ATI EAC AND OTHERS

O P I N I O N OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 8 September 2005 1

1. This reference for a preliminary ruling

concerns the interpretation of Article 36(2)
of Council Directive 92/50/EEC and Article
34(2) of Council Directive 93/38/EEC, which
harmonise the methods of awarding public
service contracts 2and those concluded in
certain sectors. 3

allocation, with transparent procedures in

which discriminatory measures and clauses
are prohibited.

2. The reference from the Consiglio di Stato

relates to the award of a contract to the
economically most advantageous offer and
the guidelines for making the decision, and
raises the question of the powers of the
contracting authority and of the jury, so as to
establish whether the former may simply set
out the parameters in the tender notice or
the contract documents and leave it to the
latter to specify and supplement them.

I The provisions requiring interpretation

3. In order to give a reply to that court, it is

necessary to observe mandatory principles
governing public procurement, which seek to
introduce objective rules of participation and

1 Original language: Spanish

2 Directive of 18 lune 1992 relating to the coordination of
procedures for the award of public service contracts (OJ 1992
L 209. p. 1 ).
3 Directive of 14 lune 1993 coordinating the procurement
procedures of entities operating in the water, energy, transport
and telecommunications sectors (Ol 1993 L 199, p 84).

4. Both directives, which focus on the equal

treatment of bidders (Article 3(2) of Directive 92/50 and Article 4(2) of Directive
93/38), provide neutral methods of granting
contracts, either based on the lowest price or
on the most advantageous tender from an
economic point of view (Articles 36(1) and
34(1) respectively).

5. As regards the latter, Article 36(2) of

Directive 92/50 provides that 'the contracting authority shall state in the contract
documents or in the tender notice the award

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OPINION OF MR RUIZ-JARABO CASE C-331/04

criteria ... in descending order of importance'. Article 34(2) of Directive 93/38 is

expressed in almost identical terms.

or areas where buses could be parked, (b) the

procedures for supervising the service and
the number of employees supervising the
service, (c) the number of regular drivers and
the type of licence which authorises them to
drive coaches, (d) the company's premises in
the province of Venice and (e) the staff
engaged in organising drivers' shifts.

II The facts in the main proceedings

and the questions referred for a preliminary ruling

6. The temporary association of undertakings constituted by EAC Sri and 'Viaggi di

Maio' Sne ('EAC') took part in a negotiated
procedure arranged by the Azienda del
Consorcio Trasporti Veneciano ('ACTV'),
using the second of the methods stated,
pursuant to Article 24(1)(b) of Legislative
Decree No 158/1995, 4 for the subcontracting of public passenger transport services. 5

7. The contract documents contained the

instructions for identifying the best tender:
the third instruction related to the organisational procedures and support structures for
implementing the service, which the jury
could assess with a maximum of 25 points. 6
It was necessary to state: (a) the depots and/

4 Gazzeta Ufficiale della Repubblica No 104, of 6 May 1995.

That article provides that 'in the case of the most economically
advantageous tender, decided on the basis of various criteria,
which vary according to the market ..., the contracting
authorities shall state, in the contract documents or in the
tender notice, all the award criteria ... in descending order of
importance'.
5 The Mestre urban transport service, lot No 1, from 16 June
2002 to 31 December 2003.
6 Paragraph 3.10, No 6 of the contract documents.

I - 10112

8. After the envelopes had been submitted

and before they had been opened but, in any
event, knowing who the candidates were, the
jury allocated the points between the five
aforementioned headings, giving 8 to the
first, 7 to the second, 6 to the third and 2 to
each of the other two.

9. The service was awarded to the temporary

association of undertakings 'La Lnea', which
received 86.53 points; EAC received only
83.50 points and therefore challenged the
result before the Tribunale Amministrativo
Regionale del Veneto (Regional Administrative Court, Veneto) alleging that its opponent
won as a result of the distribution ex post
facto of points relating to the organisational
procedures and support structures, and
relying on Article 36 of Directive 92/50 and
Article 24(1)(b) of Legislative Decree
158/1995.

