Opinion of the Advocate General — ECLI:EU:C:2001:266
Date: 2001-05-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary of the Judgment 
1. Approximation of laws — Procedures for the award of public works contracts — 
Directive 71/305 — Award of contracts — Principle that tenderers must be treated 
equally — Scope 
(Council Directive 71/305) 
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SUMMARY — CASE C-19/00 
2. Approximation of laws — Procedures for the award of public works contracts — 
Directive 71/305 — Award of contracts — Award criteria — Choice of criteria by 
the awarding authority — Limits 
(Council Directive 71/305, Art. 29(1)) 
3. Approximation of laws — Procedures for the award of public works contracts — 
Directive 71/305 — Award of contracts — Award criterion relating to a factual 
element that could be known precisely only after the contract had been awarded — 
Whether permissible — Conditions — Compliance with the principle that tenderers 
must be treated equally 
(Council Directive 71/305, Art. 29(1) and (2)) 
1. Compliance with the principle that 
tenderers must be treated equally, 
which lies at the very heart of Directive 
71/305 concerning the coordination of 
procedures for the award of public 
works contracts, as amended by Direc­
tive 89/440, requires that tenderers be 
in a position of equality both when 
they formulate their tenders and when 
those tenders are being assessed by the 
adjudicating authority. 
(see paras 33-34) 
2. Article 29(1), second indent, of Direc­
tive 71/305 concerning the coordina­
tion of procedures for the award of 
public works contracts, as amended by 
Directive 89/440, does not list exhaus­
tively the criteria which may be 
accepted as criteria for the award of a 
public works contract. The choice of 
criteria made by the appointing autho­
rity may, however, relate only to criteria 
designed to identify the offer which is 
economically the most advantageous 
and must not confer on the adjudicat­
ing authority an unrestricted freedom 
of choice as regards the awarding of 
the contract to a tenderer. 
(see paras 35-37) 
3. In the case of the award of a public 
works contract coming within the 
scope of Directive 71/305 concerning 
the coordination of procedures for the 
award of public works contracts, as 
amended by Directive 89/440, the use 
of a criterion for awarding the contract 
which relates to a factual element that 
will be known precisely only after the 
contract has been awarded will be 
compatible with the requirements of 
equal treatment of tenderers only on 
condition that the transparency and 
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SIAC CONSTRUCTION 
objectivity of the procedure are 
respected, which presupposes that the 
criterion is mentioned in the contract 
documents or contract notice, that it is 
there formulated in such a way as to 
allow all reasonably well-informed and 
normally diligent tenderers to interpret 
it in the same way, and that the 
adjudicating authority must keep to 
that interpretation throughout the pro­
cedure and apply the criterion in ques­
tion objectively and uniformly to all 
tenderers. 
Objectivity may be guaranteed by 
recourse to the professional opinion 
of an expert, on condition that his 
report is based, in all essential respects, 
on objective factors regarded in good 
professional practice as being relevant 
and appropriate to the assessment 
made. 
(see paras 38, 40, 42-45 
and operative part) 
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