2.

In view of that conclusion in relation to the first of the remaining two points at issue, I turn now to consider, as a secondary matter and fairly briefly, the question whether the Commission's objection in relation to the first paragraph of Article 10 of Law No 741 is justified or whether the Italian Government is correct in its view that the said provision (which was substantially retained in the Law of 8 October 1984 — a fact which is of course not now in dispute) is wholly in conformity with Article 29(1) of Directive 71/305. As has already been pointed out, the provision in question added to Article 24 of the Law of 8 August 1977 (which provided as criteria for the award of contracts (a) the lowest price and (b) the most economically advantageous tender) the further criterion of the average price calculated on the basis of the average of those tenders in the lower half of the scale between the lowest and highest tenders (which is the method of calculation referred to in Article 4 of the Law of 2 February 1973). The Commission takes the view that that provision does not correspond to the criterion referred to in the first subparagraph of Article 29 (1) precisely because it does not refer to the lowest price; it also contends that it does not comply with the criterion of the most economically advantageous tender laid down in the second subparagraph of Article 29 (1) because that provision basically covers only qualitative and not purely quantitative criteria; if price is to be a relevant consideration then it can only be so as one of several factors to be considered in taking a discretionary decision. In reply to the Commission's argument the Italian Government contended that in reality the provision in question, contrary to the Commission's belief, did not add a third criterion for the award of contracts and fell completely within the scope of the second subparagraph of Article 29 (1). That view is based on the fact that in that subparagraph, factors which are certainly not exclusively qualitative criteria, such as the ‘period of completion’, are of significance. Price is also expressly mentioned as a factor to be taken into account and there is certainly no compelling reason to conclude that price is only of importance in conjunction with other factors. In fact the contested provision lays down a yardstick for calculating the most economically advantageous price because the function of the price in that provision is different from its function in the first subparagraph of Article 29 (1): the correct market price is determined by that method, which, by excluding extremely low tenders which can hardly be regarded as serious, ensures that the contract is awarded to a tenderer who may be relied on to carry out the work correctly. In the light of the wording and scheme of the directive I consider that the view taken by the Commission contains the better arguments. It is obvious that only two criteria for the award of contracts are provided for in the directive. If the sole factor is price, the first subparagraph of Article 29 (1) clearly provides that only the lowest price is to be taken into account and no other. However, inasmuch as the price is also relevant under the second subparagraph of Article 29 (1), that is to say in connection with the most economically advantageous tender, the intention must be that in that context price is not to be taken into account in isolation and by way of derogation from the first subparagraph — which would hardly be comprehensible — but only in conjunction with the other factors (such as period for completion, running costs and so on) which must be assessed when a discretionary decision is taken. That view is supported not least by Article 29 (2) which lays down what information is to be provided when the second subparagraph of Article 29 (1) is applied: it provides that all the criteria applied to the award, where possible in descending order of importance, are to be stated. That does in fact show that a number of criteria fall to be considered under the second subparagraph of Article 29 (1). Thus a tender can hardly be ‘the most economically advantageous tender’ if it is determined on the basis of the average of those tenders in the lower half of the scale between the lowest and highest tenders. Even if the Italian Government's argument that the advertising authority may be particularly concerned to exclude extremely low tenders (because they are often not serious and give rise to doubt whether the work involved will be completed reliably) is accepted, it is certainly not necessary to derogate from the scheme of the directive to achieve that purpose as was done in Italian Law No 741. On the contrary, account may be taken of that aim by laying down minimum prices, which is, according to the Commission's submission, a quite customary practice in Italy. I do not accept the counterargument that that might give rise to difficulties since the price level may change considerably between the invitation to tender and the completion of the project due to inflation. In fact that problem may be mitigated by speeding up somewhat the procedure which does not necessarily have to take up to a year, as is apparently often the case in Italy. Furthermore, the administration should be equally able, when laying down a minimum price, to make an allowance for inflation over a relatively short period, as is expected of the undertakings submitting tenders, on the basis of whose tendered prices, according to the contested provision, an average price is to be determined as the price which most closely corresponds to the market conditions. If it were in fact considered appropriate to give a judgment on that part of the appliation, it should be declared that the first paragraph of Article 10 (1) of Law No 741 is incompatible with the first subparagraph of Article 29 (1) of the directive and that it does not comply with the requirements of the second subparagraph of Article 29 (1). It should also be recognized that the Commission has an interest in such a declaration even after the repeal of Law No 741 because the Italian Government has substantially retained the contested provision in Article 2 of the Law of 8 October 1984.