CELEX: 62001CC0448
Language: en
Date: 2003-02-27 00:00:00
Title: Opinion of Mr Advocate General Mischo delivered on 27 February 2003. # EVN AG and Wienstrom GmbH v Republik Österreich. # Reference for a preliminary ruling: Bundesvergabeamt - Austria. # 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. # Case C-448/01.

OPINION OF ADVOCATE GENERALMISCHO delivered on 27 February 2003  (1)
         Case C-448/01 EVN AG and Wienstrom GmbHvRepublik Österreich(Reference for a preliminary ruling from the Bundesvergabeamt (Austria))
            ((Public supply contracts – Directive 93/36/EEC – Award criterion giving preference to electricity from renewable energy sources – Admissibility – Directive 89/665/EEC – Review proceedings – Unlawful decisions – Possibility of setting aside only in the case of significant effect on the outcome of the award procedure – Illegality of an award criterion – Obligation to cancel the invitation to tender))
            
      
         
      1.  As a result of review proceedings initiated by a tenderer whose tender was rejected by the contracting authority and who contends
      that a criterion, relating to the supply of green electricity, for the award of a contract was unlawful, the Bundesvergabeamt
      (Federal Procurement Office) (Austria) has asked the Court to interpret Article 26 of Council Directive 93/36/EEC of 14 June
      1993 coordinating procedures for the award of public supply contracts  
      
         			(2)
         		 and Articles 1 and 2(1)(b) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations
      and administrative provisions relating to the application of review procedures to the award of public supply and public works
      contracts.  
      
         			(3)
         		 I ─ The legal context
      
      
      
      A ─
       The Community legislation
      
      2.  Article 26 of Directive 93/36 is headed  
      Criteria for the award of contracts and reads as follows: 
      1.  The criteria on which the contracting authority shall base the award of contracts shall be: ... 
      (b) or, when award is made to the most economically advantageous tender, various criteria according to the contract in question:
      e.g. price, delivery date, running costs, cost-effectiveness, quality, aesthetic and functional characteristics, technical
      merit, after-sales service and technical assistance.  
      
      
      2.  In the case referred to in point (b) of paragraph 1, the contracting authority shall state in the contract documents or in
      the contract notice all the criteria they intend to apply to the award, where possible in descending order of importance.
      
      
      3.  Article 1(3) of Directive 89/665 provides as follows:3. The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may
      establish, at least to any person having or having had an interest in obtaining a particular public supply or public works
      contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that
      the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his
      intention to seek review.
      
      4.  Article 2(1)(b) and Article 2(6) of Directive 89/665 provide as follows: 
      1.  The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision
      for the powers to: ...
      (b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical,
      economic or financial specifications in the invitation to tender, the contract documents or in any other document relating
      to the contract award procedure; 
      ...
      
      6.  The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall
      be determined by national law. Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after
      the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited
      to awarding damages to any person harmed by an infringement.
      
      
      5.  Article 3(2) of Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules
      for the internal market in electricity  
      
         			(4)
         		 reads as follows:Having full regard to the relevant provisions of the Treaty, in particular Article 90, Member States may impose on undertakings
      operating in the electricity sector, in the general economic interest, public service obligations which may relate to reliability,
      including reliability of supply, regularity, quality and price of supplies and to environmental protection. Such obligations
      must be clearly defined, transparent, non-discriminatory and verifiable; they, and any revision thereof, shall be published
      and notified to the Commission by Member States without delay. As a means of carrying out the abovementioned public service
      obligations, Member States which so wish may introduce the implementation of long-term planning.
      
      6.  The second recital of Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion
      of electricity produced from renewable energy sources in the internal electricity market  
      
         			(5)
         		 states that:The promotion of electricity produced from renewable energy sources is a high Community priority as outlined in the White
      Paper on Renewable Energy Sources ... for reasons of reliability and diversification of energy supply, of environmental protection
      and of social and economic cohesion. That was endorsed by the Council in its resolution of 8 June 1998 on renewable sources
      of energy.
      
      7.  The 12th recital of Directive 2001/77 states:The need for public support in favour of renewable energy sources is recognised in the Community guidelines for State aid
      for environmental protection, which, amongst other options, take account of the need to internalise external costs of electricity
      generation. However, the rules of the Treaty, and in particular Articles 87 and 88 thereof, will continue to apply to such
      public support.
      
      8.  According to the 18th recital of the same directive:It is important to utilise the strength of the market forces and the internal market and make electricity produced from renewable
      energy sources competitive and attractive to European citizens.
      
      9.  The purpose of Directive 2001/77 is, according to Article 1 thereof:to promote an increase in the contribution of renewable energy sources to electricity production in the internal market for
      electricity and to create a basis for a future Community framework thereof.
      
      10.  Article 3(1) of the same directive provides as follows:Member States shall take appropriate steps to encourage greater consumption of electricity produced from renewable energy
      sources in conformity with the national indicative targets referred to in paragraph 2. These steps must be in proportion to
      the objective to be attained.
      
      11.  Article 3(2) of Directive 2001/77 provides that each Member State is to set national indicative targets.
      
      12.  Article 3(4) of the same directive provides that, on the basis of the Member States' reports, the Commission is to assess
      whether the national indicative targets are consistent with the global indicative target of 12% of gross national energy consumption
      by 2010 and in particular with the 22.1% indicative share of electricity produced from renewable energy sources in total Community
      electricity consumption by 2010.
      
      13.  Article 5(1) of Directive 2001/77, entitled  
      Guarantee of origin of electricity produced from renewable energy sources, provides that:Member States shall, not later than 27 October 2003, ensure that the origin of electricity produced from renewable energy
      sources can be guaranteed as such within the meaning of this Directive according to objective, transparent and non-discriminatory
      criteria laid down by each Member State. They shall ensure that a guarantee of origin is issued to this effect in response
      to a request.
      
      
      
      B ─
       The national legislation
      
      14.  In Austria the conclusion of public contracts is governed by the Bundesvergabegesetz (Federal Procurement Law,  
       Bundesgesetzblatt für die Republik Österreich  I, 1997/56,  
      the BVergG).
      
      15.  Paragraph 117 of the BVergG provides as follows: 
      1.  The Bundesvergabeamt shall set aside, by way of administrative decision, taking into account the opinion of the Conciliation
      Committee in the case, any decision of the contracting authority in an award procedure where the decision in question:
      (1) is contrary to the provisions of this Federal Law or its implementing regulations and 
      
      (2) significantly affects the outcome of the award procedure.  
      
      
      2.  The setting aside of an unlawful decision may, in particular, take the form of the removal of discriminatory conditions for
      undertakings relating to technical, economic or financial specifications in the contract documents or in any other document
      relating to the contract award procedure.
      
      3.  After the award of the contract, the Bundesvergabeamt shall, in accordance with the conditions of subparagraph 1, determine
      only whether the alleged illegality exists or not.
      
       II ─ The main proceedings
      
      16.  The Republic of Austria, as the contracting authority (
      the defendant in the main proceedings), invited tenders for the supply of electricity in an open procurement procedure. The subject of the award was the conclusion
      of a framework agreement, followed by individual contracts, for the supply of electricity to all the Federal Republic's administrative
      offices in the  
       Land  of Carinthia. The contract period was from 1 January 2002 to 31 December 2003. The invitation to tender, which was published
      in the  
       Official Journal of the European Communities  on 27 March 2001, included the following provision under the heading  
      Award criteria:  The economically most advantageous tender according to the following criteria:effect of the services on the environment in accordance with the contract documents.
      
      17.  The tender had to state a price in ATS per kilowatt hour. This was to apply for the whole contract period and was not to be
      subject to escalation or adjustment. In addition to supplying electricity, the supplier was required to provide other services
      (in particular, to measure the electricity used by the Federal offices, to calculate the annual consumption, etc.). The supplier
      had to undertake to supply the Federal offices, so far as technically possible, with electricity from renewable energy sources
      and in any case not knowingly to supply electricity generated by nuclear fission. However, the supplier was not required to
      submit proof of his sources of supply. In the event of a breach of the undertaking to supply electricity from renewable energy
      sources or the undertaking not to supply electricity generated by nuclear fission, it would be open to the contracting authority
      to terminate the contract and to impose a penalty. 
      
      18.  In the introduction to the tender documents it was stated that the contracting authority was aware that for technical reasons
      no supplier could guarantee that the electricity he supplied to a particular customer had actually been generated from renewable
      sources. Nevertheless the authority had decided to contract with tenderers who could supply at least 22.5 gigawatt hours per
      annum of electricity generated from renewable sources. The annual consumption of the Federal offices to which the contract
      related had been estimated at approximately 22.5 gigawatt hours. However, any differences between this tentative figure and
      the quantity actually supplied would not affect the agreed price per kilowatt hour. 
      
      19.  It was specified as a particular ground for elimination that tenders would be eliminated if they did not contain proof that
       
      in the past two years and/or in the next two years the tenderer has generated or purchased, and/or will generate or purchase,
      and has supplied and/or will supply to final customers, at least 22.5 gigawatt hours per annum of electricity generated from
      renewable sources. The award criteria laid down were net price per kilowatt hour, which was given a weighting of 55%, and  
      electricity from renewable sources, which was given a weighting of 45%. As regards the latter criterion, it was stipulated that  
      only the amount of energy that can be supplied from renewable sources in excess of 22.5 gigawatt hours per annum will be taken
      into account.
      
      20.  The tenders were opened on 10 May 2001. Four tenders had been submitted. That of the Kärntner Elektrizitäts-Aktiengesellschaft/Stadtwerke
      Klagenfurt (
      KELAG) consortium stated a price of ATS 0.44 per kilowatt hour and, referring to a table showing the origin and the quantities
      of electricity generated or supplied by it, stated that it was able to supply an aggregate amount of renewable electricity
      of 3 406.2 gigawatt hours. Energie Oberösterreich AG also submitted a tender for a price of ATS 0.4191 per kilowatt hour if
      consumption exceeded 1 million gigawatt hours per annum and included a table for 1999 to 2002 showing the different amounts
      of electricity which could be supplied from renewable sources in each year in that period. The largest quantity shown was
      5 280 gigawatt hours per annum. A tender was also submitted by BEWAG, showing a price of ATS 0.465 per kilowatt hour and including
      a table showing the proportion of the total electricity generated or supplied by it which was accounted for by renewable energy.
      The contracting authority concluded from the table that the quantity stated was 449.2 gigawatt hours.
      
      21.  The last tender was submitted by a consortium consisting of EVN AG and Wienstrom GmbH (
      the applicants in the main proceedings), which offered a price of ATS 0.52 per kilowatt hour. This tender gave no specific figures for the amount of electricity
      which could be supplied from renewable energy sources, but merely stated that the applicants in the main proceedings had their
      own electricity generation plants in which they generated electricity from renewable energy sources in a quantity of many
      times the annual consumption shown in the invitation to tender, which was 22.5 gigawatt hours. In addition, they had option
      rights in respect of the electricity generated by hydroelectric power stations of Österreichische Elektrizitätswirtschafts-Aktiengesellschaft
      and other Austrian hydroelectric power stations, and other purchased energy derived mainly from long-term coordination contracts
      with the largest supplier of electricity certified as coming from renewable sources. In 1999 and 2000, only hydroelectric
      power from Switzerland was purchased and would continue to be purchased. In total, the quantity of electricity which would
      be supplied from renewable sources was many times greater than the amount which was the subject of the invitation to tender,
      and reference was made to the annual accounts for further information. 
      
      22.  The defendant in the main proceedings considered that, of the four tenders submitted, the best was that of KELAG, which received
      the most points for each of the two award criteria. The applicants in the main proceedings received the fewest points in respect
      of both criteria. 
      
      23.  After informing the contracting authority as early as 9 May and 30 May 2001 that they considered that various provisions of
      the invitation to tender, including the award criterion relating to  
      electricity generated from renewable energy sources, were unlawful, the applicants in the main proceedings applied on 12 June 2001 for conciliation proceedings before the Bundes-Vergabekontrollkommission
      (Federal Procurement Review Commission). The Commission refused to conduct conciliation proceedings on the ground that there
      was no prospect of success. 
      
      24.  The applicants then lodged an application for review with the Bundesvergabeamt. They asked for the various decisions to be
      set aside, in particular the decision rejecting the tender for want of information on the generation and purchase of electricity
      from renewable energy sources during a certain period, the decision prescribing as an award criterion the provision of information
      on the generation and purchase of electricity from renewable energy sources in a certain quantity during a certain period,
      and the decision prescribing as an award criterion the availability of more than 22.5 gigawatt hours of electricity from renewable
      sources. In addition, the applicants applied for an interim order prohibiting the contracting authority from awarding the
      contract. 
      
