# C_2005330EN.01000102.xml

| 24.12.2005 | EN | Official Journal of the European Union | C 330/1 |
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24.12.2005

EN

Official Journal of the European Union

C 330/1

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 27 October 2005

in Case C-158/03: Commission of the European Communities v Kingdom of Spain (1)

1

(Freedom of establishment - Freedom to provide services - Calls for tender issued by the Instituto Nacional de Salud - Health services consisting of home respiratory treatments - Condition for tendering - Evaluation criteria - Principle of non-discrimination)

(2005/C 330/02)

Language of the case: Spanish

In Case C-158/03 Commission of the European Communities (Agents: G. Valero Jordana and K. Wiedner) v Kingdom of Spain (Agent: S. Ortiz Vaamonde) — action under Article 226 EC for failure to fulfil its obligations, brought on 7 April 2003 — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, J. Malenovský, J.-P. Puissochet, S. von Bahr and U. Lõhmus, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 27 October 2005, in which it:

| 1. | Declares that, by including in the tendering specifications for a public contract for health services consisting of home respiratory treatments and other assisted breathing techniques, first, a tendering condition which requires an undertaking submitting a tender to have, at the time the tender is submitted, an office open to the public in the province or, as the case may be, the capital of the province where the service is to be supplied and, second, tender evaluation criteria which reward, by awarding extra points, the existence, at the time the tender is submitted, of oxygen production, conditioning and bottling plants situated, as the case may be, in Spain or less than 1 000 kilometres from the province in question or of offices open to the public in other specified towns in that province, and which, in the case of a tie between a number of tenders, favour the undertaking which has previously provided the service concerned, the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC; |
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1.

Declares that, by including in the tendering specifications for a public contract for health services consisting of home respiratory treatments and other assisted breathing techniques, first, a tendering condition which requires an undertaking submitting a tender to have, at the time the tender is submitted, an office open to the public in the province or, as the case may be, the capital of the province where the service is to be supplied and, second, tender evaluation criteria which reward, by awarding extra points, the existence, at the time the tender is submitted, of oxygen production, conditioning and bottling plants situated, as the case may be, in Spain or less than 1 000 kilometres from the province in question or of offices open to the public in other specified towns in that province, and which, in the case of a tie between a number of tenders, favour the undertaking which has previously provided the service concerned, the Kingdom of Spain has failed to fulfil its obligations under Article 49 EC;

| 2. | Dismisses the remainder of the application; |
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2.

Dismisses the remainder of the application;

| 3. | Orders the Kingdom of Spain to pay the costs. |
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3.

Orders the Kingdom of Spain to pay the costs.

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(1)  OJ C 135 of 07.06.2003.

1

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