EN Official Journal of the European Union C 69/26

Action brought on 14 January 2009 — Commission of the European Communities v Federal Republic of Germany

(Case C-17/09)

(2009/C 69/48)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and C. Zadra, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

— declare 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), by reason of the fact that the city of Bonn and the Müllverwertungsanlage Bonn GmbH awarded a public service contract for the disposal of bio-waste and green waste without carrying out an award procedure including Europe-wide tendering;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The subject-matter of the present action is a service contract for pecuniary interest for the disposal of bio-waste and green waste between the City of Bonn and the Müllverwertungsanlage Bonn GmbH (‘MVA GmbH’), on the one hand, and the private waste disposal undertaking EVB Entsorgung und Verwertung Bonn GmbH & Co. KG (‘EVB’) on the other hand. MVA GmbH is a municipal company, 93.46 % of the capital of which is held by Stadtwerke Bonn GmbH — a 100 % subsidiary of the City of Bonn — and 6.54 % of the capital of which is held directly by the City of Bonn. In that contract EVB undertakes, first, to procure, pre-sort and deliver household waste for disposal at the waste treatment plant, Bonn, and, secondly, to dispose of bio-waste and green waste from the urban area of Bonn in their compost plants for a price of DM 6 million per annum.

Although the disposal contract in question is a public service contract within the meaning of Article 1(a) of Directive 92/50/EEC, it was concluded directly with EVB without the carrying-out of a formal award procedure and Europe-wide tendering. The contract also deals with the provision of refuse disposal services for the purposes of category No 16 of Annex I A to that directive and thus significantly exceeds the threshold value for the application of the directive.

Contrary to the opinion of the Federal Government, what matters is not whether the contract covers services other than the composting services, which are provided by the City or MVA GmbH on EVB's behalf. The crucial factor is, rather, that the contract creates legally binding obligations on the part of EVB to the City in respect of the provision of composting services for pecuniary interest. Furthermore, it cannot be maintained that the composting services constitute a completely insignificant ancillary aspect of the contract because those services are one of the central aspects of the concept negotiated by the parties and constitute a significant economic part of the mutually agreed volume of services.

In addition, the Commission cannot agree with the Federal Government's argument that the City of Bonn was entitled, on the basis of Article 11(3)(b) of Directive 92/50/EEC, to award the composting services by negotiated procedure without prior publication of a contract notice. According to the case-law of the Court that provision of the Directive must be interpreted strictly and the burden of proving the existence of the exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances. Since the Federal Government has not produced detailed evidence to prove that EVB had an exclusive right to provide the disputed composting services and what the legal basis for such a right is, it cannot be assumed that there are circumstances justifying the derogation in Article 11(3)(b) of Directive 92/50/EEC.

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