Judgment;Summary — ECLI:EU:C:2020:436
Date: 2020-06-04
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-429/19 — 1 
Case C-429/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
5 June 2019 
Referring court: 
Oberlandesgericht Koblenz (Germany) 
Date of the decision to refer: 
14 May 2019 
Applicant and appellant: 
Remondis GmbH 
Defendant and respondent: 
Abfallzweckverband Rhein-Mosel-Eifel 
  
Subject-matter of the main proceedings 
Public contracts — Cooperation between contracting authorities in waste 
disposal — Question of which requirements must be satisfied by such cooperation 
in order to fall outside the scope of European procurement law 
Subject-matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
Is Article 12(4)(a) of Directive 2014/24/EU of the European Parliament and of the 
Council of 26 February 2014 on public procurement and repealing Directive 
2004/18/EC to be interpreted as meaning that cooperation does indeed exist if a 
contracting authority responsible for waste disposal within its territory performs a 
disposal task — which is incumbent on it under national law and for the 
performance of which several operations are required — not entirely by itself, but 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-429/19 
 
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rather commissions another contracting authority that is independent of it and is 
likewise responsible for waste disposal within its territory to carry out one of the 
necessary operations in return for consideration? 
Provisions of EU law cited 
Directive 2014/24/EU of the European Parliament and of the Council of 
26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 
2014 L 94, p. 65), Article 12(4)(a) and (c), recital 33  
Provisions of national law cited 
Gesetz gegen Wettbewerbsbeschränkungen (Law prohibiting restraints of 
competition, ‘the GWB’), Paragraph 108(6) and point 2 of Paragraph 135(1) 
Rheinland-pfälzisches Landesgesetz über die kommunale Zusammenarbeit 
(Rhineland-Palatinate State Law on municipal cooperation, ‘the KomZG’) 
Brief summary of the facts and procedure 
1 Remondis GmbH is a private company that provides waste treatment services. 
Abfallzweckverband Rhein-Mosel-Eifel (Rhine-Mosel-Eifel special-purpose 
association for waste) is a contracting authority within the meaning of points 1 
and 4 of Article 2(1) of Directive 2014/24. It was established by the administrative 
districts of Mayen-Koblenz and Cochem-Zell and the city of Koblenz — which 
are responsible under national law for the disposal of the waste accumulated 
within their territory — for the purpose of performing that task. 
2 Approximately 50 000 Mg of mixed municipal waste, designated as residual waste 
and originating primarily from households, falls within the area of responsibility 
of the special-purpose association each year. It consists of waste that ideally 
contains no or only very little recyclable material. One means of disposal 
permitted under national law is the use of landfills, but this must always be 
preceded by a costly pretreatment process in a mechanical biological treatment 
(MBT) plant. The purpose of this pretreatment is to separate valuable substances 
and waste with a high calorific content from the rest of the waste, remove harmful 
substances to the greatest extent possible and significantly reduce the biological 
activity of organic waste. 
3 The special-purpose association does not have its own MBT plant. Around 80% of 
the residual waste accumulated within the territory of the special-purpose 
association is disposed of by private companies under contract with the special-
purpose association. For the remaining 20%, the special-purpose association 
entered into an agreement with the administrative district of Neuwied, which is 
also a contracting authority within the meaning of point 1 of Article 2(1) of 
REMONDIS 
 
