Medisanus d.o.o. v Splošna Bolnišnica Murska Sobota.
Date: 2017-06-08
33


Whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU depends on a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, to that effect, judgment of 6 October 2015, Consorci Sanitari del Maresme, C‑203/14, EU:C:2015:664, paragraph 17 and the case-law cited).
53


In addition, nothing precludes medicinal products derived from human blood or human plasma from coming under the definition of ‘goods’ for the purposes of the provisions of the FEU Treaty on the free movement of goods, given the particularly broad interpretation of that term in the Court’s case-law on, inter alia, medicinal products and blood and blood components (see, to that effect, judgments of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraphs 27 to 32, and of 9 December 2010, Humanplasma, C‑421/09, EU:C:2010:760, paragraphs 27 and 30). It follows that medicinal products derived from human blood or human plasma are ‘goods’ for the purpose of Article 34 TFEU.
55


It should be recalled that a question referred for a preliminary ruling must be examined in the light of all the provisions of the Treaties and of secondary legislation which may be relevant to the issue raised (see, to that effect, judgment of 11 July 1985, Mutsch, 137/84, EU:C:1985:335, paragraph 10). The fact that a national court’s question refers to certain provisions of EU law does not mean therefore that the Court of Justice may not provide the national court with all the guidance on points of interpretation that may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to those points in its question (see, to that effect, judgment of 12 December 1990, SARPP, C‑241/89, EU:C:1990:459, paragraph 8).
62


In the third place, and as the Advocate General has explained in points 37 and 38 of his Opinion, it should be borne in mind that Article 18 TFEU is to apply independently only to situations governed by EU law in regard to which the Treaty lays down no specific prohibition of discrimination (see, inter alia, to that effect, judgments of 21 June 1974, Reyners, 2/74, EU:C:1974:68, paragraphs 15 and 16; of 30 May 1989, Commission v Greece, 305/87, EU:C:1989:218, paragraphs 12 and 13; and of 18 December 2014, Generali-Providencia Biztosító, C‑470/13, EU:C:2014:2469, paragraph 31).
64


In that regard, it must be borne in mind that the Court has consistently held that the prohibition, laid down in Article 34 TFEU, of measures having equivalent effect to quantitative restrictions covers any measure of the Member States that is capable of hindering, directly or indirectly, actually or potentially, imports between Member States (judgment of 19 October 2016, Deutsche Parkinson Vereinigung, C‑148/15, EU:C:2016:776, paragraph 22 and the case-law cited).
65


Read in conjunction with Article 36 TFEU, Article 34 thereof prohibits, inter alia, all discriminatory obstacles to the free movement of goods and thus provides for a specific prohibition of discrimination as against Article 18 TFEU.
71


With regard to the Member States’ powers and responsibilities under Article 168(7) TFEU in respect, inter alia, of blood donations, in the field of health policy, of the management of health services and medical care and of the allocation of the resources assigned to them, it must be noted that in exercising those powers, especially in the context of public procurement, Member States must comply with EU law, in particular the provisions on the free movement of goods (see, to that effect, judgment of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraphs 22 to 25 and the case-law cited).
76


It is clear from the wording of Article 23(8) of Directive 2004/18 that a technical specification may not refer to a specific source unless this is justified by the subject matter of the public contract, and that this is permitted on an exceptional basis only. In any event, any reference to a technical specification, such as a specific source or origin, must be accompanied by the words ‘or equivalent’ (see, to that effect, judgment of 22 September 1988, Commission v Ireland, 45/87, EU:C:1988:435, paragraph 22).
77


With regard to the main proceedings, by not adding the words ‘or equivalent’ after imposing the national origin requirement, the hospital may not only have deterred economic operators with analogous medicinal products from taking part in the tendering procedure, but also have impeded the flow of imports in trade between Member States by reserving the contract for medicinal products derived from Slovenian plasma exclusively to the Institute. In so doing, the hospital has failed to comply with Article 2 of Directive 2004/18, Article 23(2) and (8) thereof and Article 34 TFEU (see, by analogy, judgment of 24 January 1995, Commission v Netherlands, C‑359/93, EU:C:1995:14, paragraph 27).
78


In order to determine whether a clause in the tender specifications for a public contract that imposes a national origin requirement for medicinal products derived from plasma, such as that at issue in the main proceedings, constitutes a restriction that is prohibited under Article 34 TFEU, the Court must examine whether it can be justified on grounds of public health protection, as the Slovenian Government and the Commission in particular have submitted (see, by analogy, judgment of 9 December 2010, Humanplasma, C‑421/09, EU:C:2010:760, paragraph 31).
80


In the present case, since the national origin requirement is discriminatory, as established in paragraph 68 of the present judgment, the Slovenian legislation can be justified only on one of the grounds listed in Article 36 TFEU (see, inter alia, by analogy, judgments of 17 June 1981, Commission v Ireland, 113/80, EU:C:1981:139, paragraphs 7, 8, 10 and 11, and of 30 November 1995, Gebhard, C‑55/94, EU:C:1995:411, paragraph 37).
82


The Court has consistently held that, in order to assess whether a Member State has observed the principle of proportionality in the field of public health, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the FEU Treaty and that it is for the Member States to determine the degree of protection which they wish to afford to public health and the way in which that degree of protection is to be achieved. Since the degree of protection may vary from one Member State to another, Member States must be allowed a measure of discretion (see, inter alia, judgments of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 51; of 19 May 2009, Apothekerkammer des Saarlandes and Others,C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 19; of 21 June 2012, Susisalo and Others, C‑84/11, EU:C:2012:374, paragraph 28; of 5 December 2013, Venturini and Others, C‑159/12 to C‑161/12, EU:C:2013:791, paragraph 59; and of 19 October 2016, Deutsche Parkinson Vereinigung, C‑148/15, EU:C:2016:776, paragraph 30).
83


However, it is apparent also from the Court’s case-law that legislation that is capable of restricting a fundamental freedom guaranteed by the FEU Treaty, such as the free movement of goods, can be properly justified only if it is appropriate for securing the attainment of the legitimate objective pursued and does not go beyond what is necessary in order to attain it (see, to that effect, in the context of human health, judgments of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 48, and of 9 December 2010, Humanplasma, C‑421/09, EU:C:2010:760, paragraph 34).
87


Encouraging voluntary unpaid blood donations is a way of addressing public health concerns such as those referred to in Article 36 TFEU. Therefore, that objective is, in principle, capable of justifying a restriction on the free movement of goods (see, to that effect, judgment of 9 December 2010, Humanplasma, C‑421/09, EU:C:2010:760, paragraph 33).
95


Since Article 36 TFEU is an exception, to be interpreted strictly, to the free movement of goods within the European Union, any national legislation must be necessary to achieve the declared objective and it must not be possible to achieve that objective by prohibitions or restrictions that are less extensive or have less effect on trade within the European Union (see, to that effect, judgment of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 50).
101


Admittedly, interests of an economic nature that aim at maintaining a quality hospital service that is safe and accessible to all may come within the derogation on grounds of public health set out in Article 36 TFEU, to the extent that they contribute to the attainment of a high level of health protection (see, to that effect, judgment of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 60).