The Queen v Secretary of State for Home Department, ex parte Evans Medical Ltd and Macfarlan Smith Ltd.
Date: 1995-03-28
20 According to the Court' s case-law, goods taken across a frontier for the purposes of commercial transactions are subject to Article 30 of the Treaty, whatever the nature of those transactions (judgment in Case C-2/90 Commission v Belgium [1992] ECR I-4431, paragraph 26). Since they have those characteristics, the drugs covered by the Convention and marketable under it are subject to Article 30.
27 However, as the judgment in Case C-158/91 Levy [1993] ECR I-4287 explains, the purpose of the first paragraph of Article 234 of the Treaty is to make clear, in accordance with the principles of international law, that application of the Treaty does not affect the commitment of the Member State concerned to respect the rights of non-member States under an earlier agreement and to comply with its corresponding obligations.
28 Consequently, in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations whose performance may still be required by non-member States which are parties to it (judgment in Levy, cited above, paragraph 13).
29 However, in proceedings for a preliminary ruling, it is not for this Court but for the national court to determine which obligations are imposed by an earlier international agreement on the Member State concerned and to ascertain their ambit so as to be able to determine the extent to which they thwart application of Articles 30 and 36 of the Treaty (judgment in Levy, cited above, paragraph 21).
32 As to that point, when an international agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to Community law, the Member State must refrain from adopting such a measure.
37 On the other hand, the need to ensure that a country has reliable supplies for essential medical purposes may, under Article 36 of the Treaty, justify a barrier to intra-Community trade if that objective is one of protecting the health and life of humans.
38 It must, however, be borne in mind that the derogation provided for in Article 36 cannot apply to national rules or practices if the health and life of humans can be as effectively protected by measures less restrictive of intra-Community trade (see, in particular, the judgment in Case 104/75 De Peijper [1976] ECR 613, paragraph 17).
42 According to the judgment of the Court in Case 31/87 Beentjes v Netherlands [1988] ECR 4635, in selecting the most economically advantageous tender contracting authorities may choose the criteria which they intend to apply, but their choice may relate only to criteria designed to identify the most economically advantageous tender.
44 It follows that reliability of supplies is one of the criteria which may be taken into account under Article 25 of the directive in order to determine the most economically advantageous tender for a contract for the supply, to the authorities concerned, of a product such as that in question in the main proceedings.
48 With regard to those arguments the Court recalls that it has held (see, most recently, the judgment in Case C-328/92 Commission v Spain [1994] ECR I-1569, paragraph 15) that Article 6 of the directive, as amended, which authorizes derogations from the rules intended to ensure effectiveness of rights conferred by the Treaty in the public supply contracts sector, must be interpreted strictly.