Concordia Bus

Tuesday September 17th, 2002

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 27 August 1997 Helsinki City Council decided to introduce tendering progressively for the entire urban bus network. By letter of 1 September 1997, the city’s purchasing unit called for tenders for operating the network. According to the tender notice, the contract would be awarded to the undertaking whose tender was economically most advantageous overall to the city. Three categories of criteria would be used to assess this: the overall price asked for operation, the quality of the bus fleet, and the operator’s quality and environment programme.

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.

Unofficial document for media use only; not binding on the Court of Justice.
Available in English, Finnish, French, German and Swedish.
For the full text of the judgment, please consult our Internet page
www.curia.eu.int at approximately 3pm today.

For further information please contact Mr Reinier Van Winden:

Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731

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