Opinion of the Advocate General — ECLI:EU:C:2005:529
Date: 2005-09-08
Language of the case: Italian
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: Italy

Summary of the Judgment Approximation of laws – Procedures for the award of public service contracts and procurement contracts in the water, energy, transport and telecommunications sectors – Directives 92/50 and 93/98 – Award of contracts – The most economically advantageous tender – Jury attaching specific weight to the subheadings of an award criterion set out in the contract documents – Lawfulness – Conditions (Council Directives 92/50, Art. 36 and 93/38, Art. 34) Article 36 of Directive 92/50 relating to the coordination of procedures for the award of public service contracts and Article 34 of Directive 93/38 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors must be interpreted as meaning that Community law does not preclude a jury from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contract documents were prepared, provided that that decision : – does not alter the criteria for the award of the contract set out in the contract documents; – does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation; – was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers. (see para. 32, operative part)