Commission of the European Communities v Kingdom of Belgium.
Date: 1996-04-25
8 A joint statement by the Council and the Commission concerning Article 15 of the Directive (OJ 1990 L 297, p. 48) provides:
"The Council and the Commission state that in open and restricted procedures all negotiation with candidates or tenderers on fundamental aspects of contracts, variations in which are likely to distort competition, and in particular on prices, shall be ruled out; however, discussions with candidates or tenderers may be held but only for the purpose of clarifying or supplementing the content of their tenders or the requirements of the contracting entities and provided this does not involve discrimination."
The facts
33 The obligation imposed on contracting entities by Article 4(1) of the Directive is not subject to any condition concerning the nationality or seat of tenderers. Moreover, as the Advocate General has pointed out in point 24 of his Opinion, it is always possible that undertakings established in other Member States may be concerned directly or indirectly by the award of a contract. The procedure laid down by the Directive must therefore be observed irrespective of the nationality or seat of the tenderers.
51 It is to be noted at the outset that in Case C-243/89 Commission v Denmark [1993] ECR I-3353 (the "Storebaelt case"), at paragraph 33, the Court held that the duty to observe the principle of equal treatment of tenderers lies at the heart of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682).
52 As is shown by Article 4(2) the position is the same in the case of the Directive in question here.
53 Furthermore, the 33rd recital in the preamble shows that the Directive aims to ensure a minimum level of transparency in the award of the contracts to which it applies.
54 The procedure for comparing tenders therefore had to comply at every stage with both the principle of the equal treatment of tenderers and the principle of transparency so as to afford equality of opportunity to all tenderers when formulating their tenders.
88 The requirement under Article 27(2) of the Directive for the contracting entities to state "in the contract documents or in the tender notice all the criteria they intend to apply to the award, where possible in descending order of importance" is intended precisely to inform potential tenderers of the features to be taken into account in identifying the economically most advantageous offer. All the tenderers are thus aware of the award criteria to be satisfied by their tenders and the relative importance of those criteria. Moreover, that requirement ensures the observance of the principles of equal treatment of tenderers and of transparency.
89 Furthermore, although Article 27(3) of the Directive does indeed enable contracting entities to take account of variants, that provision must be interpreted in the light both of the principles underlying the Directive and of Article 27(2). Accordingly, in order to ensure that a contract is awarded on the basis of criteria known to all the tenderers before the preparation of their tender, a contracting entity can take account of variants as award criteria only in so far as it expressly mentioned them as such in the contract documents or in the tender notice.