Judgment of the Court (Fifth Chamber) of 27 February 2003 in Case C-389/00: Commission of the European Communities v Federal Republic of Germany (Failure to fulfil obligations — Articles 23 and 25 EC — Charge having an equivalent effect- Export of waste — Basle Convention — Regulation No 259/93 — Contribution to a solidarity fund)
Date: 2003-04-26
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, export of waste, waste management

C 101/4

EN

Official Journal of the European Union

26.4.2003

court between Adolf Truley GmbH and Bestattung Wien
GmbH, on the interpretation of Article 1(b) of Council
Directive 93/36/EEC of 14 June 1993 coordinating procedures
for the award of public supply contracts (OJ 1993 L 199,
p. 1), the Court (Fifth Chamber), composed of: M. Wathelet,
President of the Chamber, C.W.A. Timmermans (Rapporteur),
P. Jann, S. von Bahr and A. Rosas, Judges; S. Alber, Advocate
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 27 February 2003, in which it has
ruled:

1.

2.

3.

The term ‘needs in the general interest’ in the second subpara-
graph of Article 1(b) of Council Directive 93/36/EEC of
14 June 1993 coordinating procedures for the award of public
supply contracts is an autonomous concept of Community law.

The activities of funeral undertakers may meet a need in the
general interest. The fact that a regional or local authority is
legally obliged to arrange funerals — and, where necessary, to
bear the costs of those funerals — where they have not been
arranged within a certain period after a death certificate has
been issued constitutes evidence that there is such a need in the
general interest.

The existence of significant competition does not, of itself, allow
the conclusion to be drawn that there is no need in the general
interest, not having an industrial or commercial character. The
national court must assess whether or not there is such a
need, taking account of all the relevant legal and factual
circumstances, such as those prevailing at the time of establish-
ment of the body concerned and the conditions under which it
exercises its activity.

4. A mere review does not satisfy the criterion of management
supervision in the third indent of the second subparagraph of
Article 1(b) of Directive 93/36. That criterion is, however,
satisfied where the public authorities supervise not only the
annual accounts of the body concerned but also its conduct from
the point of view of proper accounting, regularity, economy,
efficiency and expediency and where those public authorities are
authorised to inspect the business premises and facilities of that
body and to report the results of those inspections to a regional
authority which holds, through another company, all the shares
in the body in question.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 27 February 2003

in Case C-389/00: Commission of the European Communi-
ties v Federal Republic of Germany (1)

(Failure to fulfil obligations — Articles 23 and 25 EC —
Charge having an equivalent effect- Export of waste — Basle
Convention — Regulation No 259/93 — Contribution to a
solidarity fund)

(2003/C 101/07)

(Language of the case: German)

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

In Case C-389/00, Commission of the European Communities
(Agent: J.C. Schieferer) v Federal Republic of Germany (Agent:
B. Muttelsee-Schön, assisted by H.-J. Koch): Application for a
declaration that, by enacting the Gesetz über die Überwachung
und Kontrolle der grenzüberschreitenden Verbringung von
Abfällen (Abfallverbringungsgesetz) (Act on the supervision
and control of transboundary shipments of waste; ‘the waste
shipment act’) of 30 September 1994, BGBl. 1994 I, p. 2771),
establishing a solidarity fund for the return of waste and
requiring exporters of waste, including those exporting to
other Member States, to contribute to that fund, the Federal
Republic of Germany has failed to fulfil its obligations under
Articles 23 EC and 25 EC,
(Fifth Chamber),
composed of: D.A.O. Edward, acting for the President of the
Chamber, A. La Pergola, P. Jann, S. von Bahr and A. Rosas
(Rapporteur), Judges; A. Tizzano, Advocate General; H.A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 27 February 2003, in which it:

the Court

1. Declares that, by subjecting shipments of waste to other
Member States to a mandatory contribution to the solidarity
fund for the return of waste established by the Gesetz über
die Überwachung und Kontrolle der grenzüberschreitenden
Verbringung von Abfällen (Abfallverbringungsgesetz)
of
30 September 1994, the Federal Republic of Germany has
failed to fulfil its obligations under Articles 23 EC and 25 EC;

( 1) OJ C 372 of 23.12.2000.

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

(1) OJ C 4 of 6.1.2001.