Judgment of the Court (Second Chamber) of  24 November 2005  in Case C-331/04 Reference for a preliminary ruling from the Consiglio di Stato: ATI EAC Srl e Viaggi di Maio Snc and Others v ACTV Venezia SpA and Others (Public service contracts — Directives 92/50/EEC and 93/38/EEC — Award criteria — The economically most advantageous tender — Observance of award criteria set out in the contract documents or the contract notice — Establishment of subheadings for one of the award criteria in the contract documents or the contract notice — Decision to apply weighting — Principles of equal treatment of tenderers and transparency)
Date: 2006-02-25
Institutions: Court of Justice
Subjects: administrative procedure, award of contract, interpretation of the law, invitation to tender, provision of services, public contract, tendering

C 48/8

EN

Official Journal of the European Union

25.2.2006

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 1 December 2005

in Case C-309/04 Reference for a preliminary ruling from
the Bundesfinanzhof Fleisch-Winter GmbH & Co. KG v
Hauptzollamt Hamburg-Jonas (1)

(Export refunds — Condition for grant — Beef and veal —
Regulation (EEC) No 3665/87 — Bovine spongiform ence-
phalopathy — Export ban — Sound and fair marketable
quality — Export declaration — National application for a
payment — Sanction)

(2006/C 48/15)

(Language of the case: German)

In Case C-309/04: reference for a preliminary ruling under
Article 234 EC from the Bundesfinanzhof (Germany), made by
Decision of 20 April 2004, received at the Court on 21 July
2004, in the proceedings pending before that court between
Fleisch-Winter GmbH & Co. KG and Hauptzollamt Hamburg-
Jonas — the Court: (First Chamber) composed of P. Jann, Presi-
dent of the Chamber, N. Colneric, J.N. Cunha Rodrigues, E.
Juhász and E. Levits, Judges; P. Léger, Advocate General, K.
Sztranc, Registrar, gave a judgment on 1 December 2005, the
operative part of which is as follows:

1. Article 13 of Commission Regulation (EEC) No 3665/87 of 27
November 1987 laying down common detailed rules for the appli-
cation of the system of export refunds on agricultural products, as
amended by Commission Regulation (EC) No 2945/94 of 2
December 1994 must be interpreted as meaning that it precludes
beef that is subject to a ban, laid down by Community law, on
export from one Member State to other Member States and non-
member countries from being regarded as being of ‘sound and fair
marketable quality’ for the purpose of the payment of refunds, and
that the exporter must show that the exported product does not
originate in a Member State from which exports are banned,
where the national administration has evidence that the product is
subject to an export ban.

2. The assurance in a national request for payment that a product is
of ‘sound and fair marketable quality’, within the meaning of the
first sentence of Article 13 of Regulation No 3665/87, as
amended by Regulation No 2945/94, is not part of the informa-
tion provided pursuant to the combined provisions of the second
subparagraph of Article 11(1) and Article 3 of that regulation.
However, it may be regarded by the national court as evidence for
the purpose of determining the exporter's position.

(1) OJ C 239 of 25.04.2004.

(Second Chamber)

of 24 November 2005

in Case C-331/04 Reference for a preliminary ruling from
the Consiglio di Stato: ATI EAC Srl e Viaggi di Maio Snc
and Others v ACTV Venezia SpA and Others (1)

service

(Public
contracts — Directives 92/50/EEC and
93/38/EEC — Award criteria — The economically most
advantageous tender — Observance of award criteria set out
in the contract documents or the contract notice — Establish-
ment of subheadings for one of the award criteria in the
contract documents or the contract notice — Decision to
apply weighting — Principles of equal treatment of tenderers
and transparency)

(2006/C 48/16)

(Language of the case: Italian)

In Case C-331/04: REFERENCE for a preliminary ruling under
Article 234 EC from the Consiglio di Stato (Italy), made by
Decision of 6 April 2004, received at the Court on 29 July
2004, in the proceedings pending before that court between
ATI EAC Srl e Viaggi di Maio Snc and Others v ACTV Venezia
SpA and Others — the Court: (Second Chamber) composed of
C.W.A. Timmermans, President of the Chamber, C. Gulmann
(Rapporteur), R. Schintgen, G. Arestis and J. Klučka, Judges; D.
Ruiz-Jarabo Colomer, Advocate General; M. Ferreira, Principal
Administrator,
for the Registrar, gave a judgment on 24
November 2005, the operative part of which is as follows:

