# C_2005045EN.01001502.xml

| 19.2.2005 | EN | Official Journal of the European Union | C 45/15 |
| --- | --- | --- | --- |

19.2.2005

EN

Official Journal of the European Union

C 45/15

---

Action brought on 7 December 2004 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-503/04)

(2005/C 45/29)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 7 December 2004 by the Commission of the European Communities, represented by Bernhard Schima, acting as Agent, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

| 1. | Declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 228(1) of the Treaty establishing the European Community inasmuch as it has not taken the necessary measures to comply with the judgment of the European Court of Justice of 10 April 2003 in Joined Cases C-20/01 and C-28/01 Commission v Germany
   (1) regarding the award of a contract for the collection of waste water by the Municipality of Bockhorn and of a contract for waste disposal by the City of Braunschweig; |
| --- | --- |

1.

Declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 228(1) of the Treaty establishing the European Community inasmuch as it has not taken the necessary measures to comply with the judgment of the European Court of Justice of 10 April 2003 in Joined Cases C-20/01 and C-28/01 Commission v Germany
   (1) regarding the award of a contract for the collection of waste water by the Municipality of Bockhorn and of a contract for waste disposal by the City of Braunschweig;

Commission

Germany

1

| 2. | Order the Federal Republic of Germany to pay to the Commission's own resources account of the European Community a daily penalty payment
  of EUR 31 680 for each day of delay in implementing the measures necessary to comply with the abovementioned judgment in respect of the award of a contract for the collection of waste water by the Muncipality of Bockhorn and
  of EUR 126 720 for each day of delay in implementing the measures necessary to comply with the abovementioned judgment in respect of the award of a contract for waste disposal by the City of Braunschweig,
  in each case from the date of delivery of that judgment until the measures are implemented; |
| --- | --- |

2.

Order the Federal Republic of Germany to pay to the Commission's own resources account of the European Community a daily penalty payment

of EUR 31 680 for each day of delay in implementing the measures necessary to comply with the abovementioned judgment in respect of the award of a contract for the collection of waste water by the Muncipality of Bockhorn and

of EUR 126 720 for each day of delay in implementing the measures necessary to comply with the abovementioned judgment in respect of the award of a contract for waste disposal by the City of Braunschweig,

in each case from the date of delivery of that judgment until the measures are implemented;

| 3. | Order the Federal Republic of Germany to pay the costs of the proceedings. |
| --- | --- |

3.

Order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

In its judgment of 10 April 2003 the Court of Justice declared that:

| — | since the Municipality of Bockhorn (Germany) failed to invite tenders for the award of the contract for the collection of its waste water and failed to publish notice of the results of the procedure for the award of the contract in the Supplement to the Official Journal of the European Communities, the Federal Republic of Germany, at the time of the award of that public service contract, failed to fulfil its obligations under Article 8 in conjunction with Article 15(2) and Article 16(1) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts; |
| --- | --- |

—

since the Municipality of Bockhorn (Germany) failed to invite tenders for the award of the contract for the collection of its waste water and failed to publish notice of the results of the procedure for the award of the contract in the Supplement to the Official Journal of the European Communities, the Federal Republic of Germany, at the time of the award of that public service contract, failed to fulfil its obligations under Article 8 in conjunction with Article 15(2) and Article 16(1) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts;

Official Journal of the European Communities

| — | since the City of Braunschweig (Germany) awarded a contract for waste disposal by negotiated procedure without prior publication of a contract notice, although the criteria laid down in Article 11(3) of Directive 92/50 for an award by privately negotiated procedure without a Community-wide invitation to tender had not been met, the Federal Republic of Germany, at the time of the award of that public service contract, failed to fulfil its obligations under Article 8 and Article 11(3)(b) of Directive 92/50. |
| --- | --- |

—

since the City of Braunschweig (Germany) awarded a contract for waste disposal by negotiated procedure without prior publication of a contract notice, although the criteria laid down in Article 11(3) of Directive 92/50 for an award by privately negotiated procedure without a Community-wide invitation to tender had not been met, the Federal Republic of Germany, at the time of the award of that public service contract, failed to fulfil its obligations under Article 8 and Article 11(3)(b) of Directive 92/50.

The Commission takes the view that fulfilment of the obligations of the Federal Republic of Germany which flow from that judgment and from Article 228 EC requires that the contracts concluded in breach of public procurement law be terminated.

The measures notified by the Federal Republic of Germany so far do not, however, appear to be sufficient to bring an end to the infringement of the Treaty established by the Court of Justice.

In the event that the Federal Republic of Germany does not take the measures necessary to bring an end to that infringement of the Treaty before the judgment requested in the present action is given, the Commission requests the imposition of a daily penalty payment which it proposes should be calculated in accordance with the principles observed by it in the past.

---

(1)  [2003] ECR I-3609.

1

---