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26.4.

2003 EN Official Journal of the European Union C 101/3

4. Where it appears that the institution of the place of stay has before that court between Santex SpA and Unità Socio
wrongly refused to provide the benefits in kind referred to in Sanitaria Locale n. 42 di Pavia, interveners: Sca Mölnlycke
Article 31 of Regulation No 1408/71, as amended and SpA, Artsana SpA and Fater SpA, on the interpretation of
updated by Regulation No 2001/83, as amended by Regu- Article 22 of Council Directive 93/36/EEC of 14 June 1993
lation No 3096/95, and the institution of the place of coordinating procedures for the award of public supply
residence, on being advised of that refusal, has declined to contracts (OJ 1993 L 199, p. 1) and Article 6(2) EU, the Court
contribute, as it is obliged to, to facilitating the correct (Sixth Chamber), composed of: J.-P. Puissochet, President of
application of that provision, it is for the latter institution, the Chamber, R. Schintgen and V. Skouris (Rapporteur),
without prejudice to the possible liability of the institution of F. Macken and J.N. Cunha Rodrigues, Judges; S. Alber, Advocate
the place of stay, to reimburse directly to the insured person the General; H.A. Rühl, Principal Administrator, for the Registrar,
cost of the treatment he has had to bear, so as to guarantee him has given a judgment on 27 February 2003, in which it has
a level of funding equivalent to that which he would have ruled:
enjoyed had the provisions of that article been complied with.
Council Directive 89/665/EEC of 21 December 1989 on the
5. In the latter case, Articles 31 and 36 of Regulation No 1408/ coordination of the laws, regulations and administrative provisions
71, as amended and updated by Regulation No 2001/83, as relating to the application of review procedures to the award of public
amended by Regulation No 3096/95, and Articles 31 and 93 supply and public works contracts, as amended by Council Directive
of Regulation No 574/72, as amended and updated by 92/50/EEC of 18 June 1992 relating to the coordination of
Regulation No 2001/83, as amended by Regulation procedures for the award of public service contracts, must be
No 3096/95, preclude national legislation from subjecting interpreted as imposing on the competent national courts, where it is
such reimbursement to the obtaining of ex post facto authoris- established that, by its conduct, a contracting authority has rendered
ation which is granted only in so far as it is shown that the impossible or excessively difficult the exercise of the rights conferred
illness which necessitated the treatment in question manifested by the Community legal order on a national of the Union who has
itself suddenly during the stay, making that treatment immedi- been harmed by a decision of that contracting authority, an obligation
ately necessary. to allow as admissible pleas in law alleging that the notice of
invitation to tender is incompatible with Community law, which are
put forward in support of an application for review of that decision,
( 1) OJ C 335 of 25.11.2000. by availing itself, where appropriate, of the possibility afforded by
national law of disapplying national rules on limitation periods,
under which, when the period prescribed for bringing proceedings for
review of the notice of invitation to tender has expired, it is no longer
possible to plead such incompatibility.

(1 ) OJ C 36 of 4.11.2000.
JUDGMENT OF THE COURT

(Sixth Chamber)
JUDGMENT OF THE COURT
of 27 February 2003
(Fifth Chamber)
in Case C-327/00 (Reference for a preliminary ruling from
the Tribunale amministrativo regionale per la Lombardia): of 27 February 2003
Santex SpA v Unità Socio Sanitaria Locale n. 42 di Pavia (1)
in Case C-373/00 (Reference for a preliminary ruling from
the Vergabekontrollsenat des Landes Wien): Adolf Truley
(Directive 93/36/EEC — Public supply contracts — Directive GmbH v Bestattung Wien GmbH ( 1)
89/665/EEC — Review procedures applicable to public
contracts — Limitation period — Principle of effectiveness) (Directive 93/36/EEC — Public supply contracts — Concept
of ‘contracting authority’ — Public-law body — Funeral
(2003/C 101/05) undertaking)

