Judgment of the Court (Fifth Chamber) of 10 April 2003 In Joined Cases C-20/01 and C-28/01: Commission of the European Communities v Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Admissibility — Legal interest in bringing proceedings — Directive 92/50/EEC — Procedures for the award of public service contracts — Negotiated procedure without prior publication of a contract notice — Conditions)
Date: 2003-06-21
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, award of contract, public contract, services contract, wastewater

C 146/6

EN

Official Journal of the European Union

21.6.2003

JUDGMENT OF THE COURT

(Fifth Chamber)

of 10 April 2003

In Joined Cases C-20/01 and C-28/01: Commission of the
European Communities v Federal Republic of Germany (1)

its obligations —
(Failure by a Member State to fulfil
Admissibility — Legal interest in bringing proceedings —
Directive 92/50/EEC — Procedures for the award of public
service contracts — Negotiated procedure without prior
publication of a contract notice — Conditions)

(2003/C 146/09)

(Language of the case: German)

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

In Joined Cases C-20/01 and C-28/01, Commission of the
European Communities (Agent: J. Schieferer) v Federal Repub-
lic of Germany (Agent: W.-D. Plessing, assisted by H.-J. Prieß)
supported by United Kingdom of Great Britain and Northern
Ireland (Agent: R. Magrill, assisted by R. Williams, barrister):
Applications for declarations that:

— by failing to invite tenders for the award of the contract
for the collection of waste water in the Municipality of
Bockhorn (Germany) and to publish notice of the results
of the procedure for the award of the contract in the
Supplement to the Official Journal of the European
Communities, the Federal Republic of Germany, at the
time of the award of that public service contract, failed to
fulfil its obligations under Article 8 in conjunction with
Article 15(2) and Article 16(1) of Council Directive 92/
50/EEC of 18 June 1992 relating to the coordination of
procedures for the award of public service contracts (OJ
1992 L 209, p. 1);

— at the time of the award of a public service contract, the
Federal Republic of Germany failed to fulfil its obligations
under Article 8 and Article 11(3)(b) of Directive 92/50
by virtue of
the fact that the City of Braunschweig
(Germany) awarded a contract for waste disposal by
negotiated procedure without prior publication of a
contract notice, although the criteria laid down by
Article 11(3) for an award of a contract by privately
negotiated procedure without a Community-wide invi-
tation to tender had not been met,

the Court (Fifth Chamber), composed of: M. Wathelet, Presi-
dent of the Chamber, D. A. O. Edward, A. La Pergola, P. Jann
(Rapporteur) and A. Rosas, Judges; L. A. Geelhoed, Advocate
General; M.-F. Contet, Administrator, for the Registrar, has
given a judgment on 10 April 2003, in which it:

1. Declares that since the Municipality of Bockhorn (Germany)
failed to invite tenders for the award of the contract for the
collection of its waste water and failed to publish notice of the
results of the procedure for the award of the contract in the
Supplement to the Official Journal of the European Communi-
ties, the Federal Republic of Germany, at the time of the award
of that public service contract, failed to fulfil its obligations
under Article 8 in conjunction with Article 15(2) and
Article 16(1) of Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the award
of public service contracts;

2. Declares that since the City of Braunschweig (Germany)
awarded a contract for waste disposal by negotiated procedure
without prior publication of a contract notice, although the
criteria laid down in Article 11(3) of Directive 92/50 for an
award by privately negotiated procedure without a Community-
wide invitation to tender had not been met, the Federal Republic
of Germany, at the time of the award of that public service
contract, failed to fulfil its obligations under Article 8 and
Article 11(3)(b) of that directive;

3. Orders the Federal Republic of Germany to pay the costs;

4. Orders the United Kingdom of Great Britain and Northern

Ireland to bear its own costs.

(1) OJ C 61 of 24.2.2001.

JUDGMENT OF THE COURT

of 6 May 2003

in Case C-104/01 (Reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Libertel Groep BV v
Benelux-Merkenbureau, (1)

(Trade marks — Approximation of laws — Directive 89/
104/EEC — Signs capable of constituting a trade mark—
Distinctive character — Colour per se — Orange)

(2003/C 146/10)

(Language of the case: Dutch)

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

In Case C-104/01: Reference to the Court under Article 234
EC by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that
court between Libertel Groep BV and Benelux-Merkenbureau,
on the interpretation of Article 3 of First Council Directive 89/
104/EEC of 21 December 1988 to approximate the laws of
the Member States relating to trade marks (OJ 1989 L 40,