International Construction Law Review
THE ECJ, TRANSPARENCY, AND PROCUREMENT AS AN ENVIRONMENTAL POLICY EVN AG & WIENSTROM GMBH v. AUSTRIA
MICHAEL BOWSHER
Barrister, Monckton Chambers, London 1
Introduction
The volume of case law arising out of EC procurement legislation continues to grow significantly. There are now scores of decisions handed down by the European Court of Justice each year on this topic. Austria has become a quite disproportionately active source of such cases. No attempt is made here to consider why that might be, but it is notable that Austria has established a separate system of review relating to public procurement and that system has certainly proved a prolific source of references to the European Court of Justice for preliminary rulings on points of law.
The proportion of cases dealing with the coverage of particular legislation to a particular contract, or the elimination of obstacles to trade in the Community has declined. Increasingly the case law addresses issues of principle concerning the means by which public and utilities tendering is to proceed fairly and competitively. In more complex cases the sensible purchasing authority will elect to award the contract to bidders submitting the most economically advantageous tender. In identifying that most economically advantageous bid the purchasing authority must refer to fixed criteria in selecting those who are to be invited to bid, and further separate criteria to identify the winning bid. Both sets of criteria must be set down so as to be available to bidders or would-be bidders and ranked where possible.2
More recent cases have, therefore, focused on the permissibility of particular criteria, the clarity in which they are described, and the means by which bidders are to show that they have met the criteria, or the means by which the degree to which they have done so is to be measured. The most recent and broad ranging of these decisions from the European Court of Justice, again from Austria, was handed down on 4 December 2003 in Case C–448/01, EVN AG & Wienstrom GmbH
v. Austria.
3
1 Barrister, England & Wales and Northern Ireland, FCI Arb, Chartered Arbitrator and CEDR Accredited Mediator.
2 Case C–470/99, Universale-Bau
[2002] ECR I–11617.
3 For a summary report see [2003] All ER (D) 81; the full text is available on the website of the European Court of Justice: http://www.curia.eu.int.
[2004
The International Construction Law Review
190