of the

EC Treaty (now, after amendment, Articles

23 EC, 43 EC, 49 EC and 56 EC).

22.

Giving effect to those requirements and

the pursuit of that objective can

only

be

achieved if those who wish to be awarded

public contracts can apply on an equal basis,

withou t any hin t of unjustified bias. To this

end, a system based on objectivity, in terms

of both substance and form, is indispensable.

Such a system must be established, as

regards substance, by setting objective cri

teria for participation in the tender and

award of contracts,

10

and as regards form, by

making provision for transparent procedures

in which publication is the norm.

23. The criteria for selection of candidates

refer to the professional, economic and

technical suitability of applicants. To rule

8

Joined Cases C-285/99 and C-286/99 [2001] ECR

I-9233.

9 In particular, the second recital in the preamble to Directive

92/50 and the first of the preamble to Directive 93/38. The

same notion is found in the second recital in the preamble to

Directive2004/18/ECof the European Parliament and of the

Council of31March 2004 on the coordination of procedures

for the award of public works contracts, public supply

contracts and public service contracts (OJ 2004 L 134, p.

114) which will replace inter alia Directive 92/50 when the

time-limit for its transposition expires in 2006.

10 The distinction between the two kinds of criteria, which was

drawn by Advocate G eneralDarmonin his Opinion in Case

31/87

Beentjes

[1988] ECR 4635, is also contained in

Directive 2004/18 (recitals 39 and 46).

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out any discriminatory effect, it is necessary

in each case to predetermine the rules

governing the selection procedure, as well

as the levels of sk i l l and exper ience

required.11

24. Once the tenderers qualifying for award

of the contract have been selected, that

award is subject to objective parameters of

assessment, whether the lowest bid or the

economical ly most advantageous tender. If

the second c riterion is applied, the contra ct

ing authority sets out the award criteria in

the contract doc um ents or tender not ice, 1

2

stating their respective importance, in accor

dance with the provisions with which this

reference for a preliminary ruling is con

cerned.

25.

Consequently, the system leaves nothing

to chance or subject to any arbitrary decision

on the part of the body which makes the final

decision. Equality of treatment for tenderers

requires that any person who wishes to be

awarded a contract must know beforehand

what he must do to be awarded it , so that the

awarding body is confined, given the discre

tion involved in the technical evaluation, to

applying parameters set out in the lex

contractus both those rules governing public

contracts in a general sense, and those which

involve in particular a specific contract.

26. To ensure that such a system is effective

and that there is no discrimination, i t is not

sufficient to set objective criteria for the

procedures, but application of the criteria

must be based on transparency. This must

apply from the time of the tender notice, in

the contract documents and, finally, in the

selection stage

itself 1

3

both in the open

procedures and the restr icted procedures .

VI

The reply to the questions referred

for a preliminary ruling

27. Some of the claims made at the hearing

have taken the Court of Justice far from

Luxembourg, to an Italian court where the

main action is to be decided, but i t must be

made clear that it is not for this European

Court, but for the Consiglio di Stato, to

determine whether the t ransport services

contract in question was awarded in accor

dance with the law.

28.

This Court has a different, more com

plex and more important task: to determine

whether the articles for which an interpreta

tion is sought permit, in the light of the

aforem ent ion ed pr incip les , s i tuat ions in

which th e jury does not merely assess

although, inevitably, with some latitude

the tenders received in accordance with the

rules set out in the tender notice or the

contract documents , because i t has been

11

-

Articles

29 to 35 of

Directive 92

50

and

Articles 30

to 33

o f

Directive 93 38 refer to

this

aspect.

12 The contractor is to be selected according to circumstances

connected

with

the subject-matter of the

contract

which

may

relate to

quality,

technica l merit aesthetic and

functional characterist ics, technical assistance and service,

delivery

date,

delivery period or period of

completion,

cost-

effectiveness,

price or running costs (Article

3b(1)(a)

of

Directive 92 50 and Article

34(1)(a) of

Directive 93

38)

13 Art icle15 and co rrob ora ting a rticles of Directive 92 50, and

also Article

21

et seq. of Directive 93 38.

