Judgment of the Court (Sixth Chamber) of 4 December 2003 in Case C-448/01 (Reference for a preliminary ruling from the Bundesvergabeamt): EVN AG, Wienstrom GmbH v Republik Österreich, third parties: Stadtwerke Klagenfurt AG and Kärntner Elektrizitäts-AG (Directive 93/36/EEC — Public supply contracts — Concept of the most economically advantageous tender — Award criterion giving preference to electricity produced from renewable energy sources — Directive 89/665/EEC — Public procurement review proceedings — Unlawful decisions — Possibility of annulment only in the case of material influence on the outcome of the tender procedure — Illegality of an award criterion — Obligation to cancel the invitation to tender)
Date: 2004-01-24
Institutions: Court of Justice
Subjects: award of contract, electrical energy, interpretation of the law, public contract, supplies contract

24.1.2004

EN

Official Journal of the European Union

C 21/5

Directive 90/219, and by failing to transpose the provisions of
that directive in respect of certain contained use by the Ministry
of Defence, the French Republic has failed to fulfil its obligations
under that directive;

2. Dismisses the remainder of the action;

3. Orders each party to bear its own costs.

(1) OJ C 369 of 22.12.2001.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 4 December 2003

in Case C-448/01 (Reference for a preliminary ruling from
the Bundesvergabeamt): EVN AG, Wienstrom GmbH v
Republik Österreich, third parties: Stadtwerke Klagenfurt
AG and Kärntner Elektrizitäts-AG (1)

(Directive 93/36/EEC — Public supply contracts — Concept
of the most economically advantageous tender — Award
criterion giving preference to electricity produced from
renewable energy sources — Directive 89/665/EEC — Public
procurement review proceedings — Unlawful decisions —
Possibility of annulment only in the case of material influ-
ence on the outcome of the tender procedure — Illegality of
an award criterion — Obligation to cancel the invitation to
tender)

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 irrelevant in that regard.

On the other hand, that legislation does preclude such a
criterion where

— It is not accompanied by requirements 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 procurement.

It is for the national court to determine whether, despite the
contracting authority’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.

2.

The Community legislation on public procurement requires the
contracting authority to cancel an invitation to tender if it
transpires in review proceedings under Article 1 of Directive
89/665 that a decision relating to one of the award criteria
laid down by that authority is unlawful and it is therefore
annulled by the review body.

(2004/C 21/09)

(Language of the case: German)

(1) OJ C 84 of 6.4.2002.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-448/01: Reference to the Court under Article 234
EC by the Bundesvergabeamt (Austria) for a preliminary ruling
in the proceedings pending before that body between EVN
AG, Wienstrom GmbH and Republik Österreich, third parties:
Stadtwerke Klagenfurt AG and Kärntner Elektrizitäts-AG, on
the interpretation of Article 26 of Council Directive 93/36/
EEC of 14 June 1993 coordinating procedures for the award
of public supply contracts (OJ 1993 L 199, p. 1) and of
Articles 1 and 2(1)(b) of Council Directive 89/665/EEC of
21 December 1989 on the coordination of the laws, regu-
lations and administrative provisions relating to the application
of review procedures to the award of public supply and public
works contracts (OJ 1989 L 395, p. 33), as amended by
Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts
(OJ 1992 L 209, p. 1), the Court (Sixth Chamber), composed
of: V. Skouris (Rapporteur), acting for the President of the
Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and
N. Colneric, Judges; J. Mischo, Advocate General; H. A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 4 December 2003, in which it has ruled:

JUDGMENT OF THE COURT

(Fifth Chamber)

of 27 November 2003

in Case C-497/01 (Reference for a preliminary ruling from
the Tribunal d’arrondissement de Luxembourg): Zita
Modes Sàrl v Administration de l’enregistrement et des
domaines (1)

(Sixth VAT Directive — Article 5(8) — Transfer of a
totality of assets — Continuation by the transferee in
the same branch of business as the transferor — Legal
authorisation to pursue the activity)

(2004/C 21/10)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

1.

The Community legislation on public procurement does not
preclude a contracting authority from applying, in the context

In Case C-497/01: Reference to the Court under Article 234
EC by the Tribunal d’arrondissement de Luxembourg (Luxem-