C-331/04, ATI EAC Srl e Viaggi di Maio Snc v ACTV Venezia SpA

Article 36 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts and Article 34 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors must be interpreted as meaning that Community law does not preclude a jury from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contract documents or the contract notice were prepared, provided that that decision:

– does not alter the criteria for the award of the contract set out in the contract documents or the contract notice;

– does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation;

– was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.

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