Case C-27/01: Action brought on 23 January 2001 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2001-02-24
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, horticulture, plant propagation, supervisory body

24.2.2001

EN

Official Journal of the European Communities

C 61/11

Action brought on 16 January 2001 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

Action brought on 23 January 2001 by the Commission
of the European Communities against the French Republic

(Case C-20/01)

(2001/C 61/18)

(Case C-26/01)

(2001/C 61/19)

An action against the Federal Republic of Germany was
brought before the Court of Justice on 16 January 2001 by the
Commission of the European Communities, represented by
Josef Christian Schieferer, of the Legal Service of the Com-
mission of the European Communities, with an address for
service in Luxembourg at the office of Carlos Go´ mez de la
Cruz, of the Legal Service of the Commission of the European
Communities, Wagner Centre C 254, Kirchberg.

The applicant claims that the Court should:

(1) declare that, by failing to invite tenders for the award of
the contract for the treatment of waste water in the
Municipality of Bockhorn and to arrange for notice of
the results of the procedure for the award of the contract
to be published in the S Series of the Official Journal of
the European Communities,
the Federal Republic of
Germany has failed to comply with its obligations under
Article 8 in conjunction with Article 15(2) and Article
16(1) of Council Directive 92/50/EEC (1) of 18 June 1992
relating to the coordination of procedures for the award
of public service contracts;

(2) order the defendant to pay the costs.

Pleas in law and main arguments

The German Government concedes that a Community-wide
invitation to tender for the award of the contract for the
treatment of waste water in the Municipality of Bockhorn
should have been issued in accordance with the provisions
of Directive 92/50/EEC; notwithstanding that concession,
however, and despite the fact that an instruction was issued by
the Government of the Land requiring subordinate authorities
to ensure in a suitable manner that the contracting authorities
within that Land complied to the letter with the rules prescribed
by Community law for the award of contracts, the fact remains
that a definite infringement of the Treaty has been committed.
Moreover, the Municipality of Bockhorn has committed a
further infringement of EC law by maintaining the waste-water
contract and continuing to apply that contract in the same
way as before. Since the conduct contrary to the directive is
thus subsisting, it is undeniable that the defendant has failed
to take, within the time-limit laid down in the reasoned
opinion, all the national measures required in order to comply
with the directive.

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

An action against the French Republic was brought before the
Court of Justice on 23 January 2001 by the Commission of
the European Communities, represented by G. Berscheid,
acting as Agent, with an address for service in Luxembourg.

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

— declare that, by failing to bring into force within the
prescribed time-limit the laws, regulations and adminis-
trative measures necessary in order to comply with
Council Directive 98/56/EC of 20 July 1998 on the
marketing of propagating material of ornamental
plants (1), the French Republic has failed to comply with
its obligations under Article 19 of that directive;

— order the French Republic to pay the costs.

Pleas in law and main arguments

The mandatory nature of the provisions of Articles 10 and
249 EC is such as to oblige Member States to adopt the
measures necessary in order to transpose directives which are
addressed to them into their national legal order prior to the
expiry of the time-limit prescribed for so doing. The time-limit
fixed in Article 19 of the directive expired on 1 July 1999.

(1) OJ L 226 of 13.8.1998, p. 16.

Action brought on 23 January 2001 by the Commission
of the European Communities against the Grand Duchy
of Luxembourg

(Case C-27/01)

(2001/C 61/20)

An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice on 23 January 2001 by the
Commission of the European Communities, represented by
G. Berscheid, acting as Agent, with an address for service in
Luxembourg.

C 61/12

EN

Official Journal of the European Communities

24.2.2001

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

(2) order the Federal Republic of Germany to pay the costs.

— declare that, by failing to bring into force within the
prescribed time-limit the laws, regulations and adminis-
trative measures necessary in order to comply with
Council Directive 98/56/EC of 20 July 1998 on the
marketing of propagating material of ornamental
plants (1), the Grand Duchy of Luxembourg has failed to
comply with its obligations under Article 19 of that
directive;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those in
Case C-26/01.

(1) OJ L 226 of 13.8.1998, p. 16.

Action brought on 23 January 2001 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

(Case C-28/01)

(2001/C 61/21)

An action against the Federal Republic of Germany was
brought before the Court of Justice on 23 January 2001 by the
Commission of the European Communities, represented by
Josef Christian Schieferer, of the Legal Service of the Com-
mission of the European Communities, with an address for
service in Luxembourg at the office of Carlos Go´ mez de la
Cruz, of the Legal Service of the Commission of the European
Communities, Wagner Centre C 254, Kirchberg.

The applicant claims that the Court should:

(1) declare that, by virtue of

that

the fact

the City of
Braunschweig awarded a contract for refuse disposal by
negotiated procedure without prior publication of a
contract notice, notwithstanding that the criteria laid
down in Article 11(3) of Directive 92/50/EE (1) for an
award by negotiated procedure without a Community-
wide invitation to tender were not fulfilled, the Federal
Republic of Germany has failed to comply with its
obligations in respect of the award of public service
contracts under Article 8 and Article 11(3)(c) of that
directive;

Pleas in law and main arguments

Although, under Article 3(k) of the (former version of the) EC
Treaty, the activities of the Community include a policy in the
sphere of the environment, an environmental policy forms
part of the task of establishing a common market, as described
in Article 2 of the (former version of the) EC Treaty, only in so
far as the achievement of the tasks in question is designed to
promote ‘growth respecting the environment’. It follows from
this that,
in the implementation of Community policies,
reasonable regard must be had to environmental aspects, but
it does not follow that environmental considerations must be
given precedence over the implementation of the other policies
specified. For the purposes of the present case, this means that,
in the context of the award of a public service contract, lengthy
transportation routes, or the avoidance of such routes, may
not constitute a factor the effect of which is totally to preclude
from the outset, by reference to an environmental argument,
the issuing of an invitation to tender for the provision of the
services in question and thereby to create an obstacle to trade
in services within the Community. Consequently, the City of
Braunschweig was not entitled, by having recourse to an
environmental argument, illegally to evade the duty imposed
by Community law to issue a Community-wide invitation to
tender for a contract for refuse disposal.

It is irrelevant that the German Government has conceded that
there has been an infringement of the Community rules
governing the award of public contracts and that the German
authorities concerned have been instructed to comply with the
provisions of EC law governing the award of public contracts,
since, by maintaining the contract and continuing to apply it,
the City of Braunschweig is persisting in its infringement of
Community law.

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

Action brought on 24 January 2001 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-29/01)

(2001/C 61/22)

An action against the Kingdom of Spain was brought before
the Court of Justice on 24 January 2001 by the Commission
of the European Communities, represented by Gregorio Valero
Jordana, with an address for service in Luxembourg.