EVN AG and Wienstrom GmbH v Republik Österreich.
Date: 2003-12-04
34.  It follows that the Community legislation on public procurement does not preclude a contracting authority from applying, in the context of the assessment of the most economically advantageous tender for a contract for the supply of electricity, a criterion requiring that the electricity supplied be produced from renewable energy sources, provided that that criterion is linked to the subject-matter of the contract, does not confer an unrestricted freedom of choice on the authority, is expressly mentioned in the contract documents or the contract notice, and complies with all the fundamental principles of Community law, in particular the principle of non-discrimination.
The second part of the first question
Second part, point (a)
37.  It must be recalled that according to settled case-law it is open to the contracting authority when choosing the most economically advantageous tender to choose the criteria on which it proposes to base the award of contract, provided that the purpose of those criteria is to identify the most economically advantageous tender and that they do not confer on the contracting authority an unrestricted freedom of choice as regards the award of the contract to a tenderer (see, to that effect, Case 31/87   Beentjes   [1988] ECR 4635, paragraphs 19 and 26; Case C-19/00   SIAC Construction   [2001] ECR I-7725, paragraphs 36 and 37; and   C  oncordia Bus Finland  , paragraphs 59 and 61).
38.  Furthermore, such criteria must be applied in conformity with both the procedural rules and the fundamental principles laid down in Community law (see, to that effect,   Beentjes  , paragraphs 29 and 31, and   Concordia Bus Finland  , paragraphs 62 and 63).
39.  It follows that, provided that they comply with the requirements of Community law, contracting authorities are free not only to choose the criteria for awarding the contract but also to determine the weighting of such criteria, provided that the weighting enables an overall evaluation to be made of the criteria applied in order to identify the most economically advantageous tender.
40.  As regards the award criterion at issue in the main proceedings, the Court has already held that 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 (Case C-379/98   PreussenElektra   [2001] ECR I-2099, paragraph 73).
47.  It should be recalled that the principle of equal treatment of tenderers which, as the Court has repeatedly held, underlies the directives on procedures for the award of public contracts (see, in particular, Case C-470/99   Universale-Bau and Others   [2002] ECR I-11617, paragraph 91, and Case C-315/01   GAT   [2003] ECR I-6351, paragraph 73) implies, first of all, 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 (SIAC Construction  , paragraph 34).
48.  More specifically, that means that when tenders are being assessed, the award criteria must be applied objectively and uniformly to all tenderers (SIAC Construction  , cited above, paragraph 44).
49.  Second, the principle of equal treatment implies an obligation of transparency in order to enable verification that it has been complied with, which consists in ensuring, inter alia, review of the impartiality of procurement procedures (see, to that effect,   Universale-Bau and Others  , paragraphs 91 and 92).
56.  It is clear from the Court's case-law that the procedure for awarding a public contract must comply, at every stage, with both the principle of the equal treatment of potential tenderers and the principle of transparency so as to afford all parties equality of opportunity in formulating the terms of their tenders (see, to that effect,   Universale-Bau  , paragraph 93).
57.  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 tenderers of normal diligence to interpret them in the same way (SIAC Construction  , paragraph 41).
58.  Consequently, in the case at issue in the main proceedings, the fact that in the invitation to tender the contracting authority omitted to determine the period in respect of which tenderers had to state in their tenders the amount of electricity from renewable energy sources which they could supply could be an infringement of the principles of equal treatment and transparency were it to transpire that that omission made it difficult or even impossible for tenderers to know the exact scope of the criterion in question and thus to be able to interpret it in the same way.
68.  An award criterion that relates solely to the amount of electricity produced from renewable energy sources in excess of the expected annual consumption, as laid down in the invitation to tender, cannot be regarded as linked to the subject-matter of the contract.
70.  Finally, even assuming that that criterion was a response to the need to ensure reliability of supplies ─ an assumption which it is for the national court to verify ─ it should be noted that while the reliability of supplies can, in principle, number amongst the award criteria used to determine the most economically advantageous tender, the capacity of tenderers to provide the largest amount of electricity possible in excess of the amount laid down in the invitation to tender cannot legitimately be given the status of an award criterion.
71.  It follows that in so far as 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, the award criterion applied in the case at issue is not compatible with the Community legislation on public procurement.
74.  It should be noted at the outset that, according to settled case-law, in the context of the cooperation between the Court of Justice and national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling and the relevance of  the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-415/93   Bosman   [1995] ECR I-4921, paragraph 59;   PreussenElektra  , paragraph 38; Case C-390/99   Canal Satélite Digital   [2002] ECR I-607, paragraph 18; Case C-153/00   Der Weduwe   [2002] ECR I-11319, paragraph 31, and Case C-318/00   Bacardi-Martini and Cellier des Dauphins   [2003] ECR I-905, paragraph 40).
75.  However, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see   PreussenElektra  , paragraph 39, and   Canal Satélite Digital  , paragraph 19). The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions (Der Weduwe  , paragraph 32, and   Bacardi-Martini and Cellier des Dauphins  , paragraph 41).
76.  Thus the Court must decline to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation or the assessment of the validity of a provision of Community law sought by that court bears no relation to the actual facts of the main action or its purpose,  or where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular,   Bosman  , paragraph 61; Case C-437/97   EKW and Wein  & Co.   [2000] ECR I-1157, paragraph 52; Case C-36/99   Idéal Tourisme   [2000] ECR I-6049, paragraph 20, and   Bacardi-Martini and Cellier des Dauphins  , paragraph 42).
77.  More specifically, it must be borne in mind that Article 234 EC is an instrument of judicial cooperation, by means of which the Court provides the national courts with the points of interpretation of Community law which may be helpful to them in assessing the effects of a provision of national law at issue in the disputes before them (see, in particular, Case C-300/01   Salzmann   [2003] ECR I-4899, paragraph 28).
78.  It follows that in order that the Court may perform its task in accordance with the Treaty, it is essential for national courts to explain, when the reasons are not clear beyond doubt from the file, why they consider that a reply to their questions is necessary to enable them to give judgment (see, in particular,   Bacardi-Martini and Cellier des Dauphins  , paragraph 43).
92.  For the purpose of answering the question as reformulated, it should be pointed out that the Court has already held that the principles of equal treatment and transparency of tender procedures imply an obligation on the part of contracting authorities to interpret the award criteria in the same way throughout the procedure (see, to that effect, in particular   SIAC Construction  , paragraph 43).
93.  As far as the award criteria themselves are concerned, it is   a fortiori   clear that they must not be amended in any way during the tender procedure.