Keywords

Summary



Keywords

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1. Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° Article 30 of the Treaty ° Scope ° Prohibition of the importation of narcotic drugs covered by the 1961 Single Convention and marketable under it ° Included ° Maintenance of the measure pursuant to Article 234 of the Treaty ° Irrelevant

(EEC Treaty, Arts 30 and 234)

2. Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° Article 30 of the Treaty ° Direct effect ° Function of the national court in the light of obligations towards non-member countries resulting from agreements predating the EEC Treaty and irreconcilable with the obligations arising under Article 30 ° Application of the rule of precedence of Article 234

(EEC Treaty, Arts 30 and 234)

3. Free movement of goods ° Derogations ° Article 36 of the Treaty ° Scope ° Measure designed to ensure the survival of an undertaking ° Excluded ° Protection of public health ° Measure designed to guarantee, through a prohibition of imports, the reliability of supplies of narcotic drugs for medical purposes offered by recourse to national production ° Whether permissible ° Conditions

(EEC Treaty, Art. 36)

4. Approximation of laws ° Procedures for awarding public supply contracts ° Directive 77/62 ° Award of contracts ° Most economically advantageous tender ° Criteria ° Reliability of supplies ° Whether permissible ° Conditions

(Council Directive 77/62, Art. 25)

Summary

1. Article 30 of the Treaty applies to a national practice prohibiting importation of narcotic drugs covered by the 1961 Single Convention on Narcotic Drugs and marketable under that convention.

In so far as they are goods taken across a frontier for the purposes of commercial transactions, such drugs are subject to Article 30, whatever the nature of those transactions. The fact that the prohibition of importation may result from an international agreement predating the Treaty or accession by a Member State and that the Member State maintains the measure pursuant to Article 234, despite the fact that it constitutes a barrier, does not remove it from the scope of Article 30, since Article 234 takes effect only if the agreement imposes on a Member State an obligation that is incompatible with the Treaty.

2. Article 30 of the Treaty is to be interpreted as requiring a Member State to ensure that this provision is fully effective by disapplying a national practice contrary to it unless that practice is necessary in order for the Member State concerned to comply with obligations towards non-member countries laid down in an agreement concluded prior to entry into force of the Treaty or to accession by that Member State.

In proceedings for a preliminary ruling, however, it is not for the Court of Justice but for the national court to determine which obligations are imposed by an earlier international agreement on the Member State concerned and to ascertain their ambit so as to be able to determine the extent to which they thwart application of Articles 30 and 36 of the Treaty. In that connection, when an international agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to Community law, the Member State must refrain from adopting such a measure.

3. A national practice of refusing licences for importation of drugs from another Member State is not covered by the derogation provided for in Article 36 of the Treaty if it is based on the need to safeguard an undertaking' s survival but that derogation may apply to it if protection of the health and life of humans requires a reliable supply of drugs for essential medical purposes to be safeguarded and that objective cannot be achieved as effectively by measures that are less restrictive of intra-Community trade than is an exclusive supply established in favour of national production.

4. Directive 77/62 coordinating procedures for the award of public supply contracts, as amended by Directive 88/295, is to be interpreted as authorizing the bodies covered by that directive which wish to obtain a narcotic drug for medical purposes, in this case diamorphine, to award the contract on the basis of the tendering undertakings' ability to provide reliable and continuous supplies to the Member State concerned.

Provided that it is clearly indicated as a criterion for the award of a contract, reliability of supplies is one of the criteria which may be taken into account under Article 25 of the directive in order to determine the most economically advantageous tender for a contract for the supply, to the authorities concerned, of the product in question.