Article 36 of Council Directive 92/50/EEC of 18 June 1992 relating
to the coordination of procedures for the award of public service
contracts and Article 34 of Council Directive 93/38/EEC of 14 June
1993 coordinating the procurement procedures of entities operating in
the water, energy, transport and telecommunications sectors must be
interpreted as meaning that Community law does not preclude a jury
from attaching specific weight
to the subheadings of an award
criterion which are defined in advance, by dividing among those head-
ings the points awarded for that criterion by the contracting authority
when the contract documents or the contract notice were prepared,
provided that that decision:

— does not alter the criteria for the award of the contract set out in

the contract documents or the contract notice;

— does not contain elements which, if they had been known at the
time the tenders were prepared, could have affected that prepara-
tion;

25.2.2006

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Official Journal of the European Union

C 48/9

— was not adopted on the basis of matters likely to give rise to

discrimination against one of the tenderers.

3. Orders each of the parties to bear its or her own costs relating to
the present proceedings and to those brought before the Court of
First Instance of the European Communities.

(1) OJ C 239 of 25.09.2004.

(1) OJ C 251, 9.10.2004.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Second Chamber)

of 10 January 2006

(Sixth Chamber)

of 15 December 2005

in Case C-373/04 P: Commission of the European Commu-
nities v Mercedes Alvarez Moreno (1)

in Case C-33/05: Commission of the European Commu-
nities v Kingdom of Belgium (1)

(Appeal — Officials — Member of the auxiliary staff —
Conference interpreter — Action — Request pursuant to
Article 90(1) of the Staff Regulations — Measure adversely
affecting a person — Definition)

(Failure of a Member State to fulfil obligations — Directive
2000/60/EC — Community action in the field of water policy
— Failure to transpose within the period prescribed)

(2006/C 48/17)

(Language of the case: French)

(2006/C 48/18)

(Language of the case: French)

In Case C-373/04 P, appeal pursuant to Article 56 of the
Statute of the Court of Justice lodged on 27 August 2004 by
the Commission of the European Communities (Agents: D.
Martin and F. Clotuche-Duvieusart), the other party to the
proceedings being Mercedes Alvarez Moreno residing in Berlin
(Germany)
(Lawyers: G. Vandersanden and L. Levi) — the
Court (Second Chamber), composed of C. W. A. Timmermans,
President of the Chamber, J. Makarczyk, C. Gulmann, G. Arestis
Judges; C. Stix-Hackl, Advocate
(Rapporteur) and J. Klučka,
General; R. Grass, Registrar, has given a judgment on 10
January 2006, in which it:

1. Sets aside the judgment of the Court of First Instance of the Euro-
pean Communities of 10 June 2004 in Joined Cases T-153/01
and T-323/01 Alvarez Moreno v Commission in so far as it
declared that the action for annulment of the letter of Mr Walker
of 23 February 2001 was admissible and ordered the Commission
of
the costs
relating to the action in Case T-323/01;

the European Communities to pay the whole of

2. In Case T-323/01, dismisses the action for annulment of, first,
the letter of Mr Walker of 23 February 2001 and, second, the
decision of the Commission of the European Communities of 7
September 2001, rejecting Mrs Alvarez Moreno's complaint;

In Case C-33/05 Commission of the European Communities
(Agents: J. Hottiaux and S. Pardo Quintillán) v Kingdom of
Belgium (Agent: M. Wimmer) — ACTION for a declaration of
failure to fulfil obligations pursuant to Article 226 EC, brought
on 31 January 2005 — the Court (Sixth Chamber), composed
of J. Malenovský, President of the Chamber, J.-P. Puissochet and
A. Ó. Caoimh (Rapporteur), Judges; P. Léger, Advocate General;
R. Grass, Registrar, has given a judgment on 15 December
2005, in which it:

regulations and administrative provisions necessary

1. Declares that, by failing to adopt within the period prescribed the
laws,
to
comply with Directive 2000/60/EC of the European Parliament
and of the Council of 23 October 2000 establishing a framework
for Community action in the field of water policy, as regards the
Brussels-Capital Region, the Kingdom of Belgium has failed to
fulfil its obligations under that directive.

2. Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 82, 2.4.2005.