Order of the Court (Second Chamber) of 16 October 2003 nella causa C-244/02 (Reference for a preliminary ruling from the Korkein hallinto-oikeus): Kauppatalo Hansel Oy v Imatran kaupunki (Article 104(3) — Rules of Procedure — Procurement contracts — Directive 93/36/EEC — Procedures for the award of public supply contracts — Incorrect assessment as regards the criterion for determining the most economically advantageous tender — Procurement procedure discontinued)
Date: 2004-02-21
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, invitation to tender, offer price, supplies contract

C 47/10

EN

Official Journal of the European Union

21.2.2004

JUDGMENT OF THE COURT

(Third Chamber)

of 11 December 2003

in Case C-122/03: Commission of the European Communi-
ties v French Republic (1)

its obligations —
(Failure of a Member State to fulfil
Measures having equivalent effect — Importers and distribu-
tors of medicinal products — Submission of a certified copy
or a document attesting to the holding of a marketing
authorisation)

(2004/C 47/16)

(Language of the case: French)

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

In Case C-122/03, Commission of the European Communities
(Agents: H. Støvlbæk and B. Stromsky) v French Republic
(Agents: G. de Bergues and C. Bergeot-Nunes): Application for
a declaration that, by imposing, pursuant to Article R. 5142-
15 of the Code de la santé publique, on traders importing or
distributing in France medicinal products which are already
covered by a marketing authorisation for the French or
Community market a requirement that they submit, when first
so requested by the monitoring authorities, either a certified
copy issued by the Agence française de securité sanitaire des
produits de santé of the French marketing authorisation or of
the registration of the medicinal product, or a document issued
by that Agency attesting that the imported medicinal product
has obtained a marketing authorisation issued by the European
Community,
its
obligations under Article 28 EC, the Court (Third Chamber),
composed of: C. Gulmann (Rapporteur), acting for the Presi-
dent of the Third Chamber, J.-P. Puissochet and F. Macken,
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,
has given a judgment on 11 December 2003, in which it:

the French Republic has failed to fulfil

1. Declares that by imposing, pursuant to Article R. 5142-15 of
the Code de la santé publique, on traders importing or
distributing in France medicinal products which are already
covered by a marketing authorisation for
the French or
Community market a requirement that they submit, when first
so requested by the monitoring authorities, either a certified
copy issued by the Agence française de securité sanitaire des
produits de santé of the French marketing authorisation or of
the registration of the medicinal product, or a document issued
by that Agency certifying that the imported medicinal product

has obtained a marketing authorisation issued by the European
Community,
its
obligations under Article 28 EC;

the French Republic has

failed to fulfil

2. Orders the French Republic to pay the costs.

(1) OJ C 112 of 10.5.2003.

ORDER OF THE COURT

(Second Chamber)

of 16 October 2003

nella causa C-244/02 (Reference for a preliminary ruling
from the Korkein hallinto-oikeus): Kauppatalo Hansel Oy
v Imatran kaupunki (1)

(Article 104(3) — Rules of Procedure — Procurement
contracts — Directive 93/36/EEC — Procedures for the
award of public supply contracts — Incorrect assessment as
regards the criterion for determining the most economically
advantageous tender — Procurement procedure discon-
tinued)

(2004/C 47/17)

(Language of the case: Finnish)

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

In Case C-244/02: Reference to the Court under Article 234
EC by the Korkein hallinto-oikeus (Finland) for a preliminary
ruling in the proceedings pending before that court between
Kauppatalo Hansel Oy and Imatran kaupunki, on the interpret-
ation 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), as amended by European
Parliament and Council Directive 97/52/EC of 13 October
1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/
EEC concerning the coordination of procedures for the award
of public service contracts, public supply contracts and public
works contracts respectively (OJ 1997 L 328, p. 1), the Court
(Second Chamber), composed of: R. Schintgen, President of
the Chamber, V. Skouris (Rapporteur) and N. Colneric, Judges;
L.A. Geelhoed, Advocate General; R. Grass, Registrar, has made
an order on 16 October 2003, the operative part of which is
as follows:

