CELEX: C2006/086/02
Language: en
Date: 2006-04-08 00:00:00
Title: Judgment of the Court (Third Chamber) of  27 October 2005  in Case C-234/03: Reference for a preliminary ruling from the Audiencia Nacional in Contse SA and Others v Instituto Nacional de Gestión Sanitaria (Ingesa), formerly Instituto Nacional de la Salud (Insalud) (Freedom of establishment — Freedom to provide services — Directive 92/50/EEC — Public service contracts — Principle of non-discrimination — Health services of home respiratory treatments — Admission condition — Evaluation criteria)

8.4.2006   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 86/1
            
         
      JUDGMENT OF THE COURT
   
   (Third Chamber)
   of 27 October 2005
   in Case C-234/03: Reference for a preliminary ruling from the Audiencia Nacional in Contse SA and Others v Instituto Nacional de Gestión Sanitaria (Ingesa), formerly Instituto Nacional de la Salud (Insalud) (1)
   
   (Freedom of establishment - Freedom to provide services - Directive 92/50/EEC - Public service contracts - Principle of non-discrimination - Health services of home respiratory treatments - Admission condition - Evaluation criteria)
   (2006/C 86/02)
   Language of the case: Spanish
   In Case C-234/03: reference for a preliminary ruling under Article 234 EC from the Audiencia Nacional (Spain), made by decision of 16 April 2003, received at the Court on 2 June 2003, in the proceedings between Contse SA, Vivisol Srl, Oxigen Salud SA and Instituto Nacional de Gestión Sanitaria (Ingesa), formerly Instituto Nacional de la Salud (Insalud), interested parties: Air Liquide Medicinal SL, Sociedad Española de Carburos Metálicos SA — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, J. Malenovský, 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 ruled:
   Article 49 EC precludes a contracting authority from providing, in the tendering specifications for a public contract for health services of home respiratory treatments and other assisted breathing techniques, first, for an admission 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 capital of the province where the service is to be supplied and, second, for evaluation criteria which reward, by awarding extra points, the existence at the time the tender is submitted of oxygen production, conditioning and bottling plants situated within 1 000 kilometres of that province or 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, favours the undertaking which was previously providing the service concerned, in so far as those criteria are applied in a discriminatory manner, are not justified by imperative requirements in the general interest, are not suitable for securing the attainment of the objective which they pursue or go beyond what is necessary to attain it, which is a matter for the national court to determine.
   
      (1)  OJ C 184, 02.08.2003.