Case C-527/03: Action brought on 15 December 2003 by the Commission of the European Communities against the Kingdom of the Netherlands
Date: 2004-03-06
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, harbour installation, pollution from ships, waste disposal, waste management

6.3.2004

EN

Official Journal of the European Union

C 59/7

The applicant claims that the Court should:

— Declare that, by adopting Article 1, second subparagraph
and first, second and third subparagraphs of Article 2 of
Order No 3231 of the President of the Council of
Ministers of 24 July 2002, which allow for private
negotiations by way of derogation from the provisions of
the Community directives on public supply and service
contracts, and in particular, from the common rules on
advertising and participation laid down by Titles III and
IV of Directive 93/36/EEC (1) and III and V of Directive
92/50/EEC (2), for the acquisition of aircraft to combat
forest fires and for the acquisition of firefighting services
and which similarly allow for such negotiations for the
acquisition of technical and computer equipment and
two-way radios, without any of the lawful conditions for
derogation from those common rules being satisfied and,
in any event, without ensuring any form of direct
advertising such as to permit a competitive comparison
between potential tenderers, the Italian Republic has
failed to fulfil its obligations under Council Directive 93/
36/EEC of 18 June 1992 and Articles 43 and 49 of the
EC Treaty;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

State Forest Department of two-way radio equipment for
communication with firefighting aircraft and for the acqui-
sition and/or implementation, again on behalf of that Depart-
ment, of air services for fighting forest fires, in the last case
providing, in terms similar to the provision in respect of the
acquisition of firefighting aircraft, that the relevant contracts
may also be entered into in derogation from the legislation
transposing the Community directives on public contracts
and, in particular, Directives 92/50/EEC and 93/36/EEC.

The Commission further considers that,
in those cases,
recourse cannot be had to private negotiations and that, in any
case, no evidence of the existence of the conditions required
for recourse to such negotiations was provided by the Italian
authorities.
the conditions under
Article 6(2) and (3) of Directive 93/36/EEC and Article 11(2)
and (3) of Directive 92/50/EEC is satisfied.

In particular, none of

(1) OJ L 199 of 9.8.1993, p. 1.
(2) OJ L 209 of 24.7.1992, p. 1.

Contracts for the supply of aircraft fall within the scope of
Directive 93/36/EEC which governs the award procedure for
public supply contracts.

Action brought on 15 December 2003 by the Commission
of the European Communities against the Kingdom of the
Netherlands

Pursuant to Article 6 of the directive, the contracting auth-
orities are to award supply contracts by the open or restricted
procedures. Recourse to the negotiated procedure is permitted
only in the cases expressly provided for in paragraphs 2 and 3
of that article. Article 6(3) includes, amongst the cases in
which the negotiated procedure is permitted, that where,
for reasons of extreme urgency brought about by events
unforeseeable by the contracting authorities, and for which
those authorities are not responsible, the time limits laid down
for the competitive procedures with prior publication cannot
be observed.

The Commission points out that, in the present case, none of
the conditions laid down by Article 6 of Directive 93/36/EEC
for derogation from the provisions of that directive appears to
apply and that, in particular, there do not appear to be reasons
of urgency such as to permit the contracting authority to avail
itself of the derogation under Article 6(3)(d) of the directive.

The Commission further points out that the contested order
lays down numerous other possibilities for resorting to private
negotiations, namely for the acquisition of
the material
necessary to equip the Department of Civil Protection with
technical and computer systems, for the acquisition by the

(Case C-527/03)

(2004/C 59/12)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 December 2003 by the Commission of the European
Communities, represented by K. Simonsson and W. Wils,
acting as Agents.

The applicant claims that the Court should:

1.

declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 2000/59/EC (1) of the European Parliament and
of the Council of 27 November 2000 on port reception
facilities for ship-generated waste and cargo residues, or,
in any event, by failing to notify the Commission of those
measures, the Kingdom of the Netherlands has failed to
fulfil its obligations under that directive;

C 59/8

EN

Official Journal of the European Union

6.3.2004

2.

order the Kingdom of the Netherlands to pay the costs.

Action brought on 18 December 2003 by the Commission
of the European Communities against the Federal Repub-
lic of Germany

Pleas in law and main arguments

The period for implementation of the Directive expired on
28 December 2002.

(1) OJ 2000 L 332, p. 81.

(Case C-531/03)

(2004/C 59/14)

Action brought on 15 December 2003 by the Commission
of the European Communities against the Kingdom of the
Netherlands

(Case C-528/03)

(2004/C 59/13)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
15 December 2003 by the Commission of the European
Communities, represented by K. Simonsson and W. Wils,
acting as Agents.

The applicant claims that the Court should:

1.

declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 2002/35/EC (1) of 25 April 2002
concerning the setting up of a harmonised safety regime
for fishing vessels of 24 metres in length and over, or, in
any event, by failing to notify the Commission of those
measures, the Kingdom of the Netherlands has failed to
fulfil its obligations under that directive;

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 18 December 2003 by the Commission of the European
Communities, represented by Josef Christian Schieferer, of the
Legal Service of the Commission of the European Communi-
ties, and Florence Simonetti, a national civil servant on
secondment to the Legal Service of the Commission, acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that the Federal Republic of Germany has failed
to fulfil its obligations under Article 4, in conjunction
with point 7(b) and (c) of Annex I and point 10(e) of
Annex II, of Council Directive 85/337/EEC (1)of 27 June
1985 on the assessment of the effects of certain public
and private projects on the environment, as amended by
Council Directive 97/11/EC (2) of 3 March 1997,

— in so far as that directive has, in particular, not yet
been transposed for purposes of road construction
projects in the federal Land of Rhineland-Palatinate
and

— in so far as it is possible for road construction
projects in the federal Land of North Rhine-
Westphalia to be granted development consent
without an environmental impact assessment being
carried out;

2.

order the Kingdom of the Netherlands to pay the costs.

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

of the proceedings.

Pleas in law and main arguments

The period for implementation of the Directive expired on
1 January 2003.

Pleas in law and main arguments

(1) OJ 2002 L 112, p. 21.

The period for transposition of Directive 97/11/EC amending
Directive 85/337/EEC expired on 14 March 1999 without the
federal Land of Rhineland-Palatinate having adopted the
necessary measures to implement it, in particular in relation to
road construction projects.