«(Article 104(3) of the Rules of Procedure – Procurement contracts – Directive 93/36/EEC – Procedures for the award of public supply contracts – Incorrect assessment as regards the criterion for determining the most economically advantageous tender – Procurement procedure discontinued)»

Approximation of laws – Procedures for the award of public supply contracts – Directive 93/36 – Withdrawal of the invitation to tender – Condition – Compliance with the fundamental rules of Community law on public contracts (Council Directives 92/50, 93/36 and 93/37) Directive 93/36 coordinating procedures for the award of public supply contracts must be interpreted, in accordance with the Court's case-law with respect to Directives 92/50 and 93/37, as meaning that a contracting authority which has commenced a procedure for the award of a contract on the basis of the lowest price may discontinue the procedure, without awarding a contract, when it discovers after examining and comparing the tenders that, because of errors committed by itself in its preliminary assessment, the content of the invitation to tender makes it impossible for it to accept the most economically advantageous tender, provided that, when it adopts such a decision, it complies with the fundamental rules of Community law on public procurement such as the principle of equal treatment. see para 36, operative part

ORDER OF THE COURT (Second Chamber) 16 October 2003 (1)

((Article 104(3) Rules of Procedure – Procurement contracts – Directive 93/36/EEC – Procedures for the award of public supply contracts – Incorrect assessment as regards the criterion for determining the most economically advantageous tender – Procurement procedure discontinued))

In Case C-244/02,

REFERENCE to the Court under Article 234 EC by the Korkein hallinto-oikeus (Finland) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1), as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively (OJ 1997 L 328, p. 1),

THE COURT (Second Chamber),

composed of: R. Schintgen, President of the Chamber, V. Skouris (Rapporteur) and N. Colneric, Judges,

Advocate General: L.A. Geelhoed,

the national court having been informed that the Court proposes to give its decision by reasoned order in accordance with Article 104(3) of the Rules of Procedure, the persons referred to in Article 23 of the Statute of the Court of Justice having been invited to submit any observations which they might wish to make in this regard, after hearing the Advocate General, makes the following

Community legislation

National legislation

On those grounds,

THE COURT (Second Chamber),

in answer to the questions referred to it by the Korkein hallinto-oikeus by order of 1 July 2002, hereby rules:

Luxembourg, 16 October 2003.

R. Grass

V. Skouris

Registrar

President