      25.  By decision of 16 July 2001 the Bundesvergabeamt granted the applicants' application and prohibited the award of the contract
      initially before 10 September 2001. On a further application by the applicants, the Bundesvergabeamt, by decision of 17 September
      2001, made an interim order authorising the contracting authority to award the contract on condition that the award would
      be withdrawn and the contract rescinded if even only one of the applications to the Bundesvergabeamt by the applicants were
      granted or if the decision to award the contract in question to one of the applicants' co-tenderers were found to be unlawful
      as a result of any other finding of the Bundesvergabeamt.
      
      26.  On 24 October 2001 the framework agreement was awarded to KELAG, subject to the conditions subsequent set out in the aforementioned
      decision.
       III ─ The questions referred
      
      27.  In order to determine the applications in the review proceedings for certain decisions of the contracting authority to be
      set aside, the Bundevergabeamt, by order of 13 November 2001, referred the following questions to the Court for a preliminary
      ruling: 
      1.  Do the provisions of Community law relating to the award of public contracts, in particular Article 26 of Directive 93/36/EEC,
      prohibit a contracting authority from laying down an award criterion in relation to the supply of electricity which is given
      a 45% weighting and which requires a tenderer to state, without being bound to a defined supply period, how much electricity
      he can supply from renewable sources to a group of consumers not more closely defined, where the maximum number of points
      is given to whichever tenderer states the highest amount and a supply volume is taken into account only to the extent that
      it exceeds the volume of consumption to be expected in the context of the contract to which the invitation to tender relates?
      
      
      2.  Do the provisions of Community law relating to the award of public contracts, in particular Article 2(1)(b) of Directive 89/665/EEC,
      prohibit making the setting aside of an unlawful decision in review proceedings under Article 1 of Directive 89/665/EEC dependent
      on proof that the unlawful decision was material to the outcome of the procurement procedure? 
      
      3.  Do the provisions of Community law relating to the award of public contracts, in particular Article 26 of Directive 93/36/EEC,
      prohibit making the setting aside of an unlawful decision in review proceedings under Article 1 of Directive 89/665/EEC dependent
      on proof that the unlawful decision was material to the outcome of the procurement procedure, where that proof has to be achieved
      by the review body examining whether the ranking of the tenders actually submitted would have been different had they been
      re-evaluated disregarding the unlawful award criterion? 
      
      4.  Do the provisions of Community law relating to the award of public contracts, in particular Article 26 of Directive 93/36/EEC,
      require the contracting authority to cancel the invitation to tender if it transpires in review proceedings under Article
      1 of Directive 89/665/EEC that one of the award criteria it laid down is unlawful?
      
       IV ─ Discussion
      
      
      
      A ─
       The Court's jurisdiction to reply to the questions
      
      28.  In its written observations, the Commission is uncertain as to whether the Court of Justice has jurisdiction to reply to the
      questions referred to it, in view of the fact that, according to the Commission, decisions of the Bundesvergabeamt are not
      of the nature of judgments.
      
      29.  In this connection I refer to paragraphs 18 to 26 of my opinion in Case C-249/01  
       Hackermüller ,  
      
         			(6)
         		 in which I took the view, after examining the same question, that the Bundesvergabeamt must be deemed a court or tribunal
      within the meaning Article 234 EC if it exercises its powers before the award of the contract, as in the present case. 
      
      30.  Therefore I consider that the Court has jurisdiction to reply to the questions submitted by the Bundesvergabeamt.
      
      
      
      B ─
       The first question
      
      31.  The first question asked by the Bundesvergabeamt is whether the provisions of Community law relating to the award of public
      contracts, in particular Article 26 of Directive 93/36/EEC, prohibit a contracting authority from laying down an award criterion
      in relation to the supply of electricity which is given a 45% weighting and which requires a tenderer to state, without being
      bound to a defined supply period, how much electricity he can supply from renewable sources to a group of consumers not more
      closely defined, where the maximum number of points is given to whichever tenderer states the highest amount and a supply
      volume is taken into account only to the extent that it exceeds the volume of consumption to be expected in the context of
      the contract to which the invitation to tender relates.
      
      32.  It appears from the observations in the order for reference that this question summarises a number of problems confronting
      the Bundesvergabeamt. Therefore I propose to deal with them in the order in which they arise.
      
      1. Admissibility of criteria for obtaining advantages not susceptible of direct financial evaluation
      
      33.  First of all, the Bundesvergabeamt questions whether the Community law of public contracts permits the contracting authority
      to lay down criteria seeking to obtain advantages not susceptible of direct financial evaluation, such as respect for the
      environment. The Bundesvergabeamt has certain doubts on this point in view of the fact that, according to its findings, the
      Commission considers that an award criterion must procure a direct economic advantage to the contracting authority.
      
      34.  It must be observed that, since the Bundesvergabeamt formulated its question and the interveners submitted their written observations,
      the Court has stated its position on this point in the judgment of 17 September 2002 in Case C-513/99 C
       oncordia Bus Finland .  
      
         			(7)
         		
      35.  In paragraph 69 of that judgment the Court held that  
      where ... the contracting authority decides to award a contract to the tenderer who submits the economically most advantageous
      tender, it may take into consideration ecological criteria ... provided that they are linked to the subject-matter of the
      contract, do not confer an unrestricted freedom of choice on the authority, are expressly mentioned in the contract documents
      or the tender notice, and comply with all the fundamental principles of Community law, in particular the principle of non-discrimination.
      
      36.  In addition, in paragraph 55 of the same judgment, the Court expressly found that Article 36(1)(a) of Council Directive 92/50/EEC
      of 18 June 1992 relating to the coordination of procedures for the award of public service contracts,  
      
         			(8)
         		 the text of which is in substance the same as that of Article 26(1)(b) of Directive 93/36,  
      cannot be interpreted as meaning that each of the award criteria used by the contracting authority to identify the most economically
      advantageous tender must necessarily be of a purely economic nature ....
      
      37.  Therefore, subject to the conditions formulated by the Court which are set out above, it is lawful for a contracting authority
      to include in an invitation to tender award criteria relating to the environment. There is no doubt that the supply of green
      electricity can be described as such a criterion, which is confirmed by the judgment in Case C-379/98  
       PreussenElektra ,  
      
         			(9)
         		 according to which  
      the use of renewable energy sources for producing electricity ... is useful for protecting the environment in so far as it
      contributes to the reduction in emissions of greenhouse gases which are amongst the main causes of climate change which the
      European Community and its Member States have pledged to combat.  
      
