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I – Introduction
5. The present reference for a preliminary ruling is, therefore, highly significant since it concerns general principles of Community law while also recognising that the solution may be founded only on Community legal provisions. The Court must have regard to both spheres in order to provide the Italian court with an effective response to enable it to resolve the dispute.
II – The legal framework
A – Community law
‘If, for a given contract, tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received.
The contracting authority may take into consideration explanations which are justified on objective grounds including the economy of the construction method, or the technical solution chosen, or the exceptionally favourable conditions available to the tenderer for the execution of the work, or the originality of the work proposed by the tenderer.
If the documents relating to the contract provide for its award at the lowest price tendered, the contracting authority must communicate to the Commission the rejection of tenders which it considers to be too low.
…’
B – The Italian legislation
10. Article 30(4) of Directive 97/37 was transposed into Italian law by Article 21(1)(a) of Law No 109/94 of 11 February 1994, the framework law on public works, appended to the original text by Article 7 of Law No 216/95 of 2 June 1995. In accordance with that provision:
‘In cases of awards of contracts for works to the value of ECU 5 000 000 or above on the basis of the lowest-bid criterion mentioned in paragraph 1, the authority concerned must assess the irregular nature of the tenders referred to in Article 30 of Council Directive 93/37/EEC of 14 June 1993 in relation to all tenders undercutting the indicative price to an extent equal to or greater than the arithmetical mean of the percentage discounts of all the tenders admitted, excluding 10%, rounded up to the nearest digit, of those offering the highest and lowest discounts respectively, increased by the arithmetical mean of the difference in the percentage discounts which are in excess of the said mean.
For that purpose, the public administration may take account, within 60 days from the submission of tenders, only of explanations based on the economy of the construction method, the technical solutions chosen, or the exceptionally favourable conditions available to the tenderer in question, excluding, in any event, explanations relating to those elements for which minimum values have been set by laws, regulations or administrative provisions, or for which values may be ascertained from official data.
Tenders must be accompanied, when submitted, by explanations concerning the most significant price components, indicated in the tender notice or in the letter of invitation, the total amount of which must not be less than 75% of the basic value of the bid.
For public works contracts with a value below the Community threshold only, the authority concerned shall automatically exclude tenders with a percentage discount equal to or greater than the percentage referred to in the first subparagraph. The automatic exclusion procedure shall not apply if the number of valid tenders is lower than five.
11. Legislative Decree No 163 of 12 April 2006 transposes Directive 2004/18 into national law. The final subparagraph of Article 21(1)(a) of Law No 109/94 has been removed from the provisions governing abnormally low tenders (Articles 86 to 88).
III – The main proceedings
12. By decision of 28 January 2003, Turin Municipal Council (Comune di Torino) resolved to deprive of all effectiveness pro futuro Article 21(1)(a) of Law No 109/94 in order to prevent the automatic exclusion of abnormally low tenders so that, when awarding municipal contracts, including those below the Community threshold, such tenders would be verified in accordance with the inter partes procedure laid down in Directive 93/37.
13. The Italian undertakings SECAP SpA (Case C‑147/06) and Santorso Soc. Coop. arl (Case C‑148/06) participated in two procurement procedures announced by the Council for the execution of certain works, the value of which did not exceed the Community threshold. The tender notices stipulated the criterion of the lowest price, subject to the verification of anomalous tenders, and stated that there would be no automatic rejection of abnormally low tenders, in accordance with the decision of 28 January 2003. The tenders submitted by the two undertakings emerged as the first of the ‘regular’ tenders but, before making a decision, the municipal authorities declared that the tenders which appeared to be anomalous were in fact valid and awarded the contracts to other tenderers.
15. The Consiglio di Stato, which is seised of the appeals lodged by the appellants, accepts their arguments and rejects the interpretation of the regional court. However, the Consiglio di Stato is also mindful of the requirements of Community law, which have been invoked by Turin Municipal Council, and has therefore referred the following questions to the Court for a preliminary ruling under Article 234 EC:
‘(1) Does the rule laid down in Article 30(4) of Directive 93/37/EEC or the similar rule contained in Article 55(1) and (2) of Directive 2004/18/EC (in cases where that is the relevant provision), that, where tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, constitute a fundamental principle of Community law?