10. The Tribunale dismissed the action by

judgment of 15 April 2003, against which the

ATI EAC AND OTHERS

EAC brought an appeal before the Consiglio

di Stato, whose case-law approves the
practice of giving award juries some freedom
of action to introduce factors, to add specific
detail to the general guidelines set out in the
tender notice and to provide for subheadings
in the main categories already defined.

11. In order to establish whether Article 36

of Directive 92/50 and Article 34 of Directive
93/38 permit that interpretation, the Consiglio di Stato refers the following questions
to the Court of Justice:

'(1) Is it lawful to interpret those provisions

as flexible rules allowing the contracting
authority, where the award is to be
made on the basis of the economically
most advantageous tender, to fix the
criteria in a general way in the tender
notice or the contract documents, leaving it to the jury to specify or supplement those criteria, if need be, provided
always that such specifying or supplementing is carried out before the packets containing the tenders have been
opened, and does not alter those criteria
or, on the contrary, must those provisions be interpreted as a rigid rule
requiring the contracting authority to
determine, analytically, the criteria for
the award of the contract in the tender
notice or the contract documents, and
in any case before the prequalification
stage or the invitation to tender, and as

meaning that the jury may not subsequently do anything to specify or

supplement those criteria or to create
subheadings or sub-marking since for
reasons of transparency every piece of
information concerning the criteria for
the award must appear in the notice or
contract documents?

In short, is the traditional line of

interpretation followed in the past in
the Consiglio di Stato'scase-law, which
permits the jury to supplement the
award criteria before the envelopes are
opened, lawful in the light of Community law?

(2) Is it lawful, in the light of those

provisions loosely interpreted having
regard to the adverbial phrase "where
possible", for the contracting authority
to adopt conditions for participation
that provide, with regard to one of the
criteria for the award (in this instance,
the organisational and support procedures), with reference to a complex
series of parameters for which the
tender notice does not allocate individual points, so that they were in that
sense in part indeterminate, that the
points should be allocated at the absolute discretion of the contracting
authority, or do not those provisions
in any case require that the criteria
should as a general rule be formulated
absolutely definitively, which is not
compatible with the fact that those
criteria were not allocated separate
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OPINION OF MR RUIZ-JARABO - CASE C-331/04

points in the notice; if it is lawful,

because the provisions are considered to
beflexibleand because it is not essential
to give points to every item, is it
permissible, where the tender notice
does not give express power to the jury,
for the latter to specify or supplement
the criteria (simply by allocating individual importance and relative weight to
every single item that the notice
intended to be assessed by the overall
allocation of a maximum of 25 points),
or is it not on the contrary necessary to
apply the conditions of the tender
literally, allocating the points on an
overall assessment of the various and
complex matters taken into consideration by the lex specialis?

III Procedure before the Court of

Justice

12. Written observations were submitted,

within the time-limit laid down in Article
20 of the EC Statute of the Court of Justice,
by the Commission, the Austrian and
Netherlands Governments, EAC and ACTV,
who presented oral argument at the hearing
held on 7 July 2005.

IV Admissibility of the questions

referred for a preliminary ruling

(3) Is it lawful, in the light of [those

provisions] to give the jury which is to
assess the tenders, regardless of the
manner in which criteria have been
formulated in the tender notice, in a
procedure for an award on the basis of
the economically most advantageous
tender, the power, in respect of the
complexity of the matters to be
assessed, to restrict its own actions, by
specifying the parameters for the application of the criteria previously determined in the tender notice, and may
such power be exercised by creating
subheadings, sub-points, or simply by
setting more specific criteria than those
laid down in the tender notice or the
contract documents, before the envelopes have been opened?'
I - 10114

13. The Austrian Government and ACTV

contend that the reference for a preliminary
ruling is inadmissible, for different reasons
and to different extents.

