Judgment of the Court (Fifth Chamber) of 25 October 2001 in Case C-493/99: Commission of the European Communities v Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 EC and 49 EC) — National legislation on the contracting out of labour in the construction industry — Exclusion of undertakings not party to a collective agreement for that industry and not having an establishment in the Member State in which services are to be provided — Proportionality)
Date: 2001-12-22
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, building industry, economic concentration, labour mobility

C 369/4

EN

Official Journal of the European Communities

22.12.2001

between those organisations, there is no breach of Article 90(1)
of the Treaty, in conjunction with Article 85(1)(c) thereof (now
Article 81(1)(c) EC);

W.-D. Plessing and B. Muttelsee-Schön) — application for a
declaration that, by providing in its legislation that construc-
tion undertakings established in other Member States

— a national provision such as Paragraph 18(3) of the Rettungs-
dienstgesetz, as enacted on 22 April 1991, is contrary to
Article 90(1) of the Treaty read in conjunction with Article 86
thereof (now Article 82 EC), in so far as it is established that:

— the medical aid organisations such as those in question in
the main proceedings occupy a dominant position on the
market for emergency transport services,

— that dominant position exists on a substantial part of the

common market, and

— there is a sufficient degree of probability, having regard to
the economic characteristics of the market in question, that
the provision actually prevents undertakings established in
Member States other than the Member State in question
from carrying out ambulance transport services there, or
even from establishing themselves there;

— however, a provision such as Paragraph 18(3) of the Rettungs-
dienstgesetz 1991 is justified under Article 90(2) of the Treaty
provided that it does not bar the grant of an authorisation to
independent operators where it is established that the medical
aid organisations entrusted with the operation of the public
emergency ambulance service are manifestly unable to satisfy
demand in the area of emergency ambulance and patient
transport services.

(1) OJ C 63 of 4.3.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 25 October 2001

in Case C-493/99: Commission of the European Communi-
ties v Federal Republic of Germany(1)

(Failure by a Member State to fulfil its obligations —
Articles 52 and 59 of the EC Treaty (now, after amendment,
Articles 43 EC and 49 EC) — National legislation on the
contracting out of labour in the construction industry —
Exclusion of undertakings not party to a collective agreement
for that industry and not having an establishment in the
Member State in which services are to be provided —
Proportionality)

(2001/C 369/06)

(Language of the case: German)

(a) may not provide transfrontier services on the German
market as part of a consortium unless they have their seat
or at least an establishment in Germany employing their
own staff and have concluded a company-wide collective
agreement for those staff;

(b) may not contract out workers from another country to
other construction undertakings unless they have their
seat or at least an establishment in Germany employing
their own staff and, as members of a German employers’
association, are covered by framework and social-welfare
collective agreements;

(c) may not establish in Germany a branch recognised as a
construction undertaking if its staff is entrusted solely
with work on administration, marketing, planning, super-
vision and/or wages and salaries, but, in order to be so
recognised, such an establishment must employ on the
German labour market workers who spend more than
50 % of the firm’s total working time on building sites,

the Federal Republic of Germany has failed to fulfil
its
obligations under Articles 52 and 59 of the EC Treaty (now,
after amendment, Articles 43 EC and 49 EC) — the Court
(Fifth Chamber), composed of: P.
the
Chamber, D.A.O. Edward (Rapporteur), A. La Pergola, L. Sevo´ n
and C.W.A. Timmermans, Judges; D. Ruiz-Jarabo Colomer,
Advocate General; R. Grass, Registrar, has given a judgment
on 25 October 2001, in which it:

Jann, President of

1. Declares that, by providing in its legislation that construction

undertakings established in other Member States

(a) may not provide transfrontier services on the German
market as part of a consortium unless they have their seat
or at least an establishment in Germany employing their
own staff and have concluded a company-wide collective
agreement for those staff;

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-493/99: Commission of the European Communities
J. Sack) v Federal Republic of Germany (Agents:
(Agent:

(b) may not contract out workers from another country to
other construction undertakings unless they have their seat
or at least an establishment in Germany employing their
own staff and, as members of a German employers’
association, are covered by framework and social-welfare
collective agreements;

22.12.2001

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Official Journal of the European Communities

C 369/5

(c) may not establish in Germany a branch recognised as a
construction undertaking if its staff is entrusted solely with
work on administration, marketing, planning, supervision
and/or wages and salaries, but in order to be so recognised,
such an establishment must employ on the German labour
market workers who spend more than 50 % of the firm’s
total working time on building sites,

the Federal Republic of Germany has failed to fulfil
its
obligations under Articles 52 and 59 of the EC Treaty (now,
after amendment, Articles 43 EC and 49 EC);

Article 29(1) and (2) of Council Directive 71/305/EEC of 26 July
1971 concerning the coordination of procedures for the award of
public works contracts, as amended by Council Directive 89/440/EEC
of 18 July 1989, must be interpreted as permitting an adjudicating
authority which has chosen to award a contract
to the most
economically advantageous tender to award that contract to the
tenderer who has submitted the tender the ultimate cost of which, in
the professional opinion of an expert, is likely to be the lowest,
provided that the equal treatment of tenderers has been ensured,
which presupposes that
the
procedure have been guaranteed and in particular that:

the transparency and objectivity of

2. Orders the Federal Republic of Germany to pay the costs.

— this award criterion was clearly stated in the contract notice or

contract documents; and

(1) OJ C 63 of 4.3.2000.

— the professional opinion is based in all essential points on
objective factors regarded in good professional practice as
relevant and appropriate to the assessment made.

(1) OJ C 102 of 8.4.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 18 October 2001

in Case C-19/00 (reference for a preliminary ruling from
the Supreme Court of Ireland): SIAC Construction Ltd v
County Council of the County of Mayo (1)

JUDGMENT OF THE COURT

(Fourth Chamber)

of 11 October 2001

(Public works contracts — Award to the most economically
advantageous tender — Award criteria)

in Case C-254/00: Commission of the European Communi-
ties v Kingdom of the Netherlands (1)

(2001/C 369/07)

(Language of the case: English)

(Failure by a Member State to fulfil obligations — Failure to
implement Directive 95/47/EC within the prescribed period
— Use of standards for the transmission of television
signals)

In Case C-19/00: reference to the Court under Article 234 EC
from the Supreme Court of Ireland for a preliminary ruling in
the proceedings pending before that court between SIAC
Construction Ltd and County Council of the County of Mayo
— on the interpretation of Article 29 of Council Directive
71/305/EEC of 26 July 1971 concerning the coordination of
procedures for the award of public works contracts (OJ,
English Special Edition 1971 (II), p. 682), as amended by
Council Directive 89/440/EEC of 18 July 1989 (OJ 1989
L 210, p. 1) — the Court (Fifth Chamber), composed of:
P. Jann (Rapporteur), President of the Chamber, A. La Pergola,
L. Sevo´ n, M. Wathelet and C.W.A. Timmermans,
Judges;
F.G. Jacobs, Advocate General; H.A. Rühl, Principal Adminis-
trator, for the Registrar, has given a judgment on 18 October
2001, in which it has ruled:

(2001/C 369/08)

(Language of the case: Dutch)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-254/00: Commission of the European Communities
(Agent: H. van Lier) v Kingdom of the Netherlands (Agents:
M.A Fierstra, and subsequently by J. van Bakel) — application
for a declaration that by failing to bring into force or to
communicate all of the laws, regulations and administrative
provisions necessary to comply with Directive 95/47/EC of
the European Parliament and of the Council of 24 October