(2) If the answer to the preceding question is in the negative: Is the rule established by Article 30(4) of Directive 93/37/EEC or the similar rule contained in Article 55(1) and (2) of Directive 2004/18/EC (in cases where that is the relevant provision), according to which, if tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, while not presenting the characteristics of a fundamental principle of Community law, nevertheless an implied consequence of or a “principle deriving from” the principle of competition, considered in conjunction with the principles of administrative transparency and non-discrimination on grounds of nationality and is it therefore, as such, directly binding, taking precedence over possibly incompatible national provisions adopted by the Member States to regulate public works contracts to which Community law is not directly applicable?’
IV – The procedure before the Court of Justice
16. By order of 10 May 2006, the President of the Court joined the two proceedings, since they share the same subject-matter.
17. The appellant undertakings in the main proceedings, Turin Municipal Council, the Austrian, French, German, Italian, Lithuanian, Netherlands and Slovak Governments and the Commission have submitted written observations which are varied in approach but may be grouped into two categories. The first category supports the position of Turin Municipal Council and includes the observations of Lithuania, Slovakia and the Commission, while the second category comprises the observations of all the other participants in these proceedings, which propose that the questions referred should be answered in the negative. At the hearing on 25 October 2007, oral argument was presented by the representatives of Santorso Soc. coop. arl, Turin Municipal Council, the German, Italian and Lithuanian Governments and the Commission.
V – Analysis of the questions referred for a preliminary ruling
19. It is therefore appropriate to examine the nature of that rule in order to determine whether it is part of primary Community law and thus transcends Directive 93/37.
A – The starting point
21. That view, which is encapsulated in recital 2 in the preamble to Directive 2004/18, is well established in the annals of the Court. In the judgment in Telaustria and Telefonadress, the Court held that contracting entities are bound to comply with the rules of the Treaty when awarding contracts which are excluded from the scope of the sectoral directives (paragraph 60). That case-law was reiterated in the judgment in HI (paragraph 47) and followed more recently, quite naturally and without reference to the previous cases, in the Coname judgment.
22. Next, in the order in Vestergaard, the Court pointed out that the mere fact that the strict special procedures laid down in those directives are not appropriate in the case of public contracts of small value does not mean that those contracts are not subject to Community law, since they must also comply with the Treaty (paragraphs 19 to 21) if they are of interest to operators established in other Member States. In Case C‑264/03 Commission v France, the Court took the same view (paragraph 33).
23. The setting of a financial threshold above which contracts are subject to public procurement directives is based on a single premiss, namely that contracts of small value do not attract operators established outside national borders; such contracts are thus devoid of Community implications. However, that rebuttable presumption is open to evidence to the contrary and therefore, as the Commission argues in its written observations, it must be borne in mind that a contract of small value may be of interest to operators in other Member States by reason, for example, of the fact that the place where the contract is to be performed may be close to their own country or because it would be beneficial to their commercial strategy.
24. Accordingly, that quantitative limit clearly serves only as a guideline and it therefore follows that there is nothing to prevent a contract of small value from being of interest in other Member States, giving rise to the factor which triggers the application of Community law and its objectives. Consequently, the procedures for the award of those contracts which, despite their limited interest, have a European dimension must comply with the principles laid down in the Treaty, subject always to the fact that contracts for values higher than the amounts indicated in the directives must comply with stricter coordinating provisions.
25. One such provision, Article 30(4) of Directive 93/37, which is applicable ratione temporis to the disputes in the main proceedings and is reproduced in Article 55(1) and (2) of Directive 2004/18, prohibits the automatic exclusion of abnormally low tenders. The Consiglio di Stato asks whether that prohibition constitutes a fundamental rule of Community law or whether it is, at the very least, a consequence of the principle of competition, considered in conjunction with the principles of administrative transparency and non-discrimination on grounds of nationality, which must also be complied with when awarding contracts which do not fall within the scope of those directives.
