Regarding a Court of Justice ruling. New examples have been added to those already mentioned in this section on several occasions, proving that European institutions (both political and legal) increasingly take account of environmental, social and ethical considerations when implementing the legislation of the large market without borders. The European common market is now sufficiently well-established, consolidated legally-speaking and accepted by public opinion, for it no longer to be necessary to give absolute and universal priority to the letter of its rules over all other considerations. Two Court of Justice rulings (coming on top of the very important one of last June on "golden shares") and a Council legislative guideline have confirmed this.
The Court of Justice said that the city of Helsinki was right in taking into consideration ecological criteria in allocating the management of an urban transport system by bus. The local authorities were taken on by a rival, rejected because, to assess the tenders received, they had allocated additional points to a company that had proposed less polluting and less noisy buses. Certainly, the Court did not recognise that the local authority had unconditional discriminatory powers: it made a point of stipulating that the additional criteria must be explicitly set out in the call for tenders and that the principle of non discrimination had to be respected. Under these conditions, the "economically more advantageous" bid (which, as a general rule, has to be chosen) is not necessarily the cheapest. The Court did not limit itself to establishing this principle; it even set out a non-restrictive list of licit criteria, among which, alongside the price, we find not only quality, technical value and the time-scale for delivery of the goods proposed, but also the "aesthetic and functional nature" of these goods and after-sales services (see our bulletin of 19 September, p.6).
Price is not the only criterion. The "Competitiveness/Internal Market" Council had this ruling in mind when , last week, it adopted its political stance (which will rapidly be transformed into a "common position" in the legal sense, in view of the European Parliament's second reading) on the "public procurement" draft directive for the "energy, transport, water and mail" sectors (see our bulletin of 1 October, p.9). By following up the guidelines of the European Commission (the additional criteria already appeared in its proposal) and the pressing demands of the Belgian delegation, the Council opted for environmental criteria, and, in its recitals, cited social criteria (for example, employment of the disabled). The European Parliament would like the text to be even more explicit; there is doubtless room for EP/Council arrangements on second reading. It is clear that the new guideline must not underrate the economic and financial nature of public procurement; what is important, is that the adjective "economic" is interpreted with a certain largess of mind and that price is not the only criterion to designate the most economically advantageous bid…
Some State aid is licit if… The second Court ruling that I would like to cite relates to a Spanish aid scheme for the purchase of industrial vehicles. The Commission had considered the scheme illicit and had asked for the aid to be recovered from companies that benefited from it. The government in Madrid had then asked the Court to annul the essential part of the Commission's decision, pointing out that the aid in question was intended to pursue the objectives of improving road safety and environmental protection (other reasons for an annulment invoked by Spain are foreign to the purpose of these considerations). By saying that the Spanish Government was right, the Court of Justice said that the Commission had not provided proof that the aid in question was not compatible with the Community framework of aid to the environment. The Commission did not say that the Commission was wrong, but that it had to come up with more reasons for the aforementioned aspect. What I retain from the ruling it that the aid in question is licit if (by facilitating the renewal of the Spanish fleet of lorries and buses) it actually does contribute to improving road safety and environmental protection. The reality of this positive effect determines whether the aid is licit or not.
The two cases described only represent one aspect of a more general tendency (already observed in several previous Court of Justice rulings, regarding, for example, the free movement of goods) that, for me, corresponds to implementation of Cicero's golden rule: "summum jus, summa iniuria". It's a partial, but non-negligible, aspect of the European model of society.
(F.R.)