Commission v Netherlands: ECJ 10 May 2012

ECJ Failure of a Member State to fulfil obligations – Directive 2004/18/EC – Procedures for the award of public works contracts, public supply contracts and public service contracts – Contract for the supply, installation and maintenance of dispensing machines for hot drinks, and the supply of tea, coffee and other ingredients – Article 23(6) and 23(8) – Technical specifications – Article 26 – Conditions for performance of the contract – Article 53(1) – Criteria for award of the contracts – Most economically advantageous tender – Products derived from organic agriculture and fair trade – Use of labels in the formulation of the technical specifications and the award criteria – Article 39(2) – Concept of ‘additional information’ – Article 2 – Principles for award of contracts – Principle of transparency – Articles 44(2) and 48 – Verification of the suitability and choice of participants – Minimum level of technical or professional abilities – Compliance with ‘criteria of sustainability of purchases and socially responsible business’
The court was asked as to the compatibility with Directive 2004/18 of a tender specification for drinks machines which contained generally expressed requirements relating to sustainability. The court stated: ‘The principle of transparency implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract . . As the Advocate General stated in point 146 of her opinion, it must be held that the requirements relating to compliance with the ‘criteria of sustainability of purchases and socially responsible business’ and the obligation to ‘contribute to improving the sustainability of the coffee market and to environmentally, socially and economically responsible coffee production’ are not so clear, precise and unequivocal as to enable all reasonably informed tenderers exercising ordinary care to be completely sure what the criteria governing those requirements are. The same applies, and all the more so, in relation to the requirement addressed to tenderers that they state in their tender ‘in what way [they] fulfil’ those criteria or ‘in what way [they] contribute’ to the goals sought by the contracting authority with regard to the contract and to coffee production, without precisely indicating to them what information they must provide.’

K Lenaerts, P
[2012] EUECJ C-368/10, [2012] 3 CMLR 11, [2013] All ER (EC) 804
Directive 2004/18/EC
OrderCommission v Netherlands ECJ 10-May-2012
ECJ Order – Failure of A Member State To Fulfil Obligations – allowing intervention by state of Denmark . .
OpinionCommission v Netherlands ECJ 15-Dec-2011
ECJ Opinion – Failure Of A Member State To Fulfil Obligations – Procurement – Organic Products – Fair Trade – friendly products environmentally and socially responsible – Sustainable Economics – Labels ‘Max . .

Cited by:
CitedHealthcare at Home Ltd v The Common Services Agency SC 30-Jul-2014
The court asked how to apply the concept in European law of ‘The reasonably well-informed and diligent tenderer’. The pursuer had had a contract for the delivery of healthcare services, but had lost it when it was retendered.
Held: When an . .

Lists of cited by and citing cases may be incomplete.


Updated: 18 December 2021; Ref: scu.535555