28. Clearly, the ‘fundamental principles’ of the Treaty, which are capable of limiting the powers of the Member States in procedures for the award of contracts excluded from the coordinating provisions laid down in the sectoral directives, are the same as the principles referred to in the preambles to those directives, to which the Court has drawn particular attention.
29. Moreover, that should surprise no one since, as recital 2 in the preamble to Directive 2004/18 makes clear, the provisions of that directive are founded on those fundamental principles. Indeed, those directives pursue a limited direct aim, namely the coordination of procedures governed by the sectoral directives with a view to encouraging the development of effective competition in the field of public contracts for the purposes of securing the fundamental freedoms of European integration. More particularly, the aim is to eliminate barriers to freedom of movement and to protect the interests of economic operators in one Member State who wish to sell their goods or services to contracting entities in other Member States.
30. Reversing that perspective, it becomes clear that the aim is twofold: to avoid the risk of preference being given to national tenderers (buy national) and to ensure that the body responsible for awarding the contract is guided by considerations other than economic ones (thus, the essential award criterion is always that of the lowest or most economically advantageous tender).
31. In those circumstances, the first question can only be answered in the negative, since, in a procedure for the award of a public works contract, the automatic exclusion of abnormally low tenders does not run counter to any fundamental principle of the Treaty. Neither the fundamental freedoms nor the prohibition of discrimination require that, in all circumstances and as an absolute rule, a tenderer who submits such a bid must have the opportunity to be heard before a decision is taken on whether to admit his tender.
32. In particular, that is because logic dictates that the principle of effectiveness, which also applies in the field of Community public procurement law, must operate in this sphere. Finally, the management of public interests necessitates such effectiveness, which, on occasions, is in conflict with the pace of a selection procedure complete with guarantees.
C – ... but more than a mere rule of positive law
33. Article 30(4) of Directive 93/37 is not a discretionary – perhaps even capricious – provision of the legislature, which has no connection to the real world and might just as well never have existed.
34. I have already pointed out that, in Lombardini and Mantovani, the Court described as ‘essential’ the examination procedure for which that measure makes provision. Underlying the use of that adjective is the belief that the inter partes procedure for the verification of abnormally low tenders is vital in order to achieve effective competition in the field of public procurement and to safeguard freedom of movement, which, as I stated in my Opinion in those joined cases, presupposes that tenderers must be able to participate on an equal basis, without any discrimination whatsoever (paragraph 24).
35. The prohibition of discrimination, particularly where it is based on nationality, entails a duty of transparency to ensure that, for the benefit of any potential tenderer, there is a degree of advertising sufficient to enable the market to be opened up to competition and that the impartiality of procurement procedures can be monitored, as the Court declared in Unitron Scandinavia and 3‑S (paragraphs 31 and 32).
36. In that context, it is reasonable to ask, as does the Consiglio di Stato, whether, since it does not state a fundamental principle of Community law, Article 30(4) of Directive 93/37 comprises one of the logical consequences of Community law, which have a binding effect on public contracts, regardless of whether they fall within the scope of the directives, if they are of Community interest.
38. The concept of an abnormally low tender is not made up of abstract features; on the contrary, it is defined by reference to the contract to be awarded and to the work involved. It therefore has the characteristics of an indeterminate concept, which at first sight is imprecise but which may be clarified by reference to the specific nature of the contract.
39. That aspect is more marked in the Italian system, which defines the concept, having regard to the subject-matter of the contract and to the value of the different bids, by means of a mathematical formula for setting the anomaly threshold.
40. The tenderers who, as a result of advertising, are aware of the contract and its nature draw up their bids in secret, so that each of them knows only the details of his own bid. In general, in view of the fact that the system gives preference to the lowest tender or the most economically advantageous one, very low bids are submitted with the aim of offering the lowest price, even at the risk of reducing the profits of the undertaking concerned.
41. Accordingly, all parties take the same risk that, once the sealed envelopes are opened, their tender will be treated as anomalous.
