# C_2007020EN.01001001.xml

| 27.1.2007 | EN | Official Journal of the European Union | C 20/10 |
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27.1.2007

EN

Official Journal of the European Union

C 20/10

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Action brought on 24 November 2006 — Commission of the European Communities v Federal Republic of Germany

(Case C-480/06)

(2007/C 20/14)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: X. Lewis and B. Schima, Agents)

Applicant:

Defendant: Federal Republic of Germany

Defendant:

Form of order sought

| — | A declaration that the Federal Republic of Germany has failed to fulfil its obligations under Article 8 in conjunction with Titles III to VI of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (1), in that the Landkreise Rotenburg (Wümme), Harburg, Soltau-Fallingbostel and Stade concluded a waste disposal services contract with Stadtreinigung Hamburg directly and did not make that service contract subject to a Community-wide open or restricted tender procedure; |
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A declaration that the Federal Republic of Germany has failed to fulfil its obligations under Article 8 in conjunction with Titles III to VI of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (1), in that the Landkreise Rotenburg (Wümme), Harburg, Soltau-Fallingbostel and Stade concluded a waste disposal services contract with Stadtreinigung Hamburg directly and did not make that service contract subject to a Community-wide open or restricted tender procedure;

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| — | An order that the Federal Republic of Germany pay the costs of the proceedings. |
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An order that the Federal Republic of Germany pay the costs of the proceedings.

Pleas in law and main arguments

On 18 December 1995 four local counties (Landkreise) in Lower Saxony concluded a waste disposal services contract with Stadtreinigung Hamburg (Hamburg city cleaning authority), a body governed by a public law. That contract was concluded without carrying out an award procedure and without a Community-wide call for tenders.

The Landkreise are contracting authorities and the contract at issue is a service contract for pecuniary interest concluded in writing which exceeds the relevant threshold for the application of Directive 92/50/EEC and thus falls within the scope of that directive.

The fact that Stadtreinigung Hamburg as a body governed by public law is itself a contracting authority within the meaning of Directive 92/50/EEC does not alter the fact that the contract in dispute falls within the scope of that directive: as the Court of Justice has expressly declared, the directives on procurement law are always applicable if a contracting authority intends to conclude a contract for pecuniary interest in writing with a body which is distinct, in form, from itself and which has the power to make decisions independently of that authority.

There are no facts apparent which justify a private award of the contract at issue in the form of a negotiated procedure without a prior contract notice.

The Commission also does not agree with the view of the Federal Government that cooperation between local authorities as a product of municipal autonomy is not subject to procurement law, regardless of the legal form which it may take. Municipal autonomy cannot lead to a situation where local authorities are permitted to disregard the provisions on public awards of contracts. In so far as those local authorities were to conclude contracts on the provision of services with other bodies, even if those bodies were also contracting authorities themselves, they would be subject to procurement law. The German Government was also not able to prove that the service contract at issue could only be granted to a specific service provider for technical reasons.

For those reasons the Commission comes to the conclusion that the Federal Republic of Germany infringed Directive 92/50/EEC by directly concluding a waste disposal services contract without carrying out an award procedure and without a Community-wide call for tenders.

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(1)  OJ 1992 L 209, p. 1.

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