Case C-125/03: Action brought on 20 March 2003 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2003-05-10
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, public contract, publication, termination of a contract, waste disposal

C 112/20

EN

Official Journal of the European Union

10.5.2003

Action brought on 20 March 2003 by the Commission of
the European Communities against the Federal Republic
of Germany

Action brought on 21 March 2003 by the Commission of
the European Communities against Trendsoft (Irl) Ltd

(Case C-125/03)

(2003/C 112/34)

(Case C-127/03)

(2003/C 112/35)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 20 March 2003 by the Commission of the European
Communities, represented by Klaus Wiedner, of
its Legal
Service, with an address for service in Luxembourg.

The Commission claims that the Court should:

— declare that, in so far as the refuse disposal contracts
concluded by the town councils of Lüdinghausen and
Olfen and the district councils of Nordkirchen, Senden
and Ascheberg were awarded without complying with
the requirements concerning contract notices laid down
in Article 8 in conjunction with Articles 15(2) and 16(1)
of Directive 92/50, (1) the Federal Republic of Germany
has failed to fulfil its obligations under that directive, and

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

Pleas in law and main arguments

Although it has admitted the infringements complained of and
asserts its intention in future to invite tenders for refuse
disposal services in a manner consistent with Community law
on the award of contracts, the defendant has taken no steps
to terminate the existing contracts which still have until
31 December 2003 to run.

The defendant does not even contend that termination of the
contracts is impossible under German law. It merely points
out that premature termination of the contracts could give rise
to claims for damages. On the contrary, it is conducive to the
effectiveness of Community law on the award of contracts if
contracting authorities can expect,
if necessary, to have to
make payments of damages.

Moreover, the obligation to remedy infringements of Com-
munity law on the award of contracts by also terminating
contracts already concluded cannot be called in question by
Article 2(6) of Directive 89/665, (2) which deals with the
review of possible infringements of Community law on the
award of contracts. A Treaty infringement can be regarded as
ended only when the Member State has both acknowledged
the unlawfulness of its conduct and completely remedied the
infringement.

( 1) OJ L 209 of 24.7.1992, p. 1.
( 2) OJ L 395 of 30.12.1989, p. 33.

An action against Trendsoft (Irl) Ltd was brought before the
Court of Justice of the European Communities on 21 March
2003 by the Commission of the European Communities,
represented by L. Flynn and C. Giolito, acting as agents, with
an address for service in Luxembourg.

The Applicant claims that the Court should:

— condemn the defendant to pay the applicant the sum of
24 751,57 Euros (twenty four thousand seven hundred
and fifty one Euros and fifty seven cents), corresponding
and
as
to 21 303,00 Euros
3 448,57 Euros as late payment interest as of 31 March
2003, at a rate of 6,09 % until 31 December 2002 and a
rate of 8,09 % thereafter;

amount

due

the

— condemn the defendant to pay 4,72 Euros (four Euros
and seventy two cents) per day by way of interest from
1 April 2003 until the date on which the debt is repaid
in full;

— condemn the defendant to pay the costs of the present

action.

Pleas in law and main arguments

In accordance with Article 16(3) of the financial Annex to the
contract, the defendant undertook, in the event that the total
financial contribution due for the project was less than the
payments made for the project, to immediately reimburse the
difference to the Commission.

In its final consolidated cost statement of 23 September 1999
the Commission indicated that it would not
take certain
claimed costs into account and explained why these were
inadmissible. The defendant accepted the Commission’s pro-
posed final consolidated cost statement by fax of 5 April 2000.
It does not dispute its obligation to reimburse the amounts
unduly paid by the Commission but has failed to comply with
that obligation and is, therefore, in breach of its obligation
arising under the contract.