42. However, that balance is disrupted where one or more of the tenderers have at their disposal information which is capable of influencing the fixing of the anomaly threshold, thereby removing the essential equality.
43. In the light of the facts alleged by Turin Municipal Council, the Consiglio di Stato outlines a scenario, which the Court must bear in mind, whereby the automatic exclusion of excessive discounts, required by Article 21(1)(a) of Law No 109/94, encourages collusive agreements between undertakings in order to influence ex ante the outcome of the selection process.
44. Community law does not remain on the sidelines when faced with such a situation.
45. It is clear that the automatic exclusion of abnormally low tenders in accordance with the first subparagraph of Article 21(1)(a) is not in itself discriminatory, in view of the objective nature of that provision. In the Opinion in Lombardini and Mantovani, I stated that Italian law implements a mathematical, automatic system for setting the irregularity threshold, which is perfectly in line with the aims of Directive 93/37, allowing the market to establish the threshold, above which a tender may be considered irregular, for each contract. All applicants are on an equal footing and no party has any advantage in submitting its bid (points 33 and 35). Thus, the automatic rejection of anomalous tenders, without giving the parties concerned the opportunity to provide explanations, does not discriminate against anyone.
46. However, the situation is different if, as a result of collusive agreements, a group of undertakings, usually ones operating in the territorial market of the contract, collude with one another to draw up almost identical bids, with only minimal differences between them, so that the bids submitted by competitors who are not party to those agreements are classified as abnormally low and those tenderers have no opportunity to submit explanations or provide evidence of the viability of their bids.
49. To the foregoing objective, abstract view, which transcends the individual interests of the undertakings participating in a selection process, another, subjective, view must be added, according to which the rights of those undertakings, in particular the right not to be deprived of the opportunity to be heard in administrative procedures, are extremely important.
50. The right not to be deprived of the opportunity to be heard is expressly provided for in the legal systems of all the Member States and forms part of the right to good administration enshrined in Article 41, under Chapter V on citizens’ rights, of the Charter of Fundamental Rights of the European Union. Article 41(2) recognises the right of every person to be heard before any individual measure which would affect him or her adversely is taken.
51. The Charter, whose importance the Court has recently made clear, in particular in the judgments in Parliament v Council and Advocaten voor de Wereld, requires that, before a tenderer is excluded, he must have the opportunity to state his views in order to persuade the contracting authority that his bid is genuine.
52. I agree with the Commission that that right, interpreted in isolation, does not mean that an undertaking which appears to have submitted an irregular bid must always be able to submit explanations, since, in principle, such an undertaking is already protected by the impartial examination of tenders in accordance with predetermined, objective, non-discriminatory criteria. However, a tenderer at risk of being excluded as a result of a collusive agreement between other parties is at a disadvantage, and all the more so if, in addition, he is not permitted to provide explanations.
53. Thus, the right to be heard by the administrative authorities is the basis for arguing against the automatic exclusion of abnormally low tenders, since, as I have indicated, the notion of ‘abnormality’ is an indeterminate legal concept which must be substantiated in each case by reference to the particular circumstances of the candidates.
54. Accordingly, the right to good administration militates against the abolition of the inter partes procedure for the verification of tenders before a decision is taken on their merits and this extends to contracts excluded from the scope of the sectoral directives, because it would entail a weakening of the guarantees laid down in what are known as the ‘remedies’ directives.
5. The discretion of the Member States
55. It follows from the foregoing that Community law precludes national legislation under which contracting authorities are bound automatically to reject abnormally low tenders for public contracts excluded from the scope of the directives on the coordination of award procedures. On the contrary, under Community law, such authorities must have the opportunity to decide, depending on the circumstances in each case, whether it is appropriate to allow the candidates to be heard in order to verify, in an inter partes procedure, the composition of their tenders.