         			(10)
         		
      2. Verification by the contracting authority of the question whether a tender meets the award criterion formulated in the invitation
      to tender
      
      38.  Secondly, according to the Bundesvergabeamt, a problem arises with regard to the way in which the contracting authority has
      specifically formulated the criterion of  
      renewable energy. The Bundesvergabeamt observes that the authority itself admitted that it was unable to check technically whether the electricity
      supplied was actually generated from renewable energy sources. In those circumstances, the question had to be asked whether
      the contracting authority was permitted to lay down an award criterion where it was impossible to ascertain whether that criterion
      enabled the desired objective to be attained. 
      
      39.  The Netherlands Government alone expressly discusses this problem raised by the Bundesvergabeamt. According to that government,
      the provisions of Community law applying to the procedures for the award of contracts require a contracting authority to use
      only award criteria which permit the accuracy of the information given by suppliers regarding the award criteria to be actually
      checked. 
      
      40.  I concur with the Netherlands Government's position.
      
      41.  As the Netherlands Government points out,  
      [if] a contracting authority were permitted to prescribe award criteria while at the same time stating that it was neither
      willing nor able to verify whether the suppliers presented correct information on that subject in their tenders, the authority's
      decision-making process could not take place in an objective and transparent manner. ... Such a method of awarding a contract
      would be contrary to the general principles of the law of public contracts, as recognised by the Court in its case law, in
      particular the principles of equality and transparency, and the prohibition of arbitrary decisions.
      
      42.  On this point reference may be made to the judgment in Case C-243/89  
       Commission  v  
       Denmark, 
         			(11)
         		 where the Court observed that  
      observance of the principle of equal treatment of tenderers requires that all the tenders comply with the tender conditions
      so as to ensure  
       an objective comparison  of the tenders submitted by the various tenderers.  
      
         			(12)
         		
      43.  In the same way, in the judgment in Case C-19/00  
       SIAC Construction   
         			(13)
         		 the Court observed that  
         when tenders are being assessed, the award criteria must be applied objectively and uniformly to all tenderers.   
         			(14)
         		
      44.   It seems to me that there is no guarantee that an award criterion will be applied objectively and uniformly to all tenderers
         if the contracting authority indicates in the invitation to tender that it will not check whether the tenderers actually meet
         that criterion. 
      
      45.   Certainly it is not easy to establish the source of the electricity supplied to consumers because they have no means of knowing
         whether the current from the socket is generated from renewable energy sources or not. 
      
      46.   This difficulty was recognised by the Court in the  
          PreussenElektra   judgment cited above, at paragraph 79 of which the court observed that  
         the nature of electricity is such that, once it has been allowed into the transmission or distribution system, it is difficult
         to determine its origin and in particular the source of energy from which it was produced. 
      
      47.   However, the Court added, at paragraph 80 of the same judgment, that  
         in that respect, the Commission took the view, in its proposal for a Directive 2000/C 311 E/22 of the European Parliament
         and of the Council on the promotion of electricity from renewable energy sources in the internal electricity market (OJ 2000
         C 311 E, p. 320), submitted on 31 May 2000 [which has in the meantime become Directive 2001/77] that the implementation in
         each Member State of a system of certificates of origin for electricity produced from renewable sources, capable of being
         the subject of mutual recognition, was essential in order to make trade in that type of electricity both reliable and possible
         in practice. 
      
      48.   It follows that, even though it is not easy to determine the source of the electricity supplied, there are means of doing
         so, for example, by requiring certificates or, as the Netherlands Government observes,  
         by requiring tenderers to prove the quantity of electricity which is generated or purchased by them and comes from renewable
         sources, as well as the quantity from renewable sources which is intended, in accordance with the contracts they have made,
         for customers other than the contracting authority. 
      
      3. The causal connection between the award criterion and the contracting authority's purpose 
      
      49.   Thirdly, according to the Bundesvergabeamt,  
         there is a further problem with regard to the award criterion laid down. Since all that is evaluated is the amount of electricity
         which can be supplied from renewable sources, whereas how far the actual recipient of the award, on the basis of his generation
         structure, in fact contributes to  
          increasing the generation of electricity from renewable sources   is not examined, it appears questionable whether the purpose pursued by the authority can be achieved at all by means of this
         award criterion. It is certainly conceivable that the amount of electricity generated from renewable sources is not influenced
         at all by this award criterion, since it is entirely up to the award recipient whether he generates such electricity himself
         or purchases it from other sources.   
         			(15)
         		
      50.   On this point, as the Netherlands Government, which is the only participant in these proceedings to state its position on
         this problem raised by the Bundesvergabeamt, rightly observes, given the nature of the service to be provided, namely the
         supply of electricity from renewable sources, it is immaterial whether the supplier generates it himself or purchases it from
         other suppliers of the same kind of electricity. Electricity from a renewable source is by nature comparable, whether it is
         generated by the supplier or by a third party. 
      
      51.   I also consider that the fact that the award criterion does not, according to the findings of the Bundesvergabeamt, permit
         the purpose pursued by the contracting authority, namely increasing the generation of electricity from renewable energy sources,
         to be achieved, is not in itself evidence that that criterion is contrary to the Community legislation on public contracts. 
      
      52.   Even if the aims relating to the protection of the environment pursued by the contracting authority by including that criterion
         are not achieved, it does not follow that an environmental criterion in an invitation to tender would be unlawful. 
      
      4. The connection between the award criterion and the subject-matter of the contract
      
      53.   Fourth, according to the Bundesvergabeamt,  
         since the criterion in question was concerned only with how much could be supplied, and not how much could be supplied to
         the authority ─ in this regard the authority committed itself exclusively to electricity from renewable sources in any case
         ─ it appears questionable whether there are any direct economic advantages for the authority linked to such an award criterion. 
      
      54.   The question of the connection between the award criterion and the subject-matter of the contract has been discussed at length
         by the participants in these proceedings.  
      
      55.   The defendant in the main proceedings and the Austrian Government consider that, when determining the most economically advantageous
         tender in the award procedure in question, by taking into account, in addition to the price, the amount of green electricity
         which each tenderer was able to supply over and above 22.5 gigawatt hours, which had to be supplied in any case, the contracting
         authority gave the reliability of supply of electricity of a particular quality the status of an award criterion.  
      