14. The former complains that the order for

reference is vague as to the provisions of
which it requires an interpretation, and
infers from page 10 of the order that Article
34 of Directive 93/38 is unconnected with
the main action. Neither of these criticisms is
persuasive, since the Consiglio di Stato raises
its doubts 'with regard to the rule laid down
in Article 34 of Directive 93/38 and, in
particular, to the similar rule in Article 36 of
Directive 92/50', indicating that the appeal
refers to the wording of Article 36 of
Directive 92/50, which is similar to that of

ATI EAC AND OTHERS

Article 34 of Directive 93/38, 'applicable to

the present case, even if it is not expressly
quoted by the appellant'.

15. In a way, the Austrian Government is

not seeking the rejection in limine of the
proceedings, but wants the analysis to be
limited to the second of the provisions cited,
which has the same meaning as Article 34 of
Directive 93/38. In the circumstances, that
claim of admissibility may only be described
as superfluous because whatever interpretation is suggested will suit both provisions,
and it will be up to the national court to
choose between them; the Court of Justice
must not intervene in that task, unless the
facts are incompatible with Community law
or the doubt raised with regard to interpretation is based on mere hypothesis,
unconnected with the true circumstances of
the case.

16. ACTV's claim of inadmissibility falls

within the latter category, as it only gives
the appearance of having more weight.
ACTV claims that the Italian court's interest
in knowing whether the jury may 'supplement' or 'specify' the award criteria laid
down in the tender notice or the contract
documents is irrelevant because, in this case,
the jury did not carry out such operations;
according to the order for reference, it
merely created subcriteria of calculation
which define the terms of that document
but do not add to it (final paragraph in Point
5).

17. Irrespective of the problem of deciding

whether the question referred for a preliminary ruling is hypothetical, this argument is contradictory because it accepts that
the approved guidelines were defined more
closely and then, immediately afterwards,
explains that the Consiglio di Stato does not
need to establish whether Article 36 of
Directive 92/50 and Article 34 of Directive
93/38 authorise that subsequent operation.
Moreover, the questions are formulated in
such a way as to highlight the legality of the
Italian legislation applicable to the case,
which accords the jury powers to make
additions before the envelopes are opened.
The reference for a preliminary ruling is
therefore appropriate.

V The rules governing public procurement

18. The Consiglio di Stato wishes to know

whether, in a procedure for an award on the
basis of the economically most advantageous
tender, the provisions to which it refers allow
the contracting authority to fix the criteria
for assessing the tenders in a general way in
the tender notice or contract documents,
leaving it to the jury to specify or supplement
them (question 1).

7 The only case-law which has prohibited hypothetical questions

- established m Case 104 79 Foghai v Nmello [1980] F.CR 715
and Case 2 81) foglia v Novelto [1981] ECR 3 0 4 5 - has not
been upheld subsequently and has drawn criticism from the
most authoritative academic lawyers (Barav. A.. 'Preliminary
Censorship? The ludgment of the European Court in Foglia y
Novello. in European Law Review 1980, pp. +13 to 4681.

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OPINION OF MR RUIZ-JARABO CASE C-331/04

19. It also seeks to clarify whether, in the

light of that broad interpretation and having
regard to the words 'where possible' used in
the two articles at issue, the Authority may
allocate points to one of the criteria for
assessment, to be divided between complex
parameters, which are stated but without
indication of their relative weight, so that
their order of priority is determined later by
the jury, which may restrict its own actions
by specifying the rules previously determined
in the tender notice, in particular by creating
subheadings or subpoints (questions 2 and
3).

20. To dispel those doubts, it is necessary to

follow the advice given in the opinion in
Lombardini and Mantovani 8to recall the
principles underlying selection of a contractor, in order better to understand Article 36
of Directive 92/50 and Article 34 of Directive
93/38.

ment of goods, persons, services and capital). 9Those directives aim to give effect to
the requirements set out by the Community
legislature in Articles 9, 52, 59 and 73B of the
EC Treaty (now, after amendment, Articles
23 EC, 43 EC, 49 EC and 56 EC).