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Directive 2014/14 and responsible for the disposal of the waste accumulated 
within its territory, which agreement allows the special-purpose association to 
dispose of that remaining 20% in the MBT plant of the administrative district of 
Neuwied. The agreement governs, inter alia, the estimated quantity of waste 
delivered (approximately 10 000 Mg per year), the agreed remuneration for the 
treatment of the waste (EUR 100 per Mg), the term of the agreement and the 
possibility of extending it, matters pertaining to liability, and the duty of loyal 
cooperation. In the event that treatment of the residual waste in its BMT plant is 
not possible owing to temporary operational disruptions, the administrative district 
of Neuwied also undertakes to enter into agreements with operators of other plants 
so that they can temporarily assume the task of treating the residual waste in such 
a case. The administrative district of Neuwied discharged this obligation, but has 
never had to make use of the capacity of other plants. 
4 Furthermore, the agreement contains a provision, in Clause 2(3), pursuant to 
which the special-purpose association agrees to take possession of certain 
quantities of extractive waste, of up to 3 000 Mg per year, that is accumulated 
within the territory of the administrative district of Neuwied. The quantities to be 
taken into the possession of the special-purpose association are to be determined 
by its capacity and agreed between the parties, taking account of their mutual 
interests. 
5 The partners to the special-purpose agreement are agreed that Clause 2(3) 
constitutes a declaration of intent, which, owing to the lack of current real needs 
on the part of the administrative district of Neuwied on the one hand and the lack 
of capacity problems on the part of the special-purpose association on the other, 
will probably never materialise and, moreover, probably never should materialise. 
The authorised representative of the special-purpose association also declared it to 
be ‘expressly devoid of purpose’. 
6 In addition to the waste from the territory of its own district and the waste 
delivered on the basis of the agreement with the special-purpose association, 
approximately 30 000 Mg per year of residual waste from two other 
administrative districts are also pretreated in the MBT plant of the administrative 
district of Neuwied. However, the pretreatment of this waste is based not on an 
agreement such as the one entered into with the special-purpose association, but 
rather on inter-municipal cooperation between the participating administrative 
districts pursuant to the KomZG. The rights and obligations arising from this 
cooperation are much more far-reaching that those arising from the 
abovementioned agreement between the special-purpose association and the 
administrative district of Neuwied. Furthermore, a small quantity of waste 
delivered by private individuals is also pretreated in the MBT plant of the 
administrative district of Neuwied. 
7 Remondis was aware that the special-purpose association required further capacity 
in order to dispose of waste. In response to an enquiry of 26 October 2018, the 
special-purpose association informed the authorised representative of Remondis, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-429/19 
 
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by letter of 31 October 2018, of the agreement entered into with the administrative 
district of Neuwied. Remondis regards this as an impermissible direct award and 
submitted an application for review to the Vergabekammer Rheinland-Pfalz 
(Rhineland-Palatinate Public Procurement Board, Germany) on 3 December 2018. 
8 By decision of 6 March 2019, the Public Procurement Board refused the 
application for review as inadmissible, because cooperation between two 
contracting authorities which fell within the scope of Paragraph 108(6) GWB 
(which corresponds to Article 12(4) of Directive 2014/24) existed, meaning that 
there was no recourse to the review procedure under national law. Regarding the 
question of whether ‘cooperation’ between the parties exists, the Public 
Procurement Board stated that it did exist in the present case, since more than a 
‘service for consideration’ was involved. The applicant lodged an immediate 
appeal against this decision with the referring court. 
Principal arguments of the parties in the main proceedings 
9 Remondis takes the view that there was no cooperation based on a cooperative 
concept. Rather, there was a ‘service for consideration’ situation and therefore a 
contract subject to the compulsory tender procedure, the award of which without 
prior publication of a contract notice in the Official Journal of the European Union 
was ineffective pursuant to point 2 of Paragraph 135(1) GWB. 
10 The special-purpose association considers the decision to be correct. 
Brief summary of the basis for the reference 
11 The referring court takes the view that the agreement contains all the elements of a 
public contract: a contracting authority seeks to have a significant part of a public 
service task incumbent upon it, which at the same time includes a service that is 
customary on the market, performed not by itself, but by a different legal person 
that is independent of it, undertakes to provide the service and receives 
remuneration as consideration. The assumption of a contract within the meaning 
of procurement law is not precluded by the fact that the agreement is of a public 
law nature and the party performing the service is itself a contracting authority. It 
is also immaterial whether the consideration provided by the contracting entity 
covers costs or even generates a profit (see judgment of the Court of Justice of 
19 December 2012, Ordine degli Ingegneri della Provincia di Lecce and Others, 
C-159/11, EU:C:2012:817). 
12 However, this public contract would not be subject to European and national 
procurement law if the conditions under Article 12(4) of Directive 2014/24 and 
Paragraph 108(6) GWB, respectively, were fulfilled. The key question is whether 
it is sufficient for cooperation within the meaning of Article 12(4) of the directive 
if a contracting authority performs part of a mandatory task incumbent on it itself 
REMONDIS 
 
