Case C‑410/14

Dr. Falk Pharma GmbH

v

DAK-Gesundheit

(Request for a preliminary ruling from the

Oberlandesgericht Düsseldorf)

‛Reference for a preliminary ruling — Public contracts — Directive 2004/18/EC — Article 1(2)(a) — Concept of ‘public contract’ — Scheme for acquiring goods consisting of the authorisation as a supplier of any economic operator who meets the predetermined criteria — Supply of medicinal products that are refundable under a general social security scheme — Contracts concluded between a statutory health insurance fund and all the suppliers of medicinal products based on a given active ingredient who consent to a rebate on the sale price at a predetermined rate — Legislation providing, in principle, for the substitution of a refundable medicinal product marketed by an operator not having concluded such a contract by a medicinal product of the same type marketed by an operator having concluded such a contract’

Summary — Judgment of the Court (Fifth Chamber), 2 June 2016

1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Public procurement — Concept — Scheme for acquiring goods consisting of the authorisation as a supplier of any economic operator who meets the predetermined criteria — Not included

   (European Parliament and Council Directive 2004/18, Art. 1(2)(a))

2. Freedom to provide services — Public procurement — Award of contracts not subject or partially subject to the directives on public procurement — Obligation for the contracting authority to comply with the rules and principles of the Treaty — Obligation of transparency — Obligation to ensure adequate publicity — Scope

   (Arts 18 TFEU, 49 TFEU, 53 TFEU and 56 TFEU)

1.  Article 1(2)(a) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that a contract scheme through which a public entity intends to acquire goods on the market by contracting throughout the period of validity of that scheme with any economic operator who undertakes to provide the goods concerned in accordance with predetermined conditions, without choosing between the interested operators, and allows them to accede to that scheme throughout its validity, does not constitute a public contract within the meaning of that directive.

   Where a public entity seeks to conclude supply contracts with all the economic operators wishing to supply the goods concerned in accordance with the conditions specified by that entity, the fact that the contracting authority does not designate an economic operator to whom contractual exclusivity is to be awarded means that there is no need to control, through the detailed rules of Directive 2004/18, the action of that contracting authority so as to prevent it from awarding a contract in favour of national operators. It is therefore apparent that the choice of a tender and, thus, of a successful tenderer, is intrinsically linked to the regulation of public contracts by that directive and, consequently, to the concept of ‘public contract’ within the meaning of Article 1(2)(a) of that directive.

   (see paras 37, 38, 42, operative part 1)

2.  In so far as the subject matter of an authorisation procedure to a contract scheme through which a public entity intends to acquire goods on the market by contracting throughout the period of validity of that scheme with any economic operator who undertakes to provide the goods concerned in accordance with predetermined conditions is of certain cross-border interest, that procedure must be conceived and organised in accordance with the fundamental rules of the FEU Treaty, in particular, the principles of non-discrimination and equal treatment between economic operators and the consequent obligation of transparency.

   In that regard, while Member States have, in such a situation, some latitude for the purpose of adopting measures intended to ensure observance of the principles of equal treatment and the obligation of transparency, that obligation implies publicity which allows potentially interested economic operators to apprise themselves properly of the conduct and the essential characteristics of such an authorisation procedure. It is for the referring court to assess whether the authorisation procedure at issue in the main proceedings satisfies those requirements.

   (see paras 44-47, operative part 2)