Judgment — ECLI:EU:T:2003:36
Date: 2003-02-25
Language of the case: French
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Public procurement in the European Union
Concepts: Statement of reasons;Award criteria;Assessment in concreto;Scope
Procedure: Action for annulment - unfounded;Action for damages - unfounded
Origin: Belgium

Summary of the Judgment 
1. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision 
to reject a tender under the procedure for the award of a public works contract 
(Art. 253 EC; Council Directive 93/37, Art. 8(1)) 
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SUMMARY — CASE T-183/00 
2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision 
to reject a tender under the procedure for the award of a public works contract — 
Assessment on the basis of the information available to the applicant at the time the 
application was brought 
(Art. 253 EC; Council Directive 93/37, Art. 8(1)) 
3. Approximation of laws — Procedures for the award of public works contracts — 
Directive 93/37 — Award of contracts — Award criteria — Chosen by the con­
tracting authority — Limit — Criteria to be used which enable the most economically 
advantageous tender to be identified 
(Council Directive 93/37, Art. 30(2)) 
1. According to Article 8(1) of Directive 
93/37 concerning the coordination of 
procedures for the award of public 
works contracts, which, by virtue of 
Article 56 of the Financial Regulation, 
is applicable to contracts awarded by 
the Community institutions where the 
value of the contract exceeds the 
threshold laid down in that directive, 
an institution fulfils its obligation to 
provide eliminated tenderers with a 
statement of reasons if it first informs 
them immediately of the fact that their 
tender has been rejected by a simple 
unreasoned communication and then 
subsequently, if expressly requested to 
do so, informs them of the relative 
characteristics and advantages of the 
successful tender and the name of the 
successful tenderer within 15 days of 
receipt of a written request. 
Such a manner of proceeding satisfies 
the purpose of the duty to state reasons 
enshrined in Article 253 EC, according 
to which the reasoning followed by the 
authority which adopted the measure 
must be disclosed in a clear and 
unequivocal fashion so as, on the one 
hand, to make the persons concerned 
aware of the reasons for the measure 
and thereby enable them to defend 
their rights and, on the other, to enable 
the Court to exercise its power of 
review. The adequacy of a statement 
of reasons is not called into question by 
the fact that the institution sub­
sequently provided a more detailed 
explanation. 
(see paras 54-55, 57) 
2. Compliance with the duty to state 
reasons laid down in Article 253 EC 
must be assessed in the light of the 
information available to the applicant 
at the time the application was 
brought. If, in the context of Directive 
93/37 concerning the coordination of 
procedures for the award of public 
works contracts, the eliminated ten­
derer, before bringing an action but 
after the date laid down by Article 8(1) 
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STRABAG BENELUX v COUNCIL 
of that directive, asks the institution 
concerned for additional explanations 
about a decision to reject its tender and 
receives those explanations, it cannot 
ask the Court not to take them into 
consideration when determining 
whether the statement of reasons is 
adequate; however, the institution is 
not permitted to substitute an entirely 
new statement of reasons for the orig­
inal statement of reasons. 
(see para. 58) 
3. Article 30(2) of Directive 93/37 con­
cerning the coordination of procedures 
for the award of public works contracts 
does not list the criteria which may be 
adopted as criteria for the award of a 
contract to what is the most economi­
cally advantageous tender. Although 
that provision thus leaves it to the 
contracting authority to choose the 
criteria on which it proposes to base 
its award of the contract, that choice 
may relate only to criteria aimed at 
identifying the offer which is economi­
cally the most advantageous. 
The listing of the award criteria in the 
contract documents without specifying 
the order of their importance is not 
incompatible with Article 30(2) of the 
directive, which does not prescribe but 
merely recommends that the criteria 
for awarding a contract should be 
placed in order of importance. The 
contracting authority has a wide dis­
cretion not only in choosing the 
contract-award criteria which it 
intends to follow but also as regards 
the relative weight it accords to the 
various criteria for the purpose of 
taking a decision to award a contract 
following a tendering procedure, pro­
vided that the assessment it carries out 
is designed to identify the most econ­
omically advantageous offer. 
(see paras 74, 77) 
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