56. However, the freedom of action accorded to the Member States means that they are not obliged to take the route provided for in Article 30(4) of Directive 93/37 and permits them to establish the manner in which the rights conferred by the Community legal system on individuals are to be protected, subject only to the limitations imposed by the principles of equivalence and effectiveness, namely that the procedures may not be less favourable than those designed for the protection of rights under national law and must be organised in such a way that, in practice, they do not make it difficult or virtually impossible to achieve the aim pursued.
VI – Conclusion
57. In the light of the foregoing considerations, I propose that the Court replies to the Consiglio di Stato in the following manner:
The principles of free competition, administrative transparency and non-discrimination on grounds of nationality, which govern Community public procurement law, together with the right to good administration preclude national legislation which, with regard to the procedure for the award of public contracts excluded from the directives governing that field, obliges the contracting authority automatically to reject abnormally low tenders without providing for any inter partes verification procedure.
(1) .
(2) – OJ 1993 L 199, p. 54.
(3) – Joined Cases C‑285/99 and C‑286/99 [2001] ECR I‑9233.
(4) – In addition to Directive 93/37 on the award of public works contracts, Council Directive 77/62/EEC of 21 December 1976 (OJ 1977 L 13, p. 1), as subsequently amended by Council Directive 93/36/EEC of 14 June 1993 (OJ 1993 L 199, p. 1), governed the award of public supply contracts. The coordination of the procedures for the award of public service contracts was provided for in Council Directive 92/50/EEC of 18 June 1992 (OJ 1992 L 209, p. 1). Those measures (amended by European Parliament and Council Directive 97/52/EC of 13 October 1997 (OJ 1997 L 328, p. 1)) were consolidated and merged in a single provision: Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).
(5) – This type of ruse has always existed and, in The Odyssey, translated by E.V. Rieu, revised translation by D.C.H. Rieu, Penguin, London, 1991, Homer recounts numerous examples of the legendary guile of Ulysses, such as the adventure in Book 9 where the hero gets Polyphemus, who is holding him prisoner, drunk and tells him that his name is Nobody. Taking advantage of the drowsiness caused by the wine, Ulysses plunges a red-hot stake made of olive wood into Polyphemus’ one eye. Hearing the Cyclops’ cries for help, his fellow Cyclopes ask what is happening to him, who is attacking him, to which Polyphemus replies ‘… it’s Nobody’s treachery, not violence, that is doing me to death’, thus ensuring that they do not come to his aid (p. 120).
(6) – Directive concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition, Series I, Chapter 1971 (II), p. 682).
(7) – That was the finding of the Court in the judgment in Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraphs 16, 18 and 19, which prohibited the automatic exclusion of tenders determined in accordance with mathematical criteria (point 1 of the operative part). That case-law was reiterated in the judgment in Case C‑295/89 Donà Alfonso [1991] ECR I‑2967. Prior to this was the judgment in Case 76/81 Transporoute [1982] ECR 417, paragraph 18.
(8) – One of those amendments affected Article 29(5), which was given new wording by Directive 89/440/EEC of 18 July 1989 (OJ 1989 L 210, p. 1).
(9) – According to the wording in Commission Regulation (EC) No 2083/2005 of 19 December 2005 (OJ 2005 L 333, p. 28).
(10) – Gazzeta ufficiale della Repubblica Italiana (‘GURI’) No 41 of 19 February 1994, p. 5.
(11) – GURI No 127 of 2 June 1995, p. 3. The full text is the result of the adoption, with amendments, of Decree-Law No 101/1995 of 3 April 1995 on urgent regulations concerning public works (GURI No 78 of 3 April 1995, p. 8).
(12) – Wording inserted by Article 7 of Law No 415/1998 of 18 November 1998 (GURI No 284 of 4 December 1998, Ordinary Supplement, p. 5).
(13) – GURI No 100 of 2 May 2006.
(14) – The conversion of a former palace into a youth hostel (EUR 4 699 999) and the environmental upgrading of Corso Francia, between Piazza Statuto and Piazza Bernini (EUR 5 172 579), respectively.
(15)– Albeit with certain nuances vis-à-vis the stance of Lithuania and Turin Municipal Council in that, when contending that the first question should receive a negative reply, the Slovak Government refuses to dissociate the rule in Article 30(4) of Directive 93/37 from the principles laid down in the Treaty, thereby concurring with the decision of the Municipal Council.
