Case C-28/01: Action brought on 23 January 2001 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2001-02-24
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, award of contract, public contract, works contract

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.