# C_2014409EN.01002901.xml

| 17.11.2014 | EN | Official Journal of the European Union | C 409/29 |
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17.11.2014

EN

Official Journal of the European Union

C 409/29

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Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 29 August 2014 — Dr. Falk Pharma GmbH v DAK-Gesundheit

(Case C-410/14)

2014/C 409/41

Language of the case: German

Referring court

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Parties to the main proceedings

Applicant: Dr. Falk Pharma GmbH

Applicant:

Defendant: DAK-Gesundheit

Defendant:

Questions referred

Questions referred

The following questions are referred to the Court of Justice of the European Union under Article 267 TFEU for a preliminary ruling on the interpretation of 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 ... (1):

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| 1. | Does the concept of a ‘public contract’ under Article 1(2)(a) of Directive 2004/18/EC no longer apply if a contracting authority carries out an authorisation procedure in which it awards the contract without selecting one or more economic operators (‘openhouse model’)? |
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1.

Does the concept of a ‘public contract’ under Article 1(2)(a) of Directive 2004/18/EC no longer apply if a contracting authority carries out an authorisation procedure in which it awards the contract without selecting one or more economic operators (‘openhouse model’)?

| 2. | If the answer to question 1 is that the selection of one or more economic operators is a characteristic of a public contract, the following question arises: is the characteristic of the selection of economic operators within the meaning of Article 1(2)(a) of Directive 2004/18/EC to be interpreted, in the light of Article 2 of that directive, as meaning that contracting authorities may refrain from selecting one or more economic operators by way of an authorisation procedure only if the following conditions are satisfied:






  — | the carrying out of an authorisation procedure is published at European level, |
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2.

If the answer to question 1 is that the selection of one or more economic operators is a characteristic of a public contract, the following question arises: is the characteristic of the selection of economic operators within the meaning of Article 1(2)(a) of Directive 2004/18/EC to be interpreted, in the light of Article 2 of that directive, as meaning that contracting authorities may refrain from selecting one or more economic operators by way of an authorisation procedure only if the following conditions are satisfied:

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the carrying out of an authorisation procedure is published at European level,

| — | clear rules concerning the conclusion of the contract and acceding to the contract are set, |
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clear rules concerning the conclusion of the contract and acceding to the contract are set,

| — | the terms of the contract are set in advance in such a way that no economic operator is able to influence the content of the contract, |
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the terms of the contract are set in advance in such a way that no economic operator is able to influence the content of the contract,

| — | economic operators are granted the right to accede to the contract at any time; |
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economic operators are granted the right to accede to the contract at any time;

| — | the contracts concluded are published at European level? |
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the contracts concluded are published at European level?

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(1)  OJ 2004 L 134, p. 114.

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