22. Giving effect to those requirements and

the pursuit of that objective can only be
achieved if those who wish to be awarded
public contracts can apply on an equal basis,
without any hint of unjustified bias. To this
end, a system based on objectivity, in terms
of both substance and form, is indispensable.
Such a system must be established, as
regards substance, by setting objective criteria for participation in the tender and
award of contracts, 10 and as regards form, by
making provision for transparent procedures
in which publication is the norm.

23. The criteria for selection of candidates

refer to the professional, economic and
technical suitability of applicants. To rule

21. The Directives on public contracts, each

one concerned with a specific field, aim to
promote the development of open competition by realising the four fundamental freedoms of European integration (free move-

8 Joined Cases C-285/99 and C-286/99 [2001] ECR I-9233.

I - 10116

9 In particular, the second recital in the preamble to Directive

92/50 and the first of the preamble to Directive 93/38. The
same notion is found in the second recital in the preamble to
Directive 2004/18/EC of the European Parliament and of the
Council of 31 March 2004 on the coordination of procedures
for the award of public works contracts, public supply
contracts and public service contracts (OJ 2004 L 134, p.
114) which will replace inter alia Directive 92/50 when the
time-limit for its transposition expires in 2006.
10 The distinction between the two kinds of criteria, which was
drawn by Advocate General Darmon in his Opinion in Case
31/87 Beentjes [1988] ECR 4635, is also contained in
Directive 2004/18 (recitals 39 and 46).

ATI EAC AND OTHERS

out any discriminatory effect, it is necessary

in each case to predetermine the rules
governing the selection procedure, as well
as the levels of skill and experience
required. 11

24. Once the tenderers qualifying for award

of the contract have been selected, that
award is subject to objective parameters of
assessment, whether the lowest bid or the
economically most advantageous tender. If
the second criterion is applied, the contracting authority sets out the award criteria in
the contract documents or tender notice, 12
stating their respective importance, in accordance with the provisions with which this
reference for a preliminary ruling is concerned.

25. Consequently, the system leaves nothing

to chance or subject to any arbitrary decision
on the part of the body which makes the final
decision. Equality of treatment for tenderers
requires that any person who wishes to be
awarded a contract must know beforehand
what he must do to be awarded it, so that the
awarding body is confined, given the discretion involved in the technical evaluation, to
applying parameters set out in the lex
contractus, both those rules governing public
contracts in a general sense, and those which
involve in particular a specific contract.

11 - Articles 29 to 35 of Directive 92 50 and Articles 30 to 33 of

Directive 93 38 refer to this aspect.
12 The contractor is to be selected according to circumstances
connected with the subject-matter of the contract, which
may relate to quality, technical merit, aesthetic and
functional characteristics, technical assistance and service,
delivery date, delivery period or period of completion, costeffectiveness, price or running costs (Article 3b(1)(a) of
Directive 92 50 and Article 34(1)(a) of Directive 93 38)

26. To ensure that such a system is effective

and that there is no discrimination, it is not
sufficient to set objective criteria for the
procedures, but application of the criteria
must be based on transparency. This must
apply from the time of the tender notice, in
the contract documents and, finally, in the
selection stage itself, 13 both in the open
procedures and the restricted procedures.

VI The reply to the questions referred

for a preliminary ruling

27. Some of the claims made at the hearing

have taken the Court of Justice far from
Luxembourg, to an Italian court where the
main action is to be decided, but it must be
made clear that it is not for this European
Court, but for the Consiglio di Stato, to
determine whether the transport services
contract in question was awarded in accordance with the law.

28. This Court has a different, more complex and more important task: to determine
whether the articles for which an interpretation is sought permit, in the light of the
aforementioned principles, situations in
which the jury does not merely assess
although, inevitably, with some latitude
the tenders received in accordance with the
rules set out in the tender notice or the
contract documents, because it has been

13 Article15 and corroborating articles of Directive 92 50, and

also Article 21 et seq. of Directive 93 38.

