Cases - Concordia Bus Finland Oy AB v Helsingin Kaupunki

Record details

Name

Concordia Bus Finland Oy AB v Helsingin Kaupunki

Date

(2001)

Citation

C-513/99

Keywords

Tendering and procurement

Summary

The municipal authority for the city of Helsinki published a notice, also contained in the Official Journal of the EU, calling for tenders for the operation of the city's urban bus network, in accordance with specified routes and timetables. The contract was to be awarded to the provider of the tender most economically advantageous overall to the city, assessed by reference to three categories of criteria: overall price of operation, quality of bus fleet and operator's quality and environment management. The tariff of points included bonuses for use of buses with low nitrogen oxide emissions and low noise levels (under 'quality of bus fleet'), for various certified quality criteria and for a certified environment protection programme (under 'operator's quality and environmental management').

Concordia (as it became) had submitted the lowest tender, but the contract was awarded to HKL, the city of Helsinki's own operator, which achieved a higher overall score due to bonus points for low emissions and noise levels. HKL and Concordia had identical scores on quality and environmental management. Concordia applied to the Finnish Competition Council to have the award set aside, arguing that the additional points for low emissions and noise levels were discriminatory, since only HKL's buses would be able to achieve them. The Finnish courts on appeal referred preliminary questions to the ECJ, to which the ECJ answered as follows:

'The position would be the same for these purposes whether treated as a contract under the public service contracts directive or the utilities (i.e. transport) directive.'

Where the decision to award the contract is stated to be upon the basis of the most economically advantageous tender, the contracting authority is entitled to take into account ecological/environmental considerations such as nitrogen oxide emissions and noise levels, provided these are linked to the subject matter of the contract, do not confer unrestricted freedom of choice on the authority, are expressly mentioned in the tender/contract documents and are compliant with fundamental principles of EC law, notably non-discrimination. SIAC v Mayo County Council was cited. The principle of equal treatment would not preclude the awarding authority from specifying and taking into account criteria connected with environmental protection solely because an undertaking connected with the awarding authority was especially well placed to meet them.

(Note that Article 26 of the Utilities Procurement Directive encapsulated part of the findings of the ECJ in the Concordia case, permitting awarding authorities to lay down technical specifications in tender documents which include environmental characteristics.)