Judgment — ECLI:EU:C:2008:40
Date: 2008-01-24
Language of the case: Greek
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Concepts: Award criteria;Equal treatment and transparency;Selection criteria
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary of the Judgment 1. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts (Council Directive 92/50, Arts 23(1), 32 and 36(1)) 2. Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Award of contracts (Council Directive 92/50, Art. 36(2)) 1. In a tendering procedure, a contracting authority is precluded by Articles 23(1), 32 and 36(1) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 97/52, from taking into account as ‘award criteria’ rather than as ‘qualitative selection criteria’ the tenderers’ experience, manpower and equipment and their ability to perform the contract by the anticipated deadline. While that directive does not in theory preclude the examination of the tenderers’ suitability and the award of the contract from taking place simultaneously, the two procedures are nevertheless distinct and are governed by different rules. The suitability of tenderers is to be checked in accordance with the criteria of economic and financial standing and of technical capability referred to in Articles 31 and 32 of the directive, whereas the award of contracts is to be based on the criteria set out in Article 36(1), namely, the lowest price or the economically most advantageous tender. (see paras 26-28, 32) 2. Read in the light of the principle of equal treatment of economic operators and the ensuing obligation of transparency, Article 36(2) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, as amended by Directive 97/52, precludes the contracting authority in a tendering procedure from stipulating at a later date the weighting factors and sub-criteria to be applied to the award criteria referred to in the contract documents or contract notice. Article 36(2) requires that potential tenderers should be aware of all the elements to be taken into account by the contracting authority in identifying the economically most advantageous offer, and their relative importance, when they prepare their tenders. Therefore, a contracting authority cannot apply weighting rules or sub-criteria in respect of the award criteria which it has not previously brought to the tenderers’ attention. (see paras 36, 38, 45, operative part)