Case C-331/04: Reference for a preliminary ruling by the Consiglio di Stato, in sede giurisdizionale (Sesta Sezione), by order of that court of 6 April 2004 in the case of A.T.I. E.A.C. srl and VIAGGI DI MAIO SNC against A.C.T.V. Venezia spa
Date: 2004-09-25
Institutions: Court of Justice
Subjects: administrative procedure, award of contract, interpretation of the law, invitation to tender, provision of services, public contract, tendering

25.9.2004

EN

Official Journal of the European Union

C 239/5

Reference for a preliminary ruling by the Consiglio di
Stato, in sede giurisdizionale (Sesta Sezione), by order of
that court of 6 April 2004 in the case of A.T.I. E.A.C. srl
and VIAGGI DI MAIO SNC against A.C.T.V. Venezia spa

(Case C-331/04)

(2004/C 239/08)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Consiglio di Stato, in sede
giurisdizionale, Sesta Sezione (Council of State, Judicial Divi-
sion, Sixth Chamber), of 6 April 2004, received at the Court
Registry on 29 August 2004, for a preliminary ruling in the
case of A.T.I. E.A.C. srl and VIAGGI DI MAIO SNC against
A.C.T.V. Venezia spa on the following questions:

‘Is it lawful to interpret those provisions as flexible rules
allowing the contracting authority, where the award is to
be made on the basis of the economically most advanta-
geous tender, to fix the criteria in a general way in the
tender notice or the contract documents, leaving it to the
if need be,
jury to specify or supplement those criteria,
provided always that such specifying or supplementing is
carried out before the packets containing the tenders have
been opened and that such action introduces nothing new
in relation to the criteria fixed in the tender notice or, on
the contrary, must that provision be interpreted as a rigid
rule requiring the contracting authority to determine,
analytically, the criteria for the award of the contract in the
tender notice or the contract documents, and in any case
before the prequalification stage or the invitation to tender,
and as meaning that the jury may not subsequently in any
way do anything to specify or supplement those criteria or
to creating subheadings or sub-marking, since for reasons
of transparency every piece of information concerning the
criteria for the award must appear in the notice or contract
documents.

In short, is the traditional line of interpretation followed in
the past in the Consiglio di Stato's case-law, which permits
the jury to take action to supplement the criteria, lawful in
the light of Community law?

Is it lawful, in the light of that provision loosely interpreted
having regard to the adverbial phrase “where possible”, for
the contracting authority to adopt conditions for participa-
tion that provide, with regard to one of the criteria for the
the organisational and support
award (in this instance,
procedures), with reference to a complex series of criteria
for which the tender notice did not allocate individual
points, so that they were in that sense in part indetermi-
nate, that the points should be allocated at the absolute
discretion of the contracting authority, or does not that
provision in any case require that the criteria should as a
general rule be formulated absolutely definitively, which is
not compatible with the fact that those criteria were not

if

it

allocated separate points in the notice;
is lawful,
because the provision is considered to be flexible and
because it is not essential to give points to every item, is it
permissible, where the tender notice does not give express
power to the jury, for the latter to specify or supplement
the criteria (simply by allocating individual importance and
relative weight to every single item that the notice intended
to be assessed by the overall allocation of a maximum of
25 points ), or is it not on the contrary necessary to apply
the conditions of the tender literally, allocating the points
on an overall assessment of
the various and complex
matters taken into consideration by the lex specialis?

In any case, is it lawful, in the light of that provision, to
give the jury which is to assess the tenders, regardless of
the manner in which criteria have been formulated in the
tender notice, in a procedure for an award on the basis of
the economically most advantageous tender, the power, but
only in respect of the complexity of the matters to be
assessed, to restrict its own actions in a general way, by
specifying the parameters for the application of the criteria
previously determined in the tender notice, and may such
power held by the jury be exercised by creating subhead-
ings, sub-points, or simply by setting more specific criteria
for the application of the criteria laid down generally in the
notice or the contract documents, before of course the
envelopes have been opened?’

Action brought on 15 June 2004 by the Commission of
the European Communities against the Hellenic Republic

(Case C-256/04)

(2004/C 239/09)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 15 June
2004 by the Commission of the European Communities, repre-
sented by Arnaud Bordes and Minas Konstantinidis, of its Legal
Service.

The Commission claims that the Court should:

1) declare that, by failing to adopt, and in any event to notify
to the Commission, the laws, regulations and administrative
provisions necessary to comply with Council Directive
2001/89/EC (1) of 23 October 2001 on Community
measures
the
Hellenic Republic has failed to fulfil its obligations under
that directive;

the control of classical swine fever,

for

2) order the Hellenic Republic to pay the costs.