      56.   On this point the Austrian Government observes that, the greater the amount of power available to an undertaking, the greater
         the reliability of supply, thus guaranteeing supply of the amount required during periods of peak demand on the electricity
         network or when there is a large temporary rise in consumption by the electricity buyer. 
      
      57.   According to the same Government, supported by the defendant in the main proceedings, the reliability of supply as such is
         certainly a criterion which has some bearing upon the contract, but rather an economic criterion: the more efficient a tenderer
         is, the smaller the risk that the contracting authority's demand for electricity will not be met and that it will have to
         find a costly alternative in the short term. 
      
      58.   According to the Swedish Government, it does not appear from the actual wording of Directive 93/36 or from the case-law that
         the contracting entity must itself derive an economic advantage from the award criteria which it applies. The criteria laid
         down in the invitation to tender were, according to the same Government, likely to promote the generation of electricity from
         renewable energy sources, which results in advantages in the form of a smaller impact on the environment and thus to a better
         environment for everyone. This creates the conditions for lasting development, according to the same Government. 
      
      59.   On the other hand, the applicants in the main proceedings, the Netherlands Government and the Commission consider that, in
         so far as the award criterion stipulates that only the amount of energy supplied from renewable sources in excess of 22.5
         gigawatt hours per annum, which is the estimated annual consumption of the Federal offices covered by the contract, is to
         be taken into account, that criterion is contrary to Directive 93/36 because there is not a sufficient connection between
         that criterion and the subject-matter of the contract. 
      
      60.   According to the applicants in the main proceedings, in fact the award criterion in question grades the tenderers' capacity
         to supply as much electricity as possible from renewable energy sources and, in that way, ultimately ranks the tenderers themselves.
         In fact, therefore, the criterion was a disguised criterion of selection. 
      
      61.   How much weight should be attached to these arguments? 
      
      62.   First of all, it is no doubt true, as the defendant in the main proceedings and the Austrian Government correctly observe,
         that in the judgment in Case C-324/93  
          Evans Medical and Macfarlan Smith,  
         			(16)
         		 the Court stated that  
         reliability of supplies is one of the criteria which may be taken into account ... in order to determine the most economically
         advantageous tender .... 
      
      63.   However, the question whether the criterion in the present case aims to ensure the reliability of supply is a question of
         fact which must be settled by the national court. 
      
      64.   The order of the Bundesvergabeamt makes no reference to the fact that this criterion should in reality be understood as seeking
         to ensure the reliability of supply. In the following discussion, therefore, I shall proceed on the assumption that the criterion
         in question does not have that purpose.  
      
      65.   Consequently the question arises of whether Directive 93/36 requires a connection between the award criterion and the subject-matter
         of the contract. 
      
      66.   In my opinion in the  
          Concordia Bus Finland   case, cited above, referring to the judgment in Case C-225/98  
          Commission   v  
          France   ,   
         			(17)
         		 in which the Court found that an award criterion relating to employment, connected with a local campaign against unemployment,
         was in principle valid, I said that such a requirement was not apparent.   
         			(18)
         		
      67.   However, in the  
          Concordia Bus Finland   judgment, cited above, the Court expressed its clear opinion on that question when it observed, in paragraph 69, that  
         the contracting authority ... may take into consideration ecological criteria  
          ... provided that they are linked to the subject-matter of the contract   ....   
         			(19)
         		
      68.   As the applicants in the main proceedings, the Netherlands Government and the Commission rightly observe, an award criterion
         consisting in allotting points for the amount of electricity generated from renewable energy sources which the tenderer will
         be able to supply to a group of consumers not more closely defined, account being taken only of the supply volume exceeding
         the consumption to be expected in the context of the invitation to tender, is not connected with the subject-matter of the
         contract. It is clear from the very wording of this criterion that it does not relate specifically to the actual subject-matter
         of the contract.  
      
      69.   In my opinion, therefore, such a criterion is contrary to the requirements arising from Directive 93/36. 
      
      70.   In addition, in the present it seems to me that it may give rise to discrimination between suppliers, in particular between
         small suppliers and large suppliers.  
      
      71.   Let us suppose there are two suppliers who are able to supply the amount of electricity which is the subject of the contract,
         namely approximately 22.5 gigawatt hours per annum of green electricity. One is a small supplier specialising in green electricity
         for whom the contract in question is an important one. The other is a very large supplier for which green electricity is only
         a small part of its business but which nevertheless, by virtue of its size, is capable of supplying more green electricity
         than the small supplier. By definition, the contract in question is only a small contract for the very large supplier. 
      
      72.   This example, although hypothetical, shows that, of the two suppliers who are perfectly capable of fulfilling the contract
         conditions, in reality the criterion in question only favours the large supplier because of its size. However, the size of
         an undertaking is not in itself an objective reason justifying a difference in the treatment of two tenderers who are able
         to fulfil the conditions connected with the subject of a contract.  
      
      5. The contracting authority's omission to specify, in the invitation to tender, the period for which tenderers must state in
      their tenders the amount of electricity from renewable sources which they can supply 
      
      73.   Fifth, the Bundesvergabeamt finds that  
         the contracting authority omitted to fix any specific supply period for which the amount that could be supplied was to be
         stated. The Bundesvergabeamt concludes from this that  
         it appears that the criterion laid down was not at all open to exact examination and allowed the authority too wide a discretion,
         that is to say it was incompatible with the principle of comparability of tenders, which derives from the requirement of transparency. 
      
      74.   As the Netherlands Government, which is the only intervener to comment expressly on this point, correctly observes, the tenderers
         must be informed in advance of the award criteria chosen by the contracting authority and the criteria must be formulated
         in such a way that the different tenders can be compared fairly and objectively. 
      
      75.   In this connection, reference may be made to the  
          SIAC Construction   judgment cited above, in paragraph 42 of which the Court observed that  
         the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably
         well-informed and normally diligent tenderers to interpret them in the same way. 
      
      76.   It is for the national court to determine whether, having regard to all the documents submitted in the main proceedings, the
         award criteria of the contract in question meet that requirement. 
      
      6. The 45% weighting given to the award criterion
      
      77.   Finally, according to the Bundesvergabeamt,  
         it appears that giving the disputed criterion a weighting of 45% is problematic, since it could be objected that the authority
         must not permit considerations not open to monetary evaluation to influence the award decision to such a degree. 
      
      78.   On this point I consider that, provided that the authority applies valid criteria, it is free to decide on the weighting of
         those criteria, as the defendant in the main proceedings observes.  
      
