Judgment of the Court (Fifth Chamber) of 27 February 2003 in Case C-373/00 (Reference for a preliminary ruling from the Vergabekontrollsenat des Landes Wien): Adolf Truley GmbH v Bestattung Wien GmbH (Directive 93/36/EEC — Public supply contracts — Concept of "contracting authority" — Public-law body — Funeral undertaking)
Date: 2003-04-26
Institutions: Court of Justice
Subjects: award of contract, death, freedom to provide services, interpretation of the law, public contract, supplies contract

26.4.2003

EN

Official Journal of the European Union

C 101/3

4. Where it appears that the institution of the place of stay has
wrongly refused to provide the benefits in kind referred to in
Article 31 of Regulation No 1408/71, as amended and
updated by Regulation No 2001/83, as amended by Regu-
lation No 3096/95, and the institution of the place of
residence, on being advised of that refusal, has declined to
contribute, as it
to facilitating the correct
application of that provision, it is for the latter institution,
without prejudice to the possible liability of the institution of
the place of stay, to reimburse directly to the insured person the
cost of the treatment he has had to bear, so as to guarantee him
a level of funding equivalent to that which he would have
enjoyed had the provisions of that article been complied with.

is obliged to,

5.

In the latter case, Articles 31 and 36 of Regulation No 1408/
71, as amended and updated by Regulation No 2001/83, as
amended by Regulation No 3096/95, and Articles 31 and 93
of Regulation No 574/72, as amended and updated by
Regulation No 2001/83, as amended by Regulation
No 3096/95, preclude national legislation from subjecting
such reimbursement to the obtaining of ex post facto authoris-
ation which is granted only in so far as it is shown that the
illness which necessitated the treatment in question manifested
itself suddenly during the stay, making that treatment immedi-
ately necessary.

( 1) OJ C 335 of 25.11.2000.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 27 February 2003

in Case C-327/00 (Reference for a preliminary ruling from
the Tribunale amministrativo regionale per la Lombardia):
Santex SpA v Unità Socio Sanitaria Locale n. 42 di Pavia (1)

(Directive 93/36/EEC — Public supply contracts — Directive
89/665/EEC — Review procedures applicable to public
contracts — Limitation period — Principle of effectiveness)

(2003/C 101/05)

(Language of the case: Italian)

before that court between Santex SpA and Unità Socio
Sanitaria Locale n. 42 di Pavia, interveners: Sca Mölnlycke
SpA, Artsana SpA and Fater SpA, on the interpretation of
Article 22 of Council Directive 93/36/EEC of 14 June 1993
coordinating procedures for the award of public supply
contracts (OJ 1993 L 199, p. 1) and Article 6(2) EU, the Court
(Sixth Chamber), composed of: J.-P. Puissochet, President of
the Chamber, R. Schintgen and V. Skouris (Rapporteur),
F. Macken and J.N. Cunha Rodrigues, Judges; S. Alber, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 27 February 2003, in which it has
ruled:

the award of public

Council Directive 89/665/EEC of 21 December 1989 on the
coordination of the laws, regulations and administrative provisions
relating to the application of review procedures to the award of public
supply and public works contracts, as amended by Council Directive
92/50/EEC of 18 June 1992 relating to the coordination of
procedures for
service contracts, must be
interpreted as imposing on the competent national courts, where it is
established that, by its conduct, a contracting authority has rendered
impossible or excessively difficult the exercise of the rights conferred
by the Community legal order on a national of the Union who has
been harmed by a decision of that contracting authority, an obligation
to allow as admissible pleas in law alleging that the notice of
invitation to tender is incompatible with Community law, which are
put forward in support of an application for review of that decision,
by availing itself, where appropriate, of the possibility afforded by
national law of disapplying national rules on limitation periods,
under which, when the period prescribed for bringing proceedings for
review of the notice of invitation to tender has expired, it is no longer
possible to plead such incompatibility.

