«(Directive 93/36/EEC – Public supply contracts – Concept of the most economically advantageous tender – Award criterion giving preference to electricity produced from renewable energy sources – Directive 89/665/EEC – Public procurement review proceedings – Unlawful decisions – Possibility of annulment only in the case of material influence on the outcome of the tender procedure – Illegality of an award criterion – Obligation to cancel the invitation to tender)»

1.. Approximation of laws – Procedures for the award of public supply contracts – Directive 93/36 – Award of contracts – Most economically advantageous tender – Criteria – Supply of electricity from renewable energy sources – Whether permissible – Conditions (Council Directive 93/36, Art. 26)

2.. Approximation of laws – Review procedures relating to the award of public supply and public works contracts – Directive 89/665 – Finding of illegality of an award criterion by the review body – Obligation to cancel the invitation to tender (Council Directive 89/665)

JUDGMENT OF THE COURT (Sixth Chamber) 4 December 2003 (1)

((Directive 93/36/EEC – Public supply contracts – Concept of the most economically advantageous tender – Award criterion giving preference to electricity produced from renewable energy sources – Directive 89/665/EEC – Public procurement review proceedings – Unlawful decisions – Possibility of annulment only in the case of material influence on the outcome of the tender procedure – Illegality of an award criterion – Obligation to cancel the invitation to tender))

In Case C-448/01,

REFERENCE to the Court under Article 234 EC by the Bundesvergabeamt (Austria) for a preliminary ruling in the proceedings pending before that body between

and

on the interpretation of Article 26 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) and of Articles 1 and 2(1)(b) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1),

THE COURT (Sixth Chamber),,

composed of: V. Skouris (Rapporteur), acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and N. Colneric, Judges,

Advocate General: J. Mischo,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of EVN AG and Wienstrom GmbH, the Republik Österreich, the Austrian Government and the Commission at the hearing on 23 January 2003,

after hearing the Opinion of the Advocate General at the sitting on 27 February 2003,

gives the following

Community legislation

...5. The Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers.6. The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law. Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.

National legislation

...3. After the award of the contract, the Bundesvergabeamt shall, in accordance with the conditions of subparagraph 1, determine only whether the alleged illegality exists or not.

The first part of the first question

The second part of the first question

Second part, point (a)

─ Observations submitted to the Court

─ Findings of the Court

On the other hand, that legislation does preclude such a criterion where

It is for the national court to determine whether, despite the contracting authority's failure to stipulate a specific supply period, the award criterion was sufficiently clearly formulated to satisfy the requirements of equal treatment and transparency of procedures for awarding public contracts.

Observations submitted to the Court

Findings of the Court

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Bundesvergabeamt by order of 13 November 2001, hereby rules:

Skouris

Gulmann

Puissochet

Schintgen

Colneric

Delivered in open court in Luxembourg on 4 December 2003.

R. Grass

V. Skouris

Registrar

President