      79.   In paragraph 42 of the  
          Evans Medical and Macfarlan Smith   judgment, cited above, the Court stated that  
         in selecting the most economically advantageous tender, contracting authorities may choose the criteria which they intend
         to apply, but their choice may relate only to criteria designed to identify the most economically advantageous tender. 
      
      80.   If the contracting authority is free to choose the award criteria, I think it is also free to choose the weighting between
         them, provided that the weighting aims to identify the most economically advantageous tender. 
      
      7. Conclusion relating to the first question
      
      81.   Taking account of the foregoing, I propose that the reply to the first question from the Bundesvergabeamt should be that the
         provisions of Community law relating to the award of public contracts, in particular Article 26 of Directive 93/36, prohibit
         a contracting authority from laying down an award criterion in relation to the supply of electricity which is given a 45%
         weighting and which requires a tenderer to state, without being bound to a defined supply period, how much electricity he
         can supply from renewable sources to a group of consumers not more closely defined, where the maximum number of points is
         given to whichever tenderer states the highest amount and a supply volume is taken into account only to the extent that it
         exceeds the volume of consumption to be expected in the context of the contract to which the invitation to tender relates. 
      
      
      
      C ─
        The second question 
      
      82.   The second question from the Bundesvergabeamt is whether the provisions of Community law relating to the award of public contracts,
         in particular Article 2(1)(b) of Directive 89/665, prohibit making the setting aside of an unlawful decision in review proceedings
         under Article 1 of Directive 89/665 dependent on proof that the unlawful decision was material to the outcome of the procurement
         procedure. 
      
      83.   With regard to this question, the Bundesvergabeamt observes that the national provision which it must apply in the review
         proceedings  
         does not permit the Bundesvergabeamt to set aside a decision by the authority merely on the ground that it regards it as unlawful.
         Instead, the relevant provision, Paragraph 117(1)(2) of the BVergG, requires that the decision contested in review proceedings
         must also have been of material influence for the outcome of the procurement procedure. The Bundesvergabeamt is uncertain whether such a condition is consistent with Community law. 
      
      84.   On this point it must be observed, as the Austrian Government points out, that the national provision concerned relates to
         the question of under what conditions a decision by the contracting authority may be set aside, and not the question, governed
         by Article 1(3) of Directive 89/665, of the conditions under which a tenderer may seek a review.  
      
      85.   Secondly, as the Austrian Government rightly notes, Directive 89/665, and in particular Article 2(1)(b),   
         			(20)
         		 does not lay down such conditions for setting aside a decision. Specifically, the directive does not state whether the setting
         aside of an unlawful decision in the context of review proceedings under Article 1 of the same directive may be subject to
         a requirement of proof that the unlawful decision materially affected the outcome of the award procedure. 
      
      86.   It is clear from the judgments in Case C-92/00  
          Hospital Ingenieure  
         			(21)
         		 and Case C-470/99  
          Universale-Bau and Others  
         			(22)
         		 that Community law does not in principle prevent national law from regulating aspects of the review procedure which are not
         provided for by the directive,  
         provided that the relevant national rules are not less favourable than those governing similar domestic actions (principle
         of equivalence) and that they do not make it practically impossible or excessively difficult to exercise rights conferred
         by Community law (principle of effectiveness) (see, by analogy, Case C-390/98  
          Banks  [2001] ECR I-6117, paragraph 121; Case C-453/99  
          Courage and Crehan  [2001] ECR I-6297, paragraph 29).   
         			(23)
         		
      87.   Consequently the national court must ascertain whether, taking account of the circumstances of the case, the abovementioned
         condition is less favourable than that concerning similar domestic actions and whether it makes it practically impossible
         or excessively difficult to exercise rights conferred by the Community legal order. 
      
      88.   I therefore propose that the reply to the second question should be that the provisions of Community law relating to the award
         of public contracts, in particular Article 2(1)(b) of Directive 89/665, do not prohibit making the setting aside of an unlawful
         decision in review proceedings under Article 1 of Directive 89/665 dependent on proof that the unlawful decision was material
         to the outcome of the procurement procedure, provided that such condition is not less favourable than that applying to similar
         domestic actions (principle of equivalence) and that it does not make it practically impossible or excessively difficult to
         exercise rights conferred by Community law (principle of effectiveness). 
      
      
      
      D ─
        The third question 
      
      89.   The third question from the Bundesvergabeamt is whether the provisions of Community law relating to the award of public contracts,
         in particular Article 26 of Directive 93/36, prohibit making the setting aside of an unlawful decision in review proceedings
         under Article 1 of Directive 89/665 dependent on proof that the unlawful decision was material to the outcome of the procurement
         procedure, where that proof has to be achieved by the review body examining whether the ranking of the tenders actually submitted
         would have been different had they been re-evaluated disregarding the unlawful award criterion. 
      
      1. Comments of the Bundesvergabeamt 
      
      90.   Regarding this question, the Bundesvergabeamt observes that  
         the legislative materials required to be taken account under the national approach to interpretation indicate that the question
         as to whether a contested decision of an authority was material for the outcome of the award procedure is to be examined by
         the review body by determining whether the award would have been made to a different tenderer had the authority proceeded
         lawfully. 
      
      91.   According to the Bundesvergabeamt, this means that  
         the review body ought to have ignored the award criterion held to be unlawful and examined the tenders actually submitted
         by reference to the remaining award criteria and decided whether this results in a different ranking from that following the
         examination carried out by the authority. 
      
      92.   However, the Bundesvergabeamt is uncertain as to whether that approach is compatible with Community law. It observes that
          
         on the approach evidently required by domestic law, the award decision would be made in the review proceedings, and in that
         case the tenders would be evaluated on the basis of a weighting of criteria which had not been notified to the tenderers and
         which they accordingly could not take into account in drawing up their tenders. This result ... appears to be incompatible
         with Article 26(2) of Directive 93/36, especially as a tenderer could legitimately argue that, if he had known that a different
         weighting of the criteria would be applied (in the present case 100% price instead of 55% price), he would accordingly have
         drawn up his tender in a different way. 
      
      93.   If this reasoning must be accepted, the only alternative, according to the Bundesvergabeamt, seems to be  
         cancellation of the invitation to tender, since otherwise the invitation to tender would be conducted on the basis of a weighting
         of criteria which was neither laid down by the authority nor notified to the tenderers. 
      
      2. The parties' submissions
      
      94.   In their written observations, the defendant in the main proceedings and the Austrian Government do not share the doubts of
         the Bundesvergabeamt as to whether the approach described by it is compatible with Community law. 
      
      95.   The defendant in the main proceedings maintains that a breach of the rules concerning the award of public contracts which
         does not result in a different ranking of tenders in no way affects the choice of the best tender. However, according to the
         Austrian Government, if the choice of the best tender is not affected, a tenderer who seeks a judicial review will obtain
         neither the contract nor compensation. 
      
      96.   The same Government adds that disregarding the criterion in question would not have altered the award procedure in any way.
         The reason was that KELAG had also offered by far the lowest price.  
      
      97.   The Austrian Government contends that it is impossible to see why review proceedings should take place at the request of a
         tenderer whose ranking gave no grounds for hope and where the alleged irregularity in the award procedure did not mean in
         any case that he or any other third parties concerned would have been given a higher ranking even if the award procedure had
         been properly conducted. 
      
      98.   At the hearing, however, the Austrian Government asserted that the Bundesvergabeamt had raised the third question on the basis
         of an Austrian provision which had been repealed several years previously and that, in substance, the Government agreed with
         the view expressed by the Commission. 
      
      99.   The Commission and the applicants in the main proceedings consider that the approach described by the Bundesvergabeamt is
         contrary to Community law. 
      
      100.   The applicants contend that to ignore a prescribed award criterion, even if it is unlawful, is to disregard the central principles
         of Community law on the award of public contracts, such as publicity and transparency.  
      
      101.   The Commission observes that the third question should not arise because neither the contracting authority nor the review
         body could change the award criteria after they had been notified. 
      
      102.   The Swedish and the Netherlands Governments did not comment on this question. 
      
      3. Assessment
      
      103.   Let me begin by noting that the Austrian Government's remark that the Bundesvergabeamt had raised the third question on the
         basis of an Austrian provision which had been repealed several years previously should not prevent the Court from replying
         to the question. 
      
      104.   It has consistently been held that it is solely for the national court to determine the relevance of the questions which it
         submits to the Court.   
         			(24)
         		
      105.   Secondly, taking account of the Bundesvergabeamt's observations and my proposed reply to the second question, I consider that
         the third question must be understood as asking, in substance, whether a rule of domestic law, such as Paragraph 117 of the
         BVergG, which, in order for an unlawful decision in review proceedings to be set aside, requires proof that the decision materially
         affected the outcome of the award procedure, conflicts with the principle of effectiveness in so far as that rule requires
         the national court to ascertain whether the ranking of the tenders actually submitted would be different if they were re-evaluated
         without regard to the unlawful award criterion. 
      
      106.   I think the reply to this question must be in the affirmative. 
      
      107.   As the Commission rightly points out, the Court made the following observations in the  
          SIAC Construction   judgment cited above:  
      
      41
         
        ... [T]he principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified
         (see, by analogy, Case C-275/98  
          Unitron Scandinavia and 3-S   [1999] ECR I-8291, paragraph 31).   
      
      
      42
         
        More specifically, this means that the award criteria must be formulated, in the contract documents or the contract notice,
         in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way.
           
      
      
      43
         
        This obligation of transparency also means that the adjudicating authority must  
          interpret the award criteria in the same way throughout the entire procedure   (see, along these lines, Case C-87/94  
          Commission   v  
          Belgium   , cited above, paragraphs 88 and 89) 
       .   
         			(25)
         		
      108.   It follows that, with all the more reason,  
          the award criteria must be interpreted in the same way throughout the entire procedure   in order to uphold the principle of equal treatment. 
      
      109.   In so far as it is based on the principle of equal treatment, this reasoning cannot be called into question by the Austrian
         Government's reference, in its written observations, to the French and English versions of Article 26(2) of Directive 93/36,
           
         			(26)
         		 from which it is said to follow that alteration of the award criteria in the course of the procedure cannot in principle be
         ruled out. 
      
      110.   The provision that the award criteria are not to be altered in the course of the procedure will not be fulfilled if the review
         body which is required to establish whether the conditions for setting aside a decision are fulfilled, carries out a re-evaluation
         of the tenders without regard to one of the award criteria.  
      
      111.   In reality, this approach amounts to altering the criteria as laid down by the adjudicating authority, and this cannot be
         presumed to have no effect on the situation of the different tenderers.  
      
      112.   On this point, as the Bundesvergabeamt and the applicants in the main proceedings correctly observe, if the award criteria
         formulated in the invitation to tender had been other than those actually shown in it, a tenderer who requested a review and
         the other tenderers as well could have submitted a different tender. In the present case, as the Bundesvergabeamt rightly
         points out, it was entirely conceivable that a tenderer who wanted to score points on the basis of the renewable source criterion
         would have tendered a lower price if he had known that ultimately the price criterion alone would be applied. 
      
      113.   I therefore propose that the reply to the third question should be that the provisions of Community law relating to the award
         of public contracts, in particular Article 26 of Directive 93/36, prohibit making the setting aside of an unlawful decision
         in review proceedings under Article 1 of Directive 89/665 dependent on proof that the unlawful decision was material to the
         outcome of the procurement procedure, where that proof has to be achieved by the review body examining whether the ranking
         of the tenders actually submitted would have been different had they been re-evaluated disregarding the unlawful award criterion. 
      
      
      
      E ─
        The fourth question 
      
      114.   The fourth question from the Bundesvergabeamt is whether the provisions of Community law relating to the award of public contracts,
         in particular Article 26 of Directive 93/36, require the contracting authority to cancel the invitation to tender if it transpires
         in review proceedings under Article 1 of Directive 89/665 that one of the award criteria it laid down is unlawful. 
      
      115.   It is clear from the Bundesvergabeamt's observations concerning the third question that the third and the fourth questions
         are closely connected in that, in the Bundesvergabeamt's opinion, if the third question receives a reply in the affirmative,
         that would automatically lead to the same reply to the fourth. 
      
      116.   The interveners who have commented on this question have also proposed that the reply be the same as that to the third question. 
      
      117.   For my part, I think the fourth question must be reworded if it is to receive a helpful reply. 
      
      118.   The mere fact that, in review proceedings under Article 1 of Directive 89/665, one of the award criteria is found to be unlawful
         cannot lead to the conclusion that the contracting authority must withdraw the invitation to tender. 
      