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and has part of it performed by another contracting authority that is independent 
of it. 
13 In this connection, the referring court takes the view that it is immaterial that a 
large quantity of residual waste that originates from other territorial authorities is 
also pretreated in the MBT plant of the administrative district of Neuwied. This 
does not involve activities ‘on the open market’ within the meaning of 
Article 12(4)(c) of Directive 2014/24, because they are performed within the 
framework of inter-municipal cooperation, which falls outside the scope of 
European and national procurement law. As is the case with the small quantities 
totalling approximately 500 Mg per year that are delivered by various other 
parties, those activities therefore do not preclude the assumption that the 
conditions under Article 12(4)(c) of Directive 2014/24/EU are fulfilled, as regards 
the waste referred to in this paragraph. 
14 The issue, however, is how the agreement between the special-purpose association 
and the administrative district of Neuwied is to be assessed. The referring court 
takes the view that the agreement in question falls outside the scope of European 
procurement law if it ‘establishes or implements a cooperation between the 
participating contracting authorities with the aim of ensuring that public services 
they have to perform are provided with a view to achieving objectives they have 
in common’ (Article 12(4)(a) of Directive 2014/24). Precisely what this means 
cannot be gathered from either the wording of the provision or the existing case-
law of the Court of Justice and is a matter of debate in Germany. 
15 The referring court takes the view that, from the outset, the (alleged) assumption 
of 3 000 Mg of extractive waste per year by the special-purpose association 
existed only on paper and was intended to conceal the lack of a cooperative 
concept. This aspect of the agreement cannot therefore be used as a basis for the 
assumption of a cooperation. 
16 Thus, the core content of the special-purpose agreement is confined to the 
obligation of the administrative district of Neuwied (= contractor) to pretreat, for 
consideration, the residual waste delivered by the special-purpose association (= 
contracting entity) in accordance with the national statutory requirements in order 
thus to create the conditions for the landfilling sought by the special-purpose 
association. The parties involved are pursuing different interests in this respect, 
albeit under the umbrella of the general interest in disposing of waste in the proper 
manner. The special-purpose association has to perform a task assigned to it by 
law; it requires external assistance to do so, because it does not have its own MBT 
plant. The administrative district of Neuwied provides this assistance because it 
hopes to achieve an overall more cost-effective utilisation of its plant from taking 
on the pretreatment in return for reimbursement of the costs. 
17 However, the referring court expresses its concern that this does not necessarily 
mean that the conditions of Article 12(4)(a) of Directive 2014/24 are not fulfilled, 
because recital 33 of that directive must also be considered in that connection, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-429/19 
 
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pursuant to which contracting authorities are entitled to ‘provide jointly their 
public services by way of cooperation without being obliged to use any particular 
legal form’. This requires that ‘the cooperation [...] be based on a cooperative 
concept’, but this ‘does not require all participating authorities to assume the 
performance of main contractual obligations, as long as there are commitments to 
contribute towards the cooperative performance of the public service in question’. 
18 However, it is not clear what form that cooperation must take and whether merely 
making a financial contribution restricted to the reimbursement of the costs is 
sufficient. 
19 The referring court takes the view that an agreement that is confined to the 
outsourcing, for consideration, of part of a task incumbent on one of the parties 
involved is a ‘normal’ public contract that is not covered by the exclusion under 
Article 12(4) of Directive 2014/24, irrespective of whether — as is the case 
here — the parties involved have identical tasks within their respective territories. 
It would therefore interpret the term ‘cooperation’ used in that provision to mean 
that more is needed for a cooperative concept, in particular a contribution from 
each party involved which consists of more than the fulfilment of an obligation 
incumbent on it in any event and which also goes beyond a purely financial 
‘contribution’. Put differently: cooperation requires that each party involved 
makes a contribution which, without the cooperation agreement, would have to be 
provided not by it, but rather by another party involved. 
20 The referring court is therefore inclined to allow the immediate appeal of 
Remondis, but considers that an interpretation of the term ‘cooperation’ in 
Article 12(4)(a) of Directive 2014/24 by the Court of Justice is required in order to 
do so.