EN Official Journal of the European Union C 51/33

Action brought on 30 November 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-536/07)

(2008/C 51/56)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: D. Kukovec and R. Sauer, Agents)

Defendant: Federal Republic of Germany

Form of order sought

— The Federal Republic of Germany has infringed its obligations under Article 7 in conjunction with Article 11 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (1), as a result of the conclusion by the city of Cologne of the contract of 6 August 2004 with the Grundstücksgesellschaft Köln Messe 15-18 GbR (in the meantime Grundstücksgesellschaft Köln Messe 8-11) without carrying out a procedure for the award of contracts involving a Europe-wide invitation to tender in compliance with the above-mentioned provisions;

— The Federal Republic of Germany is to pay the costs.

Pleas in law and main arguments

Article 7 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (‘the Directive’) obliged the contracting authorities when awarding public works contracts to observe certain procedures. In that regard, the negotiated procedure applies only in exceptional cases and only subject to very specific conditions, whereas the open or restricted procedure applies as a rule. In order to ensure development of effective competition in the field of public contracts, it is moreover necessary that contract notices be advertised as a rule throughout the Community. Article 11 of the Directive contains the relevant advertising rules.

The action concerns the award of a public works contract by the city of Cologne to a private investment firm which took place without the required procedure being observed, in particular without publication of a notice. The aim of the award of the contract was the building of four new exhibition halls for use by Kölnmesse GmbH, a private company, the majority of whose shares are held by the city of Cologne. Under the contested public works contract, the investment firm is to construct the new exhibition halls and additional premises according to detailed specifications. The city rented the buildings for a fixed period of thirty years for a total rent of more than EUR 600 million. Under a subtenancy it will in turn sublet the buildings to the trade fair company KölnMesse GmbH.

In the view of the Commission, the contract concerned is a public works contract, which according to the Directive should have been awarded in a competitive procedure, in the context of a Europe-wide invitation to tender. First, the city of Cologne as local authority is the contracting authority within the meaning of the Directive. It is therefore bound to observe the procedural rules laid down in the Directive in relation to the contracts which fall within the scope of the Directive. Second, the Commission is of the view that, despite its designation as ‘lease’ and the apparent precedence of the provision for a right of use (against payment), the contract is for the following reasons to be designated as a public works contract in the sense of Article 1(a) of the Directive.

The Community law definition of a public works contract also applies to contracts which aim to obtain the possibility of using a building which does not yet exist but which was precisely identified by the contracting authority in its specifications. As it is clear from the case-law of the Court that, where it contains various elements, a contract will be classified in accordance with its main purpose, the description of the contract at issue as a ‘lease’ and even any classification as such under German law is irrelevant for assessment pursuant to the Directive.

With regard to the contract at issue, the economic context and the circumstances in which the contract was concluded indicate that the first concern of the parties when concluding the principal contract was the construction of the exhibition halls according to the detailed specifications laid down by the city of Cologne. The focus of the contract is the financing of building work, with the consideration being extended over time. From an economic point of view, the contract leads to the same result as the award of a contract to carry out building works.

It is also irrelevant with regard to the provisions of the Directive whether the contracting authority will own the building to be constructed or not, or whether it wishes itself to use the building or whether it is considering making it available to the public or to certain third parties.

The right of use is in this case a simple consequence of the fact that the building plot (and accordingly under German law necessarily also the building to be constructed) is owned by the private builder. The circumstance that the future user of the exhibition halls will be the Kölnmesse GmbH does not alter the fact that the contracting partner of the investment firm is the city of Cologne alone and that successful performance is also owed to it alone.

As there are no indications in this case which would justify a direct award of the contract without first publishing a notice, the Commission must conclude that, as a result of the conclusion by the city of Cologne as contracting authority of the contract at issue without first publishing a notice, the Federal Republic of Germany has infringed its obligations under the Directive.

(1) OJ 1993 L 199, p. 54.