CELEX: C2004/047/17
Language: en
Date: 2004-02-21 00:00:00
Title: 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)

C 47/10                  EN                          Official Journal of the European Union                                             21.2.2004
                  JUDGMENT OF THE COURT                                            has obtained a marketing authorisation issued by the European
                                                                                   Community, the French Republic has failed to fulfil its
                                                                                   obligations under Article 28 EC;
                          (Third Chamber)
                                                                             2.    Orders the French Republic to pay the costs.
                       of 11 December 2003
                                                                             (1) OJ C 112 of 10.5.2003.
in Case C-122/03: Commission of the European Communi-
                     ties v French Republic (1)
(Failure of a Member State to fulfil its obligations —
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                                            ORDER OF THE COURT
                            authorisation)
                                                                                                     (Second Chamber)
                           (2004/C 47/16)
                                                                                                    of 16 October 2003
                     (Language of the case: French)
                                                                             nella causa C-244/02 (Reference for a preliminary ruling
                                                                             from the Korkein hallinto-oikeus): Kauppatalo Hansel Oy
(Provisional translation; the definitive translation will be published                             v Imatran kaupunki (1)
                    in the European Court Reports)
                                                                             (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
In Case C-122/03, Commission of the European Communities
                                                                             advantageous tender — Procurement procedure discon-
(Agents: H. Støvlbæk and B. Stromsky) v French Republic
                                                                                                            tinued)
(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                                           (2004/C 47/17)
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                                     (Language of the case: Finnish)
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                (Provisional translation; the definitive translation will be published
the registration of the medicinal product, or a document issued                                 in the European Court Reports)
by that Agency attesting that the imported medicinal product
has obtained a marketing authorisation issued by the European
Community, the French Republic has failed to fulfil its
obligations under Article 28 EC, the Court (Third Chamber),                  In Case C-244/02: Reference to the Court under Article 234
composed of: C. Gulmann (Rapporteur), acting for the Presi-                  EC by the Korkein hallinto-oikeus (Finland) for a preliminary
dent of the Third Chamber, J.-P. Puissochet and F. Macken,                   ruling in the proceedings pending before that court between
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,                Kauppatalo Hansel Oy and Imatran kaupunki, on the interpret-
has given a judgment on 11 December 2003, in which it:                       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
1.    Declares that by imposing, pursuant to Article R. 5142-15 of           Parliament and Council Directive 97/52/EC of 13 October
      the Code de la santé publique, on traders importing or                 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/
      distributing in France medicinal products which are already            EEC concerning the coordination of procedures for the award
      covered by a marketing authorisation for the French or                 of public service contracts, public supply contracts and public
      Community market a requirement that they submit, when first            works contracts respectively (OJ 1997 L 328, p. 1), the Court
      so requested by the monitoring authorities, either a certified         (Second Chamber), composed of: R. Schintgen, President of
      copy issued by the Agence française de securité sanitaire des          the Chamber, V. Skouris (Rapporteur) and N. Colneric, Judges;
      produits de santé of the French marketing authorisation or of          L.A. Geelhoed, Advocate General; R. Grass, Registrar, has made
      the registration of the medicinal product, or a document issued        an order on 16 October 2003, the operative part of which is
      by that Agency certifying that the imported medicinal product          as follows:
 ---pagebreak--- 21.2.2004                EN                         Official Journal of the European Union                                          C 47/11
Council Directive 93/36/EEC of 14 June 1993 coordinating                    2.   Are Articles 49 and 12 EC to be interpreted as meaning
procedures for the award of public supply contracts, as amended by               that they do not apply to measures under Article 7 EC
Directive 97/52/EC of the European Parliament and the Council of                 and/or analogous bilateral foreign policy measures of
13 October 1997 amending Directives 92/50/EEC, 93/36/EEC                         individual Member States?
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               3.   Are Articles 49 and 12 EC to be interpreted as meaning
award of a contract on the basis of the lowest price may discontinue             that there are other principles in the imposition of
the procedure, without awarding a contract, when it discovers after              sanctions under Article 7 EC for the avoidance of
examining and comparing the tenders that, because of errors                      discrimination than for other measures of State action? If
committed by itself in its preliminary assessment, the content of the            appropriate it would be necessary to clarify what formal
invitation to tender makes it impossible for it to accept the most               or substantive preconditions must be observed in that
economically advantageous tender, provided that, when it adopts such             connection.
a decision, it complies with the fundamental rules of Community law
on public procurement such as the principle of equal treatment.
                                                                            4.   Are the provisions of Article 81 EC to be interpreted as
(1) OJ C 219 of 14.9.2002.                                                       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
Reference for a preliminary ruling by the Bezirksgericht                         Articles 49 and 12 EC?
Dornbirn by order of that court of 16 December 2002 in
     the case of Helmut Horn against Dr Karl Schelling
                                                                            5.   Are Articles 49 and 12 EC to be interpreted as meaning
                           (Case C-44/03)                                        that demands for a boycott of the economy or parts of
                                                                                 the economy of a Member State or measures likely to
                           (2004/C 47/18)                                        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
Reference has been made to the Court of Justice of the                           no infringements of the abovementioned provisions are
European Communities by order of the Bezirksgericht (District                    committed and to what extent are individual measures of
court) Dornbirn of 16 December 2002, received at the Court                       individual states in that connection also to be attributed
the Court Registry on 6 February 2003, for a preliminary                         to other states acting jointly?
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            6.   Are the provisions of the EC Treaty, in particular Article 7
      EC to be interpreted as precluding, on the basis of the                    EC, to be interpreted as meaning that a foreign policy in
      report of the three EU wise men, the EU sanctions and                      regard to the imposition of sanctions is no longer
      thus as meaning that in the present case one of the                        available to the individual EU Member States or, in regard
      defendants’ fundamental rights guaranteed under EU law                     to the imposition of sanctions against individual EU
      was infringed? Under those sanctions                                       Member States, does the possibility of a bilateral foreign
                                                                                 policy on the part of the individual Member States
                                                                                 subsist?
      (a)   official bilateral diplomatic contacts at political level
            are no longer to be entertained with an Austrian
            government so composed;
                                                                            7.   Are the provisions of the EC Treaty to be interpreted as
      (b) Austrian candidates are no longer to be supported in                   meaning that the imposition of sanctions without any
            selection procedures for international organisations;                formal procedure being pending under Article 7 EC and
            and                                                                  without any examination or in the absence of the
                                                                                 substantive preconditions for sanctions under Article 7
      (c)   Austrian ambassadors are no longer to be received                    EC, even though those sanctions were published in the
            at political level (ministerial contacts) but henceforth             form of a measure of the European Union (EU Council),
            only at technical level (contacts with officials) and                constitute an act contrary to Community law or indeed a
            that in bilateral international relations there is no                non-act which is therefore irrelevant and unlawful as a
            business as usual with Austria?                                      sovereign act?