22.1.2018

Official Journal of the European Union

C 22/22

(Case C-606/17)

(2018/C 022/33)

Language of the case: Italian

Referring court

Parties to the main proceedings

Applicant: IBA Molecular Italy Srl

Defendants: Azienda ULSS n. 3, Regione Veneto, Ministero della Salute, Ospedale dell’Angelo di Mestre

Questions referred

1.Do the EU rules on the award of public works contracts, public service contracts and public supply contracts, and in particular Articles 1 and 2 of Directive 2004/18/EC, include within their scope complex operations whereby a public contracting authority means to award directly to a given economic operator specific-purpose funding, the sole purpose of which is the manufacture of products intended to be supplied free of charge, without any subsequent tendering procedure, to various authorities which are not required to make any payment to the supplier; and, consequently, do the abovementioned rules of EU law preclude national rules which permit the direct award of specific-purpose funding for the manufacture of products intended to be supplied free of charge, without any subsequent tendering procedure, to various authorities which are not required to make any payment to the supplier?

2.Do the EU rules on the award of public works contracts, public service contracts and public supply contracts, and in particular Articles 1 and 2 of Directive 2004/18/EC and Articles 49, 56 and 105 et seq. of the EU Treaty, preclude national rules which treat private ‘classified’ hospitals as the equivalent of public hospitals, by bringing them within the system of national public healthcare planning, governed by special agreements that are distinct from ordinary accreditation relationships with other private parties that participate in the system of provision of healthcare services, in the absence of the requirements for recognition as a body governed by public law and the requirements for direct awards in accordance with the ‘in-house provision’ model, and thereby take them outside the scope of national and EU rules on public contracts, including in cases where such classified hospitals are entrusted with the manufacture and supply, free of charge, to public healthcare establishments of specific products which are necessary for the provision of healthcare services and where, at the same time, they receive specific-purpose public funding for the purpose of providing such supplies?

Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

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