      119.   As the defendant in the main proceedings and the Austrian Government correctly observed at the hearing, if a review is requested
         after the conclusion of the contract and if a Member State exercises its power under the second subparagraph of Article 2(6)
         of Directive 89/665,   
         			(27)
         		 a finding, in the course of the review proceedings, that an award criterion is unlawful will not lead to the withdrawal of
         the invitation to tender, but only to compensation for the rejected tenderer.  
      
      120.   The question which arises is therefore whether the provisions of Community law relating to the award of public contracts,
         in particular Article 26 of Directive 93/36, require the contracting authority to cancel the invitation to tender if it transpires
         in review proceedings under Article 1 of Directive 89/665 that one of the award criteria it laid down is unlawful  
          and is therefore set aside by the review body.  
      
      121.   If worded in this way, I think the question must be answered in the affirmative. 
      
      122.   As is clear from the discussion of the third question, the award criteria must remain the same throughout the entire tendering
         procedure. Therefore a contracting authority cannot continue the procedure if an award criterion is set aside by a review
         body. 
      
      123.   Consequently I propose that the reply to the fourth question should be that the provisions of Community law relating to the
         award of public contracts, in particular Article 26 of Directive 93/36, require a contracting authority to cancel the invitation
         to tender if it transpires in review proceedings under Article 1 of Directive 89/665 that one of the award criteria it laid
         down is unlawful and is therefore set aside by the review body. 
        V ─ Conclusion
      
      124.  Having regard to the foregoing observations, I propose that the following replies be given to the questions from the national
      court:
      
      
      ─
         First question
      
      The provisions of Community law relating to the award of public contracts, in particular Article 26 of Council Directive 93/36/EEC
      of 14 June 1993 coordinating procedures for the award of public supply contracts, prohibit a contracting authority from laying
      down an award criterion in relation to the supply of electricity which is given a 45% weighting and which requires a tenderer
      to state, without being bound to a defined supply period, how much electricity he can supply from renewable sources to a group
      of consumers not more closely defined, where the maximum number of points is given to whichever tenderer states the highest
      amount and a supply volume is taken into account only to the extent that it exceeds the volume of consumption to be expected
      in the context of the contract to which the invitation to tender relates.
      
      
      ─
         Second question
      
      The provisions of Community law relating to the award of public contracts, in particular Article 2(1)(b) of Council Directive
      89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the
      application of review procedures to the award of public supply and public works contracts do not prohibit making the setting
      aside of an unlawful decision in review proceedings under Article 1 of Directive 89/665/EEC dependent on proof that the unlawful
      decision was material to the outcome of the procurement procedure, provided that such condition is not less favourable than
      that applying to similar domestic actions (principle of equivalence) and that it does not make it practically impossible or
      excessively difficult to exercise rights conferred by Community law (principle of effectiveness).
      
      
      ─
         Third question
      
      The provisions of Community law relating to the award of public contracts, in particular Article 26 of Directive 93/36/EEC,
      prohibit making the setting aside of an unlawful decision in review proceedings under Article 1 of Directive 89/665/EEC dependent
      on proof that the unlawful decision was material to the outcome of the procurement procedure, where that proof has to be achieved
      by the review body examining whether the ranking of the tenders actually submitted would have been different had they been
      re-evaluated disregarding the unlawful award criterion.
      
      
      ─
         Fourth question
      
      The provisions of Community law relating to the award of public contracts, in particular Article 26 of Directive 93/36/EEC,
      require a contracting authority to cancel the invitation to tender if it transpires in review proceedings under Article 1
      of Directive 89/665/EEC that one of the award criteria it laid down is unlawful and is therefore set aside by the review body.
      
       1 –
         
           Original language: French.
      
      2 –
         
         OJ 1993 L 199, p. 1.
      
      3 –
         
         OJ 1989 L 395, p. 33.
      
      4 –
         
         OJ 1997 L 27, p. 20.
      
      5 –
         
         OJ 2001 L 283, p. 33.
      
      6 –
         
         Pending before the Court of Justice.
      
      7 –
         
         Not yet published in ECR.
      
      8 –
         
         OJ 1992 L 209, p. 1.
      
      9 –
         
         [2001] ECR I-2099.
      
      10 –
         
         Paragraph 73.
      
      11 –
         
         [1993] ECR I-3353, paragraph 37.
      
      12 –
         
         Emphasis added, See also the judgment in Case C-87/94  
             Commission  v  
             Belgium  [1996] ECR I-2043, paragraph 70.
         
      
      13 –
         
         [2001] ECR I-7725, paragraph 44.
      
      14 –
         
         Emphasis added.
      
      15 –
         
         Emphasis added.
      
      16 –
         
         [1995] ECR I-563, paragraph 44.
      
      17 –
         
         [2000] ECR I-7445.
      
      18 –
         
         Paragraphs 110 to 112 of my opinion. The subject of discussion was Directive 92/50, the relevant provisions of which are in
            essence the same as those of Directive 93/36. See paragraph 36 above.
         
      
      19 –
         
         Emphasis added.
      
      20 –
         
          
            1.  The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision
            for the powers to:  ... 
            (b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical,
            economic or financial specifications in the invitation to tender, the contract documents or in any other document relating
            to the contract award procedure.
            
            
         
      
      21 –
         
         [2002] ECR I-5553.
      
      22 –
         
         Not yet published in ECR.
      
      23 –
         
         . Hospital Ingenieure   judgment, cited above, paragraph 67.
         
      
      24 –
         
         See, in particular, the judgments in Case C-415/93  
             Bosman  [1995] ECR I-4921, paragraph 59; Case C-66/00  
             Bigi  [2002] ECR I-5917, paragraph 18, and Case C-153/00  
             Der Weduwe , not yet published in ECR, paragraph 31.
         
      
      25 –
         
         Emphasis added.
      
      26 –
         
         Dans le cas visé au paragraphe 1 point (b), le pouvoir adjudicateur mentionne, dans le cahier des charges ou dans l'avis de
            marché, tous les critères d'attribution  
             dont il prévoit l'utilisation , si possible dans l'ordre décroissant de l'importance qui leur est attribuée and  
            In the case referred to in point (b) of paragraph 1, the contracting authority shall state in the contract documents or in
            the contract notice all the criteria  
             they intend to apply  to the award, where possible in descending order of importance. Emphasis added.
         
      
      27 –
         
         A Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible
            for the review procedures shall be limited to awarding damages to any person harmed by an infringement.