EN Official Journal of the European Union C 223/28

Action brought on 24 June 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-275/08)

(2008/C 223/44)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: G. Wilms and D. Kukovec, 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 6, in conjunction with Article 9, of Council Directive 93/36/EEC of 14 June 1993 (1), by reason of the fact that the Datenzentrale Baden-Württemberg (Central Data Office of Baden-Württemberg) awarded a public contract for the transfer and maintenance of a software application without implementing the award procedures including Europe-wide tendering;

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

Pleas in law and main arguments

The object of the present action is the conclusion of a contract for a software application designed for motor vehicle registration between the Datenzentrale Baden-Württemberg (Central Data Office of Baden-Württemberg) and the Anstalt für Kommunale Datenverarbeitung in Bayern (Institute for local-authority data-processing in Bavaria) (AKDB). The contested award decision was made by way of a negotiated procedure without a contract notice, in which negotiations took place exclusively with the AKDB.

In the opinion of the Commission, the fact that the contract in Germany had already been the object of a review procedure within the meaning of Directive 89/665/EEC is not relevant for the declaration of a failure to fulfil an obligation under the Treaty. This is due to the fact that there are fundamental differences in nature between a review procedure before the national courts and Treaty-infringement proceedings under Article 226 EC, both with regard to the objective and to the parties and the course of the proceedings.

The contested contract in the present case consists of a public supply contract within the meaning of Article 1(a) of Directive 93/36/EEC. According to the Commission's findings, the value of the contract amounts to approximately EUR 1 million, and thus considerably exceeds the threshold in the directive. The Central Data Office has legal personality under public law, and was established with the particular purpose to coordinate and promote electronic data-processing in public administration in the interests of the general public. It is, moreover, under the predominant control of the State of Baden-Württemberg, which appoints more than half the members of the administrative council. It is, therefore, a contracting authority within the meaning of Article 1(b) of Directive 93/36/EEC, which is obliged to comply with the procedures laid down therein when awarding public contracts within the scope of that directive. The fact that both the Central Data Office and the AKDB have legal personality under public law is not relevant for the purposes of the application of Directive 93/36/EEC.

According to the Commission's findings, there are no apparent facts that could justify an open market award of the contract, such as in the form of a negotiated procedure without a prior contract notice. According to the case-law of the Court of Justice, the negotiated procedure is exceptional in nature, and may be applied only in ‘cases which are set out in an exhaustive list’. The burden of proof with respect to the exceptional circumstances lies with the Member State wishing to rely on them. As, however, the defendant in the present case has not satisfied this burden of proof, the Commission was forced to conclude that, by concluding the contested contract without implementing the award procedures including Europe-wide tendering, the Federal Republic of Germany had breached Article 6, in conjunction with Article 9, of Directive 93/36/EEC coordinating procedures for the award of public supply contracts.

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