(2003/C 101/06)
(Language of the case: Italian)
(Language of the case: German)
(Provisional translation; the definitive translation will be published
in the European Court Reports) (Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-327/00: Reference to the Court under Article 234 In Case C-373/00: Reference to the Court under Article 234
EC by the Tribunale amministrativo regionale per la Lombardia EC by the Vergabekontrollsenat des Landes Wien (Austria) for
(Italy) for a preliminary ruling in the proceedings pending a preliminary ruling in the proceedings pending before that
C 101/4 EN Official Journal of the European Union 26.4.2003

court between Adolf Truley GmbH and Bestattung Wien JUDGMENT OF THE COURT
GmbH, on the interpretation of Article 1(b) of Council
Directive 93/36/EEC of 14 June 1993 coordinating procedures
for the award of public supply contracts (OJ 1993 L 199, (Fifth Chamber)
p. 1), the Court (Fifth Chamber), composed of: M. Wathelet,
President of the Chamber, C.W.A. Timmermans (Rapporteur),
P. Jann, S. von Bahr and A. Rosas, Judges; S. Alber, Advocate of 27 February 2003
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 27 February 2003, in which it has
in Case C-389/00: Commission of the European Communi-
ruled:
ties v Federal Republic of Germany (1)

(Failure to fulfil obligations — Articles 23 and 25 EC —


Charge having an equivalent effect- Export of waste — Basle
1. The term ‘needs in the general interest’ in the second subpara- Convention — Regulation No 259/93 — Contribution to a
graph of Article 1(b) of Council Directive 93/36/EEC of solidarity fund)
14 June 1993 coordinating procedures for the award of public
supply contracts is an autonomous concept of Community law.
(2003/C 101/07)

2. The activities of funeral undertakers may meet a need in the (Language of the case: German)
general interest. The fact that a regional or local authority is
legally obliged to arrange funerals — and, where necessary, to
bear the costs of those funerals — where they have not been (Provisional translation; the definitive translation will be published
arranged within a certain period after a death certificate has in the European Court Reports)
been issued constitutes evidence that there is such a need in the
general interest.

In Case C-389/00, Commission of the European Communities


(Agent: J.C. Schieferer) v Federal Republic of Germany (Agent:
3. The existence of significant competition does not, of itself, allow B. Muttelsee-Schön, assisted by H.-J. Koch): Application for a
the conclusion to be drawn that there is no need in the general declaration that, by enacting the Gesetz über die Überwachung
interest, not having an industrial or commercial character. The und Kontrolle der grenzüberschreitenden Verbringung von
national court must assess whether or not there is such a Abfällen (Abfallverbringungsgesetz) (Act on the supervision
need, taking account of all the relevant legal and factual and control of transboundary shipments of waste; ‘the waste
circumstances, such as those prevailing at the time of establish- shipment act’) of 30 September 1994, BGBl. 1994 I, p. 2771),
ment of the body concerned and the conditions under which it establishing a solidarity fund for the return of waste and
exercises its activity. requiring exporters of waste, including those exporting to
other Member States, to contribute to that fund, the Federal
Republic of Germany has failed to fulfil its obligations under
Articles 23 EC and 25 EC, the Court (Fifth Chamber),
4. A mere review does not satisfy the criterion of management composed of: D.A.O. Edward, acting for the President of the
supervision in the third indent of the second subparagraph of Chamber, A. La Pergola, P. Jann, S. von Bahr and A. Rosas
Article 1(b) of Directive 93/36. That criterion is, however, (Rapporteur), Judges; A. Tizzano, Advocate General; H.A. Rühl,
satisfied where the public authorities supervise not only the Principal Administrator, for the Registrar, has given a judgment
annual accounts of the body concerned but also its conduct from on 27 February 2003, in which it:
the point of view of proper accounting, regularity, economy,
efficiency and expediency and where those public authorities are
authorised to inspect the business premises and facilities of that 1. Declares that, by subjecting shipments of waste to other
body and to report the results of those inspections to a regional Member States to a mandatory contribution to the solidarity
authority which holds, through another company, all the shares fund for the return of waste established by the Gesetz über
in the body in question. die Überwachung und Kontrolle der grenzüberschreitenden
Verbringung von Abfällen (Abfallverbringungsgesetz) of
30 September 1994, the Federal Republic of Germany has
failed to fulfil its obligations under Articles 23 EC and 25 EC;

( 1) OJ C 372 of 23.12.2000. 2. Orders the Federal Republic of Germany to pay the costs.

(1 ) OJ C 4 of 6.1.2001.