Ruling allows bus tendering on environmental terms

In 1997 Helsinki Council called for tenders to operate its entire urban bus network. The tender notice stated that the contract would be awarded to the most economically advantageous offer, based on points scored on three criteria: overall cost of operation, quality of the bus fleet and the operator’s environment programme.

In 1998 HKL-Bussilikenne, a company operating natural gas-run buses, was awarded the tender but the firm that came second in the running, Concordia Bus Finland, protested that the decision to award additional points to the winning bus fleet, based on nitrous oxide and noise levels, was unfair and discriminatory. Concordia argued that points had effectively been awarded for using a type of bus that only HKL was able to offer.

On appeal to a Finnish Competition Council, Concordia was told that authorities were entitled to define the type of bus they wanted, and that all competitors had the possibility of acquiring gas-powered buses. It therefore concluded that Concordia had not been discriminated against.

Concordia then appealed to the Finnish Supreme Court, which referred questions relating to the case to the European Court of Justice. The most important question was whether Community legislation allows municipalities to tender contracts that include ecological specifications.

The Court of Justice ruled in favour of Helsinki Council, stating that ecological criteria can be taken into consideration provided they are specified in the contract and comply with the principle of non-discrimination. The Court of Justice judged that “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.”