Luxembourg, 18/09/2002 (Agence Europe) - In its "Concordia Bus Finland", the European Court of Justice admitted that in the transport sector, an adjudicating authority could not impose environmental criteria for determining the most economically attractive offer. In response to the Finnish Supreme Administrative Court (Koerkein hallito-oikeus), which before ruling had sent it the case of the Canadian company unsuccessful in the tender for Concordia Bus Finland in Helsinki, as well as for the HKL company. The latter had had taken over the line management services for the urban bus network in Helsinki.
The Court proceeded with interpretation of Article 36 1 a) of the European Directive 92/50 on 18 June 1992. In the context of public service contracts on urban service providers by bus, the Court explains that that the European adjudicating authority can take into consideration ecological factors, such as nitrogen oxide emissions level or the noise level created by the buses. The Court explains that this depends on three conditions. The criteria must be linked to the objective of the contract: unlimited authority must not be handed over to the European Adjudicator for choosing; they must be clearly mentioned in the accounts or contract recommendation; they must respect all the fundamental principles of Community law, notably the principle of non-discrimination.
Concordia appealed to the Supreme Court because it opposed the fact that the city of Helsinki had included two additional points of the least polluting and least noisy favoured HKL; Concordia contends that the 1992 Directive only laid down economic criteria. The Court declared that the City of Helsinki was able to take into account environmental criteria because it is clearly shown that these criteria could be used in the awarding of a contract, as listed in the factors which the contracting entity can take into account. Article 36 1 a) of the 1992 Directive explains that when awarding a contract that is based on the economically most advantageous, the adjudicating authority can take into account "various criteria" according to the contract, and points to the issues of quality, technical value, aesthetic and functional character, after sales and technical assistance, date and deadline for delivery, the added value. The European judges state that nothing in the Directive stipulates that all the criteria for awarding a contract have to be economic. Article 36 1 a) is the proof for this and mentions the aesthetic criteria in tenders which include criteria such as nitrogen oxide reductions and vehicle noise reduction levels. HKLwas one of the four production units (buses, trams, metro and track and property services) involved in the commercial undertaking of the municipality. Concordia complained that municipality's own company, the adjudicating authority regarded as one of the rare companies that propose a service that satisfies environmental criteria. It indicated that the principle of equality of treatment among companies had been breached. The Court believes that in the light of the facts in this case, it is impossible to answer this question.
The Finnish Supreme Administrative Court referred to the European Commission Communication of 11 March 1998 on "Public service contracts in the European Union", in which the Commission considered that it was legitimate to take into account environmental considerations in the choice of the most advantageous offer insofar as the entity organising the appeal for tenders gains a direct advantage form the ecological properties of the product.