21.2.2004

EN

Official Journal of the European Union

C 47/11

Council Directive 93/36/EEC of 14 June 1993 coordinating
procedures for the award of public supply contracts, as amended by
Directive 97/52/EC of the European Parliament and the Council of
13 October 1997 amending Directives 92/50/EEC, 93/36/EEC
and 93/37/EEC concerning the coordination of procedures for the
award of public service contracts, public supply contracts and public
works contracts respectively, must be interpreted as meaning that a
contracting authority which has commenced a procedure for the
award of a contract on the basis of the lowest price may discontinue
the procedure, without awarding a contract, when it discovers after
examining and comparing the tenders that, because of errors
committed by itself in its preliminary assessment, the content of the
invitation to tender makes it impossible for it to accept the most
economically advantageous tender, provided that, when it adopts such
a decision, it complies with the fundamental rules of Community law
on public procurement such as the principle of equal treatment.

(1) OJ C 219 of 14.9.2002.

Reference for a preliminary ruling by the Bezirksgericht
Dornbirn by order of that court of 16 December 2002 in
the case of Helmut Horn against Dr Karl Schelling

(Case C-44/03)

(2004/C 47/18)

Reference has been made to the Court of Justice of the
European Communities by order of the Bezirksgericht (District
court) Dornbirn of 16 December 2002, received at the Court
the Court Registry on 6 February 2003, for a preliminary
ruling in the case of Helmut Horn against Dr Karl Schelling on
the following questions:

1. Are the provisions of Article 49 et seq. EC and Article 12
EC to be interpreted as precluding, on the basis of the
report of the three EU wise men, the EU sanctions and
thus as meaning that in the present case one of the
defendants’ fundamental rights guaranteed under EU law
was infringed? Under those sanctions

(a)

official bilateral diplomatic contacts at political level
are no longer to be entertained with an Austrian
government so composed;

(b) Austrian candidates are no longer to be supported in
selection procedures for international organisations;
and

(c) Austrian ambassadors are no longer to be received
at political level (ministerial contacts) but henceforth
only at technical level (contacts with officials) and
that in bilateral international relations there is no
business as usual with Austria?

2. Are Articles 49 and 12 EC to be interpreted as meaning
that they do not apply to measures under Article 7 EC
and/or analogous bilateral foreign policy measures of
individual Member States?

3. Are Articles 49 and 12 EC to be interpreted as meaning
that there are other principles in the imposition of
sanctions under Article 7 EC for the avoidance of
discrimination than for other measures of State action? If
appropriate it would be necessary to clarify what formal
or substantive preconditions must be observed in that
connection.

4. Are the provisions of Article 81 EC to be interpreted as
meaning that the prohibitions laid down therein also
apply to actions of the Member States themselves or only
to undertakings and associations of undertakings? Should
the latter be the case then it must be determined whether
Articles 49 and 12 EC are to be interpreted as meaning
that actions of Member States which fail to observe the
principles laid down in Article 81 EC in any event
infringe the prohibitions on discrimination laid down in
Articles 49 and 12 EC?

5. Are Articles 49 and 12 EC to be interpreted as meaning
that demands for a boycott of the economy or parts of
the economy of a Member State or measures likely to
affect the economy of a Member State in such a way that
competitive disadvantages may arise in that Member State
are in any event unlawful and not permissible? Which
conditions must be satisfied in order that in this respect
no infringements of the abovementioned provisions are
committed and to what extent are individual measures of
individual states in that connection also to be attributed
to other states acting jointly?

6. Are the provisions of the EC Treaty, in particular Article 7
EC, to be interpreted as meaning that a foreign policy in
regard to the imposition of sanctions is no longer
available to the individual EU Member States or, in regard
to the imposition of sanctions against individual EU
Member States, does the possibility of a bilateral foreign
the individual Member States
policy on the part of
subsist?

7. Are the provisions of the EC Treaty to be interpreted as
meaning that the imposition of sanctions without any
formal procedure being pending under Article 7 EC and
without any examination or in the absence of
the
substantive preconditions for sanctions under Article 7
EC, even though those sanctions were published in the
form of a measure of the European Union (EU Council),
constitute an act contrary to Community law or indeed a
non-act which is therefore irrelevant and unlawful as a
sovereign act?