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OPINION OF MR RUIZ-JARABO CASE C-331/04

given the additional role of specifying,

adding to and supplementing them. In short,
it is necessary to ascertain whether that body,
whose function is to implement, can acquire
'quasi-legislative' responsibilities, by defining
the content of the lex contractus in some
way.

A The first question referred for a

preliminary ruling

29. Article 36 of Directive 92/50 and Article

34 of Directive 93/38 are rules for awarding
contracts, which lay down for that purpose
two basic criteria which have already been
mentioned: the lowest price and the economically most advantageous tender. The
former, because it is fixed, leaves no room for
assessment by the awarding body. The latter,
however, constitutes an undefined legal
concept, which the contracting authority
must specify in each case, to which end
Articles 36(1)(a) and 34(1)(a) provide a nonexhaustive list of various points which must
be included in the contract documents or the
tender notice in descending order of importance, as required under Articles 36(2) and
34(2).

30. It may therefore be inferred that the

criteria which the jury must take into
consideration when selecting the most
advantageous tender must be laid down by
the contracting authority in the tender notice
I - 10118

or the contract documents, and they cannot

be fixed by reference, nor can that task be
deferred until a later time.

31. This, for Community case-law, is an

inescapable corollary of the principles of
transparency, publicity and non-discrimination. The assessment criteria must be appropriate for identifying the economically most
advantageous tender, so they must necessarily be linked to the subject-matter of the
contract 14 and be included in the aforementioned documents, 15 in such a way as to
allow all reasonably well-informed and normally diligent tenderers to interpret them in
the same way; 16 their order of importance
should also be stated. 17

32. Thus, the contracting authority does not

have complete freedom of action: it does not
have a discretionary power to establish
formulae for assessing the tenders; nor does
it have the capacity to choose when to
publicise them, or to change them during the
selection procedure, which also prevents it
from altering their meaning. 18

14 See to this effect Case C-513/99 Concordia Bus Finland

[2002] ECR I-7213, paragraph 59, applying Article 36(1)(a) of
Directive 92/50.
15 The judgment in Beentjes stated that a general reference to a
provision of national legislation cannot satisfy the publicity
requirement (paragraph 35).
16 Case C-19/00 SIAC Construction [2001] ECR I-7725,
paragraph 42. The judgment in Case C-448/01 EVN and
Wienstrom [2003] ECR I-14527, paragraph 57, confirms this
approach.
17 Case C-470/99 Universale-Bau [2002] ECR 1-11617, paragraph 97.
18 This last consequence is reflected in the aforementioned
judgments in SIAC Construction, paragraph 43, and EVN and
Wienstrom, paragraph 92.

ATI EAC AND OTHERS

33. In the light of all those considerations,

the jury must not be permitted to initiate any
changes and its participation must be limited
to applying the criteria prepared beforehand
by the contracting authority, of which all the
tenderers are duly aware, because they have
been subject to transparency and have been
publicised. Consequently, the specification
and supplementation activities to which the
Consiglio di Stato refers in its first question,
to the extent that they involve creating new
schemes, not merely implementing those
already established, infringe the spirit of
Directives 92/50 and 93/38, because they fail
to have regard to the grounds on which they
are based.

34. It is irrelevant that that task is carried

out before the envelopes are opened, because
equal treatment is required not only in the
decision but also in the participation, so that
the lack of complete information regarding
the conditions of the selection procedure
means less publicity, which is likely to leave
out of the running possible competitors who,
if they had had access to all the requirements, might have decided to compete. 19
Furthermore, as the Commission and the
Austrian Government suggest, that possibility would give the body responsible for
identifying the most acceptable offer the
ability to influence the end result, thus

19 The judgments in Case C-87/94 Commission v Belgium

[1996] ECR I - 2 0 4 3 , paragraph 88, and i n Universale-Bau.
paragraph 98, give as grounds for the obligation imposed on
the contracting authorities the expediency of enabling
potential tenderers to be aware, before preparing their
tenders, of the criteria to be taken into account in selecting
the best offer and the relative importance of those criteria.
Moreover, that requirement ensures the observance of the
principles of equal treatment and of transparency

jeopardising impartiality, because, when it

comes to calculating the final totals,
although it may not know the content of
the envelopes, it does know who the
candidates are, and might tip the scales in
favour of one of them.

