Judgment of the Court (Third Chamber) of  27 October 2005  in Case C-158/03: Commission of the European Communities v Kingdom of Spain (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)
Date: 2005-12-24
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, home care, provision of services

24.12.2005

EN

Official Journal of the European Union

C 330/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

2. Orders the Kingdom of Denmark to pay the costs;

(Grand Chamber)

of 15 November 2005

3. Orders

the Kingdom of Belgium,

the Federal Republic of
Germany, the Italian Republic, the Kingdom of the Netherlands,
the Portuguese Republic and the Kingdom of Sweden to bear their
own costs.

in Case C-392/02: Commission of the European Commu-
nities v Kingdom of Denmark (1)

(1) OJ C 31,8.2.2003.

(Failure of a Member State to fulfil obligations — Commu-
nities' own resources — Customs duties legally owing not
subsequently recovered following an error by the national
customs authorities — Financial liability of Member States)

(2005/C 330/01)

(Language of the case: Danish)

In Case C-392/02, Commission of the European Communities
(Agent: H.-P. Hartvig and G. Wilms) v Kingdom of Denmark,
(Agent: J. Molde), supported by Kingdom of Belgium, (Agent:
A. Snoecx), Federal Republic of Germany (Agent: W.-D. Ples-
sing, assisted by D. Sellner and U. Karpenstein, Rechtsanwälte),
Italian Republic (Agent: I.M. Braguglia, assisted by G. de Bellis,
avvocato dello Stato), Kingdom of the Netherlands (represented
by H.G. Sevenster and J. van Bakel), Portuguese Republic,
(Agents: L. Fernandes, Â. Seiça Neves and J.A. dos Anjos),
Kingdom of Sweden, (Agents: A. Kruse, K. Wistrand and A.
Falk), — action under Article 226 EC for failure to fulfil obliga-
tions, brought on 7 November 2002 — the Court (Grand
Chamber), composed of V. Skouris, President, P. Jann, C.W.A.
Timmermans, A. Rosas and J. Makarczyk, Presidents of Cham-
bers, C. Gulmann, A. La Pergola, J.-P. Puissochet, S. von Bahr
(Rapporteur), P. Kūris, U. Lõhmus, E. Levits and A. Ó Caoimh,
Judges; L.A. Geelhoed, Advocate General; H. von Holstein,
Deputy Registrar, for the Registrar, gave a judgment on 15
November 2005, in which it:

1. Declares that, by failing to make available to the Commission of
the European Communities an amount of DKK 140 409.60 in
own resources, together with default interest thereon calculated as
from 20 December 1999, the Kingdom of Denmark has failed to
in particular,
fulfil
under Articles 2 and 8 of Council Decision 94/728/EC, Euratom
of 31 October 1994 on the system of the European Communities'
own resources;

its obligations under Community law and,

JUDGMENT OF THE COURT

(Third Chamber)

of 27 October 2005

in Case C-158/03: Commission of the European Commu-
nities v Kingdom of Spain (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
(Third Chamber), composed of A. Rosas
— the Court
(Rapporteur), President of
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:

J. Malenovský,

the Chamber,

C 330/2

EN

Official Journal of the European Union

24.12.2005

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 produc-
tion, 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;

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

(1) OJ C 135 of 07.06.2003.

chet (Rapporteur), S. von Bahr, J. Malenovský and U. Lõhmus,
Judges; F. G. Jacobs, Advocate General; Lynn Hewlett, Principal
Administrator,
for the Registrar, gave a judgment on 27
October 2005, the operative part of which is as follows:

1. Commission Decision 2003/102/EC of 14 February 2003
excluding from Community financing certain expenditure incurred
by the Member States under the Guarantee Section of the Euro-
pean Agricultural Guidance and Guarantee Fund (EAGGF)
is
annulled insofar as it imposed on the Hellenic Republic a flat-rate
correction of 25 % for the financial years 1999-2001 (public
storage sector) in the sum of Euro 9 926 005,21.

2. The Commission of the European Communities is ordered to pay

the costs.

(1) OJ C 171 of 19.07.2003

JUDGMENT OF THE COURT

(Third Chamber)

of 27 October 2005

in Case C-175/03: Hellenic Republic v Commission of the
European Communities (1)

(EAGGF — Decision 2003/102/EC — Expenditure excluded
from Community financing — Aid for the preservation of
olive groves in the minor islands of the Aegean Sea — Finan-
cial years 1999-2001)

(2005/C 330/03)

(Language of the case: Greek)

In Case C-175/03 Hellenic Republic (Agents: V. Kontolaimos
and S. Charitaki) v Commission of the European Commu-
nities (Agent: M. Condou-Durande, assisted by N. Korogian-
nakis, avocat) — action for annulment under Article 230 EC,
brought on 10 April 2003 — the Court (Third Chamber),
composed of A. Rosas, President of the Chamber, J.-P. Puisso-

JUDGMENT OF THE COURT

(First Chamber)

of 27 October 2005

in Case C-329/03 Reference for a preliminary ruling from
the Arios Pagos (Greece), Trapeza tis Ellados AE v Banque
Artesia (1)

(Free movement of capital — First Council Directive of 11
May 1960 — Acquisition of bonds dealt in on a stock
exchange — Repatriation of the proceeds of their liquidation)

(2005/C 330/04)

(Language of the case: Greek)

In Case C-329/03: reference for a preliminary ruling under
Article 234 EC from the Arios Pagos (Greece), made by deci-
sion of 31 March 2003, received at the Court on 28 July 2003,
in the proceedings pending before that court between Trapeza
tis Ellados AE and Banque Artesia — the Court (First Chamber),
composed of: P. Jann, President of the Chamber, N. Colneric, K.
Schiemann, E. Juhász and M. Ilešič (Rapporteur), Judges; F.G.
Jacobs, Advocate General, L. Hewlett, Principal Administrator,
for the Registrar, gave a judgment on 27 October 2005, the
operative part of which is as follows: