Opinion of the Advocate General — ECLI:EU:C:2003:121
Date: 2003-02-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Approximation of laws — Procedures for the award of public supply contracts — 
Directive 93/36 — Award of contracts — Most economically advantageous 
I - 14527 
SUMMARY — CASE C-448/01 
tender — Criteria — Supply of electricity from renewable energy sources — 
Whether permissible — Conditions 
(Council Directive 93/36, Art. 26) 
2. Approximation of laws — Review procedures relating to the award of public supply 
and public works contracts — Directive 89/665 — Finding of illegality of an award 
criterion by the review body — Obligation to cancel the invitation to tender 
(Council Directive 89/665) 
1. The Community legislation on public 
procurement does not preclude a con­
tracting authority from applying, in the 
context of the assessment of the most 
economically advantageous tender for 
a contract for the supply of electricity, 
an award criterion with a weighting of 
45% which requires that the electricity 
supplied be produced from renewable 
energy sources. The fact that that 
criterion does not necessarily serve to 
achieve the objective pursued is irrel­
evant in that regard. 
On the other hand, that legislation does 
preclude such a criterion where 
— it is not accompanied by require­
ments which permit the accuracy of 
the information contained in the 
tenders to be effectively verified, 
— it requires tenderers to state how 
much electricity they can supply 
from renewable energy sources to a 
non-defined group of consumers, 
and allocates the maximum number 
of points to whichever tenderer 
states the highest amount, where 
the supply volume is taken into 
account only to the extent that it 
exceeds the volume of consumption 
expected in the context of the pro­
curement. 
It is for the national court to determine 
whether, despite the contracting auth­
ority's failure to stipulate a specific 
supply period, the award criterion was 
sufficiently clearly formulated to satisfy 
the requirements of equal treatment 
and transparency of procedures for 
awarding public contracts. 
(see para. 72, operative part 1) 
I - 14528 
EVN AND WIENSTROM 
2. The community legislation on public 
procurement requires the contracting 
authority to cancel an invitation to 
tender if it transpires in review pro­
ceedings under Article 1 of Directive 
89/665 on the coordination of the laws, 
regulations and administrative provi­
sions relating to the application of 
review procedures to the award of 
public supply and public work 
contracts, as amended by Directive 
92/50 relating to the coordination of 
procedures for the award of public 
service contracts, that a decision relat­
ing to one of the award criteria laid 
down by that authority is unlawful and 
it is therefore annulled by the review 
body. 
In such a case the contracting authority 
cannot validly continue the tender 
procedure leaving aside that criterion 
since that would be tantamount to 
amending the criteria applicable to 
the procedure in question. 
(see paras 94-95, operative part 2) 
I - 14529