TNS Dimarso NV v Vlaams Gewest.
Date: 2016-07-14
15


According to the referring court, in the judgment of 24 January 2008 in Lianakis and Others (C‑532/06, EU:C:2008:40, paragraphs 38, 44 and 45), the Court held that Article 36(2) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), which provision is essentially similar to Article 53(2) of Directive 2004/18, precludes the contracting authority from setting, subsequently to the publication of the tender specifications or the contract notice, the weighting rules and factors and sub-criteria for the award criteria set out in either of those documents, where those weighting rules and factors and sub-criteria were not previously notified to the tenderers. The Court thus held that it is the ex post determination not only of the ‘weighting factors’, but also of the ‘sub-criteria’ which is incompatible with EU law.
22


According to settled case-law, the principle of equal treatment and the obligation of transparency entail, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority (see, to that effect, judgments of 24 November 2005 in ATI EAC e Viaggi di Maio and Others, C‑331/04, EU:C:2005:718, paragraph 22, and 24 May 2016 in MT Højgaard and Züblin, C‑396/14, EU:C:2016:347, paragraph 37 and the case-law cited).
23


Thus, the Court has held that the subject matter of each contract and the criteria governing its award must be clearly defined from the beginning of the award procedure (judgment of 10 May 2012 in Commission v Netherlands, C‑368/10, EU:C:2012:284, paragraph 56) and that a contracting authority cannot apply, by way of award criteria, sub-criteria which it has not previously brought to the tenderers’ attention (judgment of 21 July 2011 in Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraph 31). Similarly, the contracting authority must interpret the award criteria in the same way throughout the procedure (judgment of 18 October 2001 in SIAC Construction, C‑19/00, EU:C:2001:553, paragraph 43 and the case-law cited).
24


Those requirements apply, in principle, mutatis mutandis to contracting authorities’ obligation to indicate, in the contract notice or the tender specifications, the ‘relative weighting’ of each of the award criteria. Thus, the Court has held that a contracting authority may not, in principle, apply weighting rules which it has not previously brought to the tenderers’ attention (see, to that effect, judgment of 24 January 2008 in Lianakis and Others, C‑532/06, EU:C:2008:40, paragraphs 38 and 42).
26


Nonetheless, the Court has accepted that it is possible for a contracting authority to determine, after expiry of the time limit for submitting tenders, weighting factors for the sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention, provided that three conditions are met, namely that that subsequent determination, first, does not alter the criteria for the award of the contract set out in the tender specifications or contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected their preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers (see judgment of 21 July 2011 in Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraph 33 and the case-law cited).
29


The Court has held that an evaluation committee must be able to have some leeway in carrying out its task and, thus, it may, without amending the contract award criteria set out in the tender specifications or the contract notice, structure its own work of examining and analysing the submitted tenders (see judgment of 21 July 2011 in Evropaïki Dynamiki v EMSA, C‑252/10 P, not published, EU:C:2011:512, paragraph 35).