(1) OJ C 36 of 4.11.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 27 February 2003

in Case C-373/00 (Reference for a preliminary ruling from
the Vergabekontrollsenat des Landes Wien): Adolf Truley
GmbH v Bestattung Wien GmbH (1)

(Directive 93/36/EEC — Public supply contracts — Concept
of ‘contracting authority’ — Public-law body — Funeral
undertaking)

(2003/C 101/06)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-327/00: Reference to the Court under Article 234
EC by the Tribunale amministrativo regionale per la Lombardia
(Italy) for a preliminary ruling in the proceedings pending

In Case C-373/00: Reference to the Court under Article 234
EC by the Vergabekontrollsenat des Landes Wien (Austria) for
a preliminary ruling in the proceedings pending before that

C 101/4

EN

Official Journal of the European Union

26.4.2003

court between Adolf Truley GmbH and Bestattung Wien
GmbH, on the interpretation of Article 1(b) of Council
Directive 93/36/EEC of 14 June 1993 coordinating procedures
for the award of public supply contracts (OJ 1993 L 199,
p. 1), the Court (Fifth Chamber), composed of: M. Wathelet,
President of the Chamber, C.W.A. Timmermans (Rapporteur),
P. Jann, S. von Bahr and A. Rosas, Judges; S. Alber, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 27 February 2003, in which it has
ruled:

1.

2.

3.

The term ‘needs in the general interest’ in the second subpara-
graph of Article 1(b) of Council Directive 93/36/EEC of
14 June 1993 coordinating procedures for the award of public
supply contracts is an autonomous concept of Community law.

The activities of funeral undertakers may meet a need in the
general interest. The fact that a regional or local authority is
legally obliged to arrange funerals — and, where necessary, to
bear the costs of those funerals — where they have not been
arranged within a certain period after a death certificate has
been issued constitutes evidence that there is such a need in the
general interest.

The existence of significant competition does not, of itself, allow
the conclusion to be drawn that there is no need in the general
interest, not having an industrial or commercial character. The
national court must assess whether or not there is such a
need, taking account of all the relevant legal and factual
circumstances, such as those prevailing at the time of establish-
ment of the body concerned and the conditions under which it
exercises its activity.

4. A mere review does not satisfy the criterion of management
supervision in the third indent of the second subparagraph of
Article 1(b) of Directive 93/36. That criterion is, however,
satisfied where the public authorities supervise not only the
annual accounts of the body concerned but also its conduct from
the point of view of proper accounting, regularity, economy,
efficiency and expediency and where those public authorities are
authorised to inspect the business premises and facilities of that
body and to report the results of those inspections to a regional
authority which holds, through another company, all the shares
in the body in question.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 27 February 2003

in Case C-389/00: Commission of the European Communi-
ties v Federal Republic of Germany (1)

(Failure to fulfil obligations — Articles 23 and 25 EC —
Charge having an equivalent effect- Export of waste — Basle
Convention — Regulation No 259/93 — Contribution to a
solidarity fund)

(2003/C 101/07)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-389/00, Commission of the European Communities
(Agent: J.C. Schieferer) v Federal Republic of Germany (Agent:
B. Muttelsee-Schön, assisted by H.-J. Koch): Application for a
declaration that, by enacting the Gesetz über die Überwachung
und Kontrolle der grenzüberschreitenden Verbringung von
Abfällen (Abfallverbringungsgesetz) (Act on the supervision
and control of transboundary shipments of waste; ‘the waste
shipment act’) of 30 September 1994, BGBl. 1994 I, p. 2771),
establishing a solidarity fund for the return of waste and
requiring exporters of waste, including those exporting to
other Member States, to contribute to that fund, the Federal
Republic of Germany has failed to fulfil its obligations under
Articles 23 EC and 25 EC,
(Fifth Chamber),
composed of: D.A.O. Edward, acting for the President of the
Chamber, A. La Pergola, P. Jann, S. von Bahr and A. Rosas
(Rapporteur), Judges; A. Tizzano, Advocate General; H.A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 27 February 2003, in which it:

the Court

1. Declares that, by subjecting shipments of waste to other
Member States to a mandatory contribution to the solidarity
fund for the return of waste established by the Gesetz über
die Überwachung und Kontrolle der grenzüberschreitenden
Verbringung von Abfällen (Abfallverbringungsgesetz)
of
30 September 1994, the Federal Republic of Germany has
failed to fulfil its obligations under Articles 23 EC and 25 EC;

( 1) OJ C 372 of 23.12.2000.

2. Orders the Federal Republic of Germany to pay the costs.

(1) OJ C 4 of 6.1.2001.