Case C-478/06: Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Kokkoris D. Tsanas K. EPE and Others v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
Date: 2007-01-27
Institutions: Court of Justice
Subjects: dominant position, export, illicit trade, interpretation of the law, intervention policy, market intervention, pharmaceutical product, restriction on competition, trade regulations, wholesale trade

27.1.2007

EN

Official Journal of the European Union

C 20/9

Reference for a preliminary ruling from the Efetio Athinon
(Greece) lodged on 21 November 2006 — Kokkoris D.
Tsanas K. EPE and Others v GlaxoSmithKline Anonimi
Emporiki Viomikhaniki Etairia Farmakeftikon Proionton

(Case C-477/06)

(2007/C 20/12)

Language of the case: Greek

(a) is the answer affected by the fact that the ultimate
consumer/patient derives limited financial advantage
from the parallel trade and

(b) is account to be taken, and to what extent, of the inter-
insurance bodies in cheaper medicinal

ests of social
products?

2.3 What other criteria and approaches are considered appro-

priate in the present case?

Referring court

Efetio Athinon

Parties to the main proceedings

Appellants: Kokkoris D. Tsanas K. EPE and Others

Respondent: GlaxoSmithKline Anonimi Emporiki Viomikhaniki
Etairia Farmakeftikon Proionton

Questions referred:

1. Where the refusal of an undertaking holding a dominant
position to meet fully the orders sent to it by pharmaceu-
tical wholesalers is due to its intention to limit their export
activity and, thereby, the harm caused to it by parallel trade,
does the refusal constitute per se an abuse within the
meaning of Article 82 EC? Is the answer to that question
affected by the fact that the parallel trade is particularly
the different
the wholesalers because of
profitable for
prices, resulting from State intervention,
in the Member
States of the European Union, that is to say by the fact that
pure conditions of competition do not prevail in the phar-
maceuticals market, but a regime which is governed to a
large extent by State intervention? Is it ultimately correct
for a national court to apply Community competition rules
in the same way to markets which function competitively
and those in which competition is distorted by State inter-
vention?

2.

If the Court holds that limitation of parallel trade, for the
reasons set out above, does not constitute an abusive prac-
tice in every case where it is engaged in by an undertaking
holding a dominant position, how is possible abuse to be
assessed? In particular:

2.1 Do the percentage by which normal domestic consumption
is exceeded and/or the loss suffered by an undertaking
holding a dominant position compared with its total turn-
over and total profits constitute appropriate criteria? If so,
how are the level of that percentage and the level of that
loss determined (the latter as a percentage of turnover and
total profits), above which the conduct in question may be
abusive?

2.2 Is an approach entailing the balancing of interests appro-
priate, and, if so, what are the interests to be compared? In
particular:

Reference for a preliminary ruling from the Efetio Athinon
(Greece) lodged on 21 November 2006 — Kokkoris D.
Tsanas K. EPE and Others v GlaxoSmithKline Anonimi
Emporiki Viomikhaniki Etairia Farmakeftikon Proionton

(Case C-478/06)

(2007/C 20/13)

Language of the case: Greek

Referring court

Efetio Athinon

Parties to the main proceedings

Appellants: Kokkoris D. Tsanas K. EPE and Others

Respondent: GlaxoSmithKline Anonimi Emporiki Viomikhaniki
Etairia Farmakeftikon Proionton

Questions referred:

1. Where the refusal of an undertaking holding a dominant
position to meet fully the orders sent to it by pharmaceu-
tical wholesalers is due to its intention to limit their export
activity and, thereby, the harm caused to it by parallel trade,
does the refusal constitute per se an abuse within the
meaning of Article 82 EC? Is the answer to that question
affected by the fact that the parallel trade is particularly
profitable for
the different
the wholesalers because of
prices, resulting from State intervention,
in the Member
States of the European Union, that is to say by the fact that
pure conditions of competition do not prevail in the phar-
maceuticals market, but a regime which is governed to a
large extent by State intervention? Is it ultimately correct
for a national court to apply Community competition rules
in the same way to markets which function competitively
and those in which competition is distorted by State inter-
vention?

C 20/10

EN

Official Journal of the European Union

27.1.2007

2.

If the Court holds that limitation of parallel trade, for the
reasons set out above, does not constitute an abusive prac-
tice in every case where it is engaged in by an undertaking
holding a dominant position, how is possible abuse to be
assessed? In particular:

2.1 Do the percentage by which normal domestic consumption
is exceeded and/or the loss suffered by an undertaking
holding a dominant position compared with its total turn-
over and total profits constitute appropriate criteria? If so,
how are the level of that percentage and the level of that
loss determined (the latter as a percentage of turnover and
total profits), above which the conduct in question may be
abusive?

2.2 Is an approach entailing the balancing of interests appro-
priate, and, if so, what are the interests to be compared? In
particular:

(a) is the answer affected by the fact that the ultimate
consumer/patient derives limited financial advantage
from the parallel trade and

(b) is account to be taken, and to what extent, of the inter-
insurance bodies in cheaper medicinal

ests of social
products?

2.3 What other criteria and approaches are considered appro-

priate in the present case?

Action brought on 24 November 2006 — Commission of
the European Communities v Federal Republic of Germany

(Case C-480/06)

(2007/C 20/14)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: X. Lewis and B. Schima, Agents)

Defendant: Federal Republic of Germany

Form of order sought

— A declaration that the Federal Republic of Germany has
failed to fulfil its obligations under Article 8 in conjunction
with Titles III to VI of Council Directive 92/50/EEC of 18

June 1992 relating to the coordination of procedures for the
award of public service contracts (1), in that the Landkreise
Rotenburg (Wümme), Harburg, Soltau-Fallingbostel and
Stade concluded a waste disposal services contract with
Stadtreinigung Hamburg directly and did not make that
to a Community-wide open or
service contract subject
restricted tender procedure;

— An order that the Federal Republic of Germany pay the

costs of the proceedings.

Pleas in law and main arguments

On 18 December 1995 four local counties (Landkreise)
in
Lower Saxony concluded a waste disposal services contract with
Stadtreinigung Hamburg (Hamburg city cleaning authority), a
body governed by a public law. That contract was concluded
without carrying out an award procedure and without a Com-
munity-wide call for tenders.

The Landkreise are contracting authorities and the contract at
issue is a service contract for pecuniary interest concluded in
writing which exceeds the relevant threshold for the application
of Directive 92/50/EEC and thus falls within the scope of that
directive.

The fact that Stadtreinigung Hamburg as a body governed by
public law is itself a contracting authority within the meaning
of Directive 92/50/EEC does not alter the fact that the contract
in dispute falls within the scope of that directive: as the Court
of Justice has expressly declared, the directives on procurement
law are always applicable if a contracting authority intends to
conclude a contract for pecuniary interest in writing with a
body which is distinct, in form, from itself and which has the
power to make decisions independently of that authority.

There are no facts apparent which justify a private award of the
contract at issue in the form of a negotiated procedure without
a prior contract notice.

The Commission also does not agree with the view of
the
Federal Government that cooperation between local authorities
as a product of municipal autonomy is not subject to procure-
ment law, regardless of the legal form which it may take. Muni-
cipal autonomy cannot lead to a situation where local authori-
ties are permitted to disregard the provisions on public awards
of contracts. In so far as those local authorities were to conclude
contracts on the provision of services with other bodies, even if
those bodies were also contracting authorities themselves, they
would be subject to procurement law. The German Government
was also not able to prove that the service contract at issue
could only be granted to a specific service provider for technical
reasons.