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given the additional role of specifying,

adding to and supplementing them. In short,

it is necessary to ascertain whether that body,

whose function is to implement, can acquire

'quasi-legislative' responsibilities, by defining

the content of the lex contractus in some

way.

A

The first question referred for a

preliminary ruling

29.

Article 36 of Directive 92/50 and Article

34 of Directive 93/38 are rules for awarding

contracts, which lay down for that purpose

two basic criteria which have already been

mentioned: the lowest price and the eco

nomically most advantageous tender. The

former, because it is fixed, leaves no room for

assessment by the awarding body. The latter,

however, constitutes an undefined legal

concept, which the contracting authority

must specify in each case, to which end

Articles 36(1)(a) and 34(1)(a) provide a non-

exhaustive list of various points which must

be included in the contract docum ents or the

tender notice in descending order of impor

tance, as required under Articles 36(2) and

34(2).

30.

It may therefore be inferred that the

criteria which the jury must take into

consideration when selecting the most

advantageous tender must be laid down by

the contracting au thority in the tender notice

or the contract documents, and they cannot

be fixed by reference, nor can that task be

deferred until a later time.

31.

This, for Community case-law, is an

inescapable corollary of the principles of

transparency, publicity and non-discrimina

tion. The assessment criteria must be appro

priate for identifying the economically most

advantageous tender, so they must necessa

rily be linked to the subject-matter of the

contract

14

and be included in the aforemen

tioned docum ents, 15 in such a way as to

allow all reasonably well-informed and nor

mally diligent tenderers to interpret them in

the same way;

16

their order of importance

should also be

stated.

17

32.

Thus, the contracting authority does not

have complete freedom of action: it does not

have a discretionary power to establish

formulae for assessing the tenders; nor does

it have the capacity to choose when to

publicise them, o r to change them during the

selection procedure, which also prevents it

from altering their

meaning.

18

14

See to this effect Case

C-513/99 Concordia Bus Finland

[2002]ECRI-7213,paragraph59,applying Article 36(1)(a) of

Directive 92/50.

15

The judgment in

Beentjes

stated that a general reference to a

provision of national legislation cannot satisfy the publicity

requirement (paragraph 35).

16 Case C-19/00 SIAC Construction [2001] ECR I-7725,

paragraph 42. The judgment in Case C-448/01 EVN and

Wienstrom

[2003] ECR I-14527, paragraph 57, confirms this

approach.

17 Case C-470/99

Universale Bau

[2002] ECR 1-11617 para

graph 97.

18 This last consequence is reflected in the aforementioned

judgments inSIACConstruction paragraph

43 ,

andEVN and

Wienstrom

paragraph 92.

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33. In the light of all those considerations,

the jury must not be permitted to initiate any

changes and its participation must be limited

to applying the criteria prepared beforehand

by the contracting authority, of which all the

tenderers are duly aware, because they have

been subject to transparency and have been

publicised. Consequently, the specification

and supplementation activities to which the

Consiglio di Stato refers in its first question,

to the extent that they involve creating new

schemes, not merely implementing those

already established, infringe the spirit of

Directives 92/50 and 93/38, because they fail

to have regard to the grounds on which they

are based.

34. It is irrelevant that that task is carried

out before the envelopes are opened, because

equal treatment is required not only in the

decision but also in the participation, so that

the lack of complete information regarding

the condi t ions of the select ion procedure

means less publicity, which is likely to leave

out of the run ning possible compe ti tors who,

if they had had access to all the require

ments , might have decided to compete.

19

Furthermore, as the Commission and the

Austrian Government suggest, that possibi

lity would give the body responsible for

identifying the most acceptable offer the

abili ty to influence the end result , thus

jeopardising impartiality, because, when it

comes t o ca l cu l a t i ng t he f i na l t o t a l s ,

although it may not know the content of

the envelopes , i t does know who the

candidates are, and might t ip the scales in

favour of one of them.

35.

In short, under Article 36(2) of Directive

92/50 and Article 34(2) of Directive 93/38,

the contract ing authori ty must s tate the

award criteria, in detail , in the tender notice

or contract documents; the jury is not

authorised to do anything other than to

apply the m an d is preclu ded from mak ing

any alterations, even if this is done before the

envelopes are opened.

B The second and third questions

36. All the weighting factors must therefore

be announced in advance, in decreasing

order of importance.

37. Consequently, the criteria for awarding

the contract must always appear in the

tender not ice or the contract documents ,

19 The judgments in CaseC-87/94 Co ss on v Belgium

[1996] ECR I - 2 0 4 3 ,

paragraph 88,

and in

Universale-Bau.

paragraph 98,

give

as grounds for

the

obligation imposed on

the contracting authorities the expediency of enabling

potential tenderers to be aware, before preparing their

tenders, of the criteria to be taken into account in selecting

the best offer and the relative importance of those criteria.

Moreover

that requirement ensures the observance of the

principles of equal treatm ent a nd of transp arency

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and the jury may not eliminate any of them,

add others or subdivide those initially laid

down. As I have already pointed out, it does

not have competence to introduce new

criteria or to alter or supplement those

already existing.

38.

If it is impossible to weight the various

award criteria in the tender notice or

contract documents, it might be thought

that this was a task for the jury, but the

wording of Article 36(2) of Directive 92/50

and A rticle 34(2) of Directive 93/38 does not

permit it. This accords with the general

principles of public procurement, because it

might change the parameters and influence

the outcome of the selection procedure. In

that event, it is more in keeping with the

spirit of directives to entrust that task to an

expert, who is not involved in the final

decision.

20

39. Directives 2004/18 and

2004/17/EC,

21

both currently in force, confirm these views,

requiring the contracting authorities, in

Articles 53 and 55 respectively, to state each

of the criteria selected for identifying the

most advantageous offer, using a range of

points with an appropriate m aximum spread.

Where this is not possible for demonstrable

reasons, the contracting authority is required

to indicate the criteria in descending order of

importance. Thus, no competence is con

ferred on the jury to intervene in this matter.

40. There is all the m ore reason for rejecting

amodusoperandisuch as the one adopted in

the main proceedings, in which the con

tracting authority has laid down a criterion

to be assessed on the basis of various factors

to which it allocates an overall number of

points but no order of priority, leaving it to

the jury not only to distribute those points

but also to grade them.

41 . I therefore consider that, where it is

impossible to state the award criteria in

order of importance in the tender notice or

contract documents, Article 36(2) of Direc

tive 92/50 and Article 34(2) of Directive

93/38 do not allow the jury to do so

subsequently, even if it does so before the

envelopes are opened; accordingly, the jury

may not assume rules to govern that

intervention, nor may it distribute the points

initially set out in those documents between

the various parameters, by arranging these in

order of importance.

20 This was implicitly acknowledged by the judgm ent in SIAC

Construction to which I have already referred, which stated

that the opinion of an expert on a factual matter that will be

known precisely only in the future guarantees that the

criteria are applied objectively and uniformly to all tenderers

(paragraph 44).

21 Directive of the European Parliament and of the Council of

31 March 2004 coordinating the procurement procedures of

entities operating in the water, energy, transport and postal

services sectors

(OJ

2004 L 134, p. 1) which, when the time-

limit for its transposition expires , will replace Directive

93/38.

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VII Con clusion

42. In the light of the foregoing considerations, I propose that the Court of Justice

give the following reply to the questions referred by the Consiglio di Stato:

(1) Article 36(2) of Co unc il Directive 92/50 /EE C of 18 June 1992 relating to the

coordination of procedures for the award of public service contracts and Article

34(2) of Council Directive 93/38/EC of 14 June 1993 coordinating the

procurement procedures of ent i t ies operat ing in the water , energy, t ransport

and telecommunicat ions sectors require the contract ing authori ty to set out the

award criteria, in detail , in the tender notice or contract documents; the jury is

not authorised to do anything other than to apply them and is precluded from

making any alterations, even if this is done before the envelopes containing the

offers are opened.

(2) W he re it is impossible to state the award criteria in order of im po rtan ce in the

tender notice or contract documents, those provisions do not al low the jury to

do so subsequently, even if i t does so before the envelopes are opened;

accordingly, the jury may not assume rules to govern that intervention, nor may

it distribute the points initially allocated between the various parameters, by

arranging these according to their relative importance.

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