(16)– Opinion in Case C‑412/04 Commission v Italy, pending before the Court, points 44 to 47.
(17)– ‘The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency …’
(18)– And in those of the Commission, specifically in the Commission interpretative communication on the Community law applicable to contract awards not or not fully subject to the provisions of the public procurement directives (OJ 2006 C 179, p. 2, in particular pp. 5 and 6).
(19)– Case C‑324/98 [2000] ECR I‑10745.
(20)– In that case, Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84), which was replaced by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 (OJ 2004 L 134, p. 1).
(21)– Case C‑92/00 [2002] ECR I‑5553. In fact, rather than a contract excluded from one of the directives, that judgment concerned a procedure not provided for in the provision concerned. Under the Treaty, a decision to withdraw an invitation to tender must be subject to a review procedure but that requirement was not reflected in Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 92/50.
(22)– Case C‑231/03 [2005] ECR I‑7287. In paragraph 16 of that judgment, the Court recalled that the award of such a concession (for the management of a public gas-distribution service to a company in which there is a majority public holding) is not governed by any of the directives regulating the field of public contracts. In the absence of any such legislation, the consequences in Community law of the award of such concessions must be examined in the light of primary law and, in particular, of the fundamental freedoms provided for by the Treaty. The Court took the same view in its judgments in Case C‑458/03 Parkíng Brixen [2005] ECR I‑8585, paragraph 46, and Case C‑410/04 ANAV [2006] ECR I‑3303, paragraph 18.
(23)– Case C‑59/00 [2001] ECR I‑9505.
(24)– In that order, the Court ruled that it was contrary to Article 28 EC to include in the contract documents for a public works contract of small value a clause requiring, without further explanation, the use of products of a certain make.
(25)– Paragraph 20 of the judgment in Coname , interpreted a contrario .
(26)– Case C‑264/03 [2005] ECR I‑8831.
(27)– See the second sentence of recital 2 in the preamble to Directive 2004/18.
(28)– Fratelli Costanzo , paragraph 18.
(29)– Case C‑360/96 BFI Holding [1998] ECR I‑6821, paragraph 41; Case C‑380/98 University of Cambridge [2000] ECR I‑8035, paragraph 16; and Case C‑237/99 Commission v France [2001] ECR I‑939, paragraph 41.
(30)– Case C‑44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I‑73, paragraph 33; BFI Holding , paragraph 42; University of Cambridge , paragraph 17; and Case C‑237/99 Commission v France , paragraph 42.
(31)– Point 30 of my Opinion in Lombardini and Mantovani .
(32)– The Court observed in that judgment that it is apparent from the very wording of that provision that the contracting authority is under a duty to identify suspect tenders, to allow the undertakings concerned to demonstrate their genuineness, to assess the merits of the explanations provided, and to take a decision as to whether to admit or reject those tenders (paragraph 55).
(33)– Case C‑275/98 [1999] ECR I‑8291. The Court put forward the same view in the judgments in Telaustria and Telefonadress , paragraphs 61 and 62, and Parking Brixen, paragraph 49.
(34)– Point 32 of my Opinion in Lombardini and Mantovani .
(35)– OJ 2000 C 364, p. 1.
(36)– Case C‑540/03 [2006] ECR I‑5769.
(37)– Case C‑303/05 [2007] ECR I-3633. As to the nature of the Charter, see points 76 to 79 of my Opinion in that case.
(38)– Directive 89/665 and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14).
(39)– In Case C‑247/02 Sintesi [2004] ECR I‑9215, the Court declared void a national provision which restricted contracting authorities to taking account of a single criterion for the award of public works contracts, thereby depriving them of the possibility of taking into consideration the nature and specific characteristics of such contracts, and of choosing the criterion most likely to ensure free competition and thus the best tender (paragraph 40).
(40)– According to settled case-law and first expressed in Case 33/76 Rewe [1976] ECR 1989.