Judgment of the Court (Second Chamber) of 3 March 2005 in Joined Cases C-21/03 and C-34/03 (reference for a preliminary ruling from the Conseil d'État): Fabricom SA v État belge (Public procurement — Works, supplies and services — Water, energy, transport and telecommunications sectors — Prohibition on participation in a procedure of submission of a tender by a person who has contributed to the development of the works, supplies or services concerned)
Date: 2005-04-30
Institutions: Court of Justice
Subjects: Belgium, administrative transparency, award of contract, energy production, energy transport, interpretation of the law, means of public conveyance, provision of services, public contract, supplies contract, telecommunications, works contract

30.4.2005

EN

Official Journal of the European Union

C 106/5

JUDGMENT OF THE COURT

(Second Chamber)

of 3 March 2005

in Joined Cases C-21/03 and C-34/03 (reference for a preli-
minary ruling from the Conseil d'État): Fabricom SA v
État belge (1)

(Public procurement — Works, supplies and services —
Water, energy, transport and telecommunications sectors —
Prohibition on participation in a procedure of submission of
a tender by a person who has contributed to the development
of the works, supplies or services concerned)

(2005/C 106/08)

(Language of the case: French)

In Joined Cases C-21/03 and C-34/03: reference for a preli-
minary ruling under Article 234 EC from the Conseil d'État
(Belgium), made by decision of 27 December 2002, received at
in the
the Court on 29 and 22 January 2003, respectively,
proceedings pending before that court between Fabricom SA
and État belge — the Court (Second Chamber) composed of
C.W.A. Timmermans, President of the Chamber (Rapporteur),
C. Gulmann, J.-P. Puissochet, N. Colneric and J.N. Cunha Rodri-
gues, Judges; P. Léger, Advocate General; R. Grass, Registrar,
gave a judgment on 3 March 2005, the operative part of which
is as follows:

and

thereof,

1. Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service contracts,
as amended by European Parliament and Council Directive
97/52/EC of 13 October 1997, and, more particularly, Article
3(2) thereof, Council Directive 93/36/EEC of 14 June 1993
coordinating procedures for the award of public supply contracts,
as amended by Directive 97/52, and, more particularly, Article
5(7) thereof, Council Directive 93/37/EEC of 14 June 1993
concerning the coordination of procedures for the award of public
works contracts, as amended by Directive 97/52, and, more parti-
cularly, Article 6(6)
also Council Directive
93/38/EEC of 14 June 1993 coordinating the procurement proce-
dures of entities operating in the water, energy, transport and tele-
communications sectors, as amended by European Parliament and
Council Directive 98/4/EC of 16 February 1998, and, more
particularly, Article 4(2) thereof, preclude a rule such as that laid
down in Article 25 of the Royal Decree of 25 March 1999
amending the Royal Decree of 10 January 1996 on public works,
supply and service contracts in the water, energy, transport and
telecommunications sectors, and Article 32 of the Royal Decree of
25 March 1999 amending the Royal Decree of 8 January 1996
on public works, supply and service contracts and on the award of
public contracts, whereby a person who has been instructed to
carry out research, experiments, studies or development in connec-
tion with a public works, supplies or services contract
is not
permitted to apply to participate in or to submit a tender for those
works, supplies or services and where that person is not given the

opportunity to prove that, in the circumstances of the case, the
experience which he has acquired was not capable of distorting
competition.

2. 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 and, more particularly,
Articles 2(1)(a) and 5 thereof, and Council Directive 92/13/EEC
of 25 February 1992 coordinating the laws, regulations and
administrative provisions relating to the application of Community
rules on the procurement procedures of entities operating in the
water, energy, transport and telecommunications sectors and, more
particularly, Articles 1 and 2 thereof, preclude the contracting
entity from refusing, until the end of the procedure for the exami-
nation of tenders, to allow an undertaking connected with any
person who has been instructed to carry out research, experiments,
studies or development
in connection with works, supplies or
services to participate in the procedure or to submit a tender, even
though, when questioned on that point by the awarding authority,
that undertaking states that it has not thereby obtained an unfair
advantage capable of distorting the normal conditions of competi-
tion.

(1) OJ C 55 of 08.03.2003.
OJ C 70 of 22.03.2003.

JUDGMENT OF THE COURT

(Second Chamber)

of 3 March 2005

in Case C-172/03 Reference for a preliminary ruling from
the Verwaltungsgerichtshof (Austria) Wolfgang Heiser v
Finanzamt Innsbruck (1)

(VAT — Exemption for medical care provided in the exercise
of the profession of medical practitioner — Adjustment of
deductions)

(2005/C 106/09)

(Language of the case: German)

In Case C-172/03: reference for a preliminary ruling under
Article 234 EC from the Verwaltungsgerichtshof
(Austria),
made by decision of 31 March 2003, received at the Court on
14 April 2003, in the proceedings pending before that court
between Wolfgang Heiser and Finanzamt Innsbruck — the
Court: (Second Chamber) composed of C.W.A. Timmermans
the Chamber, C. Gulmann,
(Rapporteur),

President of