35. In short, under Article 36(2) of Directive

92/50 and Article 34(2) of Directive 93/38,
the contracting authority must state the
award criteria, in detail, in the tender notice
or contract documents; the jury is not
authorised to do anything other than to
apply them and is precluded from making
any alterations, even if this is done before the
envelopes are opened.

B The second and third questions

36. All the weighting factors must therefore

be announced in advance, in decreasing
order of importance.

37. Consequently, the criteria for awarding

the contract must always appear in the
tender notice or the contract documents,
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OPINION OF MR RUIZ-JARABO -

and the jury may not eliminate any of them,

add others or subdivide those initially laid
down. As I have already pointed out, it does
not have competence to introduce new
criteria or to alter or supplement those
already existing.

38. If it is impossible to weight the various

award criteria in the tender notice or
contract documents, it might be thought
that this was a task for the jury, but the
wording of Article 36(2) of Directive 92/50
and Article 34(2) of Directive 93/38 does not
permit it. This accords with the general
principles of public procurement, because it
might change the parameters and influence
the outcome of the selection procedure. In
that event, it is more in keeping with the
spirit of directives to entrust that task to an
expert, who is not involved in the final
decision. 20

39. Directives 2004/18 and 2004/17/EC, 21

both currently in force, confirm these views,
requiring the contracting authorities, in
Articles 53 and 55 respectively, to state each
of the criteria selected for identifying the

20 This was implicitly acknowledged by the judgment in SIAC

Construction, to which I have already referred, which stated
that the opinion of an expert on a factual matter that will be
known precisely only in the future guarantees that the
criteria are applied objectively and uniformly to all tenderers
(paragraph 44).
21 Directive of the European Parliament and of the Council of
31 March 2004 coordinating the procurement procedures of
entities operating in the water, energy, transport and postal
services sectors (OJ 2004 L 134, p. 1) which, when the timelimit for its transposition expires, will replace Directive
93/38.

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CASE C-331/04

most advantageous offer, using a range of

points with an appropriate maximum spread.
Where this is not possible for demonstrable
reasons, the contracting authority is required
to indicate the criteria in descending order of
importance. Thus, no competence is conferred on the jury to intervene in this matter.

40. There is all the more reason for rejecting

a modus operandi such as the one adopted in
the main proceedings, in which the contracting authority has laid down a criterion
to be assessed on the basis of various factors
to which it allocates an overall number of
points but no order of priority, leaving it to
the jury not only to distribute those points
but also to grade them.

41. I therefore consider that, where it is

impossible to state the award criteria in
order of importance in the tender notice or
contract documents, Article 36(2) of Directive 92/50 and Article 34(2) of Directive
93/38 do not allow the jury to do so
subsequently, even if it does so before the
envelopes are opened; accordingly, the jury
may not assume rules to govern that
intervention, nor may it distribute the points
initially set out in those documents between
the various parameters, by arranging these in
order of importance.

ATI EAC AND OTHERS

VII Conclusion

42. In the light of the foregoing considerations, I propose that the Court of Justice
give the following reply to the questions referred by the Consiglio di Stato:

(1) 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 and Article
34(2) of Council Directive 93/38/EC of 14 June 1993 coordinating the
procurement procedures of entities operating in the water, energy, transport
and telecommunications sectors require the contracting authority to set out the
award criteria, in detail, in the tender notice or contract documents; the jury is
not authorised to do anything other than to apply them and is precluded from
making any alterations, even if this is done before the envelopes containing the
offers are opened.

(2) Where it is impossible to state the award criteria in order of importance in the
tender notice or contract documents, those provisions do not allow the jury to
do so subsequently, even if it does so before the envelopes are opened;
accordingly, the jury may not assume rules to govern that intervention, nor may
it distribute the points initially allocated between the various parameters, by
arranging these according to their relative importance.

I - 10121