ATI EAC Srl e Viaggi di Maio Snc, EAC Srl and Viaggi di Maio Snc v ACTV Venezia SpA, Provincia di Venezia and Comune di Venezia.
Date: 2005-11-24
16. In that regard, it should be recalled that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of the Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see order of 4 February 2000 in Case C-17/98 Emesa Sugar  [2000] ECR I-665, paragraph 18, and Case C-147/02 Alabaster  [2004] ECR I-3101, paragraph 35).
20. First, as the Austrian Government rightly observed, the provisions of Article 36 of Directive 92/50 and Article 34 of Directive 93/38 cannot be applied simultaneously to the same set of facts. However, the provisions cited in the questions referred for a preliminary ruling have substantially the same wording (see Case C-513/99 Concordia Bus Finland  [2002] ECR I-7213, paragraph 91). Therefore, the Court can give a proper answer to the question as reformulated without there being any need for it to rule as to which of the two directives is applicable in the case in the main proceedings.
22. In the present case, it must be observed, in particular, that the duty to observe the principle of equal treatment lies at the very heart of the public procurement directives (see Concordia Bus Finland , paragraph 81) and that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed (see Case C-19/00 SIAC Construction  [2001] ECR I‑7725, paragraph 34).
23. It must also be observed that, in accordance with Article 36 of Directive 92/50 and Article 34 of Directive 93/38, all such criteria must be expressly mentioned in the contract documents or the tender notice, where possible in descending order of importance, so that operators are in a position to be aware of their existence and scope (see Concordia Bus Finland , paragraph 62).
24. Similarly, in order to ensure respect for the principles of equal treatment and transparency, it is important that potential tenderers are aware of all the features to be taken into account by the contracting authority in identifying the economically most advantageous offer, and, if possible, their relative importance, when they prepare their tenders (see, to that effect, Case C-87/94 Commission  v Belgium  [1996] ECR I-2043, paragraph 88, and Case C‑470/99 Universale-Bau and Others  [2002] ECR I-11617, paragraph 98).
32. Accordingly, the answer to the questions referred must be that Article 36 of Directive 92/50 and Article 34 of Directive 93/38 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 headings 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 preparation;
– was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.
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