PRESS RELEASE No 73/02
17 September 2002
Judgment of the Court of Justice in Case C-513/99
Concordia Bus Finland Oy Ab v Helsingin kaupunki and HKL-Bussiliikenne
A MUNICIPALITY WHICH ORGANISES A TENDER PROCEDURE FOR THE OPERATION
OF AN URBAN BUS SERVICE IS ENTITLED TO TAKE ACCOUNT OF ECOLOGICAL CONSIDERATIONS
CONCERNING THE BUS FLEET OFFERED
The principle of equal treatment does not preclude the taking into account
of criteria of protection of the environment merely because only a limited
number of undertakings can comply with those criteria.
On 12 February 1998 the commercial service committee chose HKL-Bussiliikenne,
since it had obtained the greatest number of points overall. Another company,
Concordia Bus Finland Oy Ab, which came second, appealed to the Kilpailuneuvosto
(Competition Council), arguing in particular that it was unfair and discriminatory
to award additional points for a bus fleet with nitrogen oxide emissions and
noise level below certain limits. It said that points had been awarded for using
a type of bus which only HKL-Bussiliikenne was in fact able to offer.
The Competition Council acknowledged that the contracting entity was entitled
to define the type of bus fleet it wanted, and also found that all the competitors
had the possibility of acquiring buses powered by natural gas. It therefore
concluded that it had not been proved that that criterion discriminated against
Concordia.
Concordia appealed to the Korkein hallinto-oikeus (Supreme Administrative
Court) to have the Competition Council's decision quashed. The Supreme Administrative
Court decided to stay the proceedings and refer several questions to the Court
of Justice for a preliminary ruling.
The most important of those questions was whether the Community legislation, correctly interpreted, allows a municipality which organises a tender procedure for the operation of an urban bus service to include operators' ecological and quality management in the comparison of tenders.
On this point, the Court of Justice ruled that, where the contracting authority
decides to award a contract to the tenderer whose tender is the most economically
advantageous, it may take ecological criteria into consideration, provided that
those criteria:
- are connected with the subject-matter of the contract,
- do not give the contracting authority an unrestricted
freedom of choice,
- are expressly mentioned in the contract documents or
the tender notice, and
- comply with all the fundamental principles of Community
law, in particular the principle of non-discrimination.
The Court of Justice also said that the principle of equal treatment does not
prevent the taking into consideration of criteria of protection of the environment
merely because the transport operator to whom the contract is awarded is one
of the few undertakings able to offer a bus fleet which meets those criteria.
Available in English, Finnish, French, German and Swedish. For the full text of the judgment, please consult our Internet page For further information please contact Mr Reinier Van Winden: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731 |