Case C‑368/10

European Commission

v

Kingdom of the Netherlands

(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 (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’)

Summary of the Judgment

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Contract for the supply and management of coffee machines — Technical specifications

(European Parliament and Council Directive 2004/18, as amended by Regulation No 1422/2007, Arts 2, 23(6), 44(2), 48 and 53(1)(a))

A Member State fails to fulfil its obligations under Articles 2, 23(6), 44(2) and 48 and under Article 53(1)(a) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1422/2007 when a contracting authority from that State, in a tendering procedure for a public contract for the supply and management of drink dispensing machines:

– has laid down a technical specification incompatible with Article 23(6) of Directive 2004/18 by requiring that certain products to be supplied were to bear a specific eco-label, rather than using detailed specifications;

– has established award criteria incompatible with Article 53(1)(a) of Directive 2004/18 by providing that the fact that certain products to be supplied bore specific labels would give rise to the grant of a certain number of points in the choice of the most economically advantageous tender, without listing the criteria underlying those labels and without allowing proof to be adduced by any suitable means that a product satisfied those underlying criteria;

– has established a minimum level of technical ability not authorised by Articles 44(2) and 48 of Directive 2004/18 by imposing, on the basis of suitability requirements and minimum capacity levels stated in the specifications applicable in the context of that contract, the condition that tenderers must comply with the ‘criteria of sustainable purchasing and socially responsible business’ and state how they comply with those criteria and ‘contribute to improving the sustainability of the coffee market and to environmentally, socially and economically responsible coffee production’, and

– has laid down a clause contrary to the obligation of transparency provided for in Article 2 of Directive 2004/18 by requiring tenderers to comply with ‘the criteria of sustainable purchasing and socially responsible business’ and to state how they comply with those criteria and ‘contribute to improving the sustainability of the coffee market and to environmentally, socially and economically responsible coffee production’.

(see para. 112, operative part)