Judgment of the Court (First Chamber) of 18 November 2004 in Case C-126/03: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil its obligations — Directive 92/50/EEC — Public contracts — Waste transport services — Procedure without prior publication of a contract notice — Contract concluded by a contracting authority in relation to an economic activity subject to competition — Contract concluded by a contracting authority in order to be able to submit an offer in a tender procedure — Proof of the service provider's capabilities — Possibility of relying on the capabilities of a third party — Subcontracting — Consequences of a judgment finding a failure to fulfil an obligation)
Date: 2005-01-08
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, award of contract, contract, infringement of EU law, subcontracting, transport of dangerous goods, waste management

C 6/12

EN

Official Journal of the European Union

8.1.2005

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 28 October 2004

in Case C-124/03 (reference for a preliminary ruling from
the College van Beroep voor het bedrijfsleven): Artrada
(Freezone) NV, Videmecum BV, Jac. Meisner Internationaal
Expeditiebedrijf BV v Rijksdienst voor de keuring van Vee
en Vlees (1)

(Health checks — Production and placing on the market of
raw milk, heat-treated milk and milk-based products —
Mixture made of sugar, cocoa and skimmed-milk powder,
imported from Aruba)

(2005/C 6/20)

(Language of the case: Dutch)

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

In Case C-124/03: reference for a preliminary ruling under
Article 234 EC from the College van Beroep voor het bedrijfs-
leven (Netherlands), made by decision of 11 March 2003,
received at the Court on 20 March 2003, in the proceedings
between Artrada (Freezone) NV, Videmecum BV, Jac. Meisner
Internationaal Expeditiebedrijf BV v Rijksdienst voor de keuring
van Vee en Vlees — the Court (Third Chamber), composed of:
A. Rosas, President of the Chamber (Rapporteur), R. Schintgen
and N. Colneric, Judges; M. Poiares Maduro, Advocate General;
M.-F. Contet, Principal Administrator, for the Registrar, has
given a judgment on 28 October 2004, in which it has ruled:

1. Article 2(2) of Council Directive 92/46/EEC of 16 June 1992
laying down the health rules for the production and placing on the
market of raw milk, heat-treated milk and milk-based products is
to be interpreted as meaning that the expression ‘milk for the
manufacture of milk-based products’ does not include milk consti-
tuents of a product which also contains other non-milk constitu-
ents if the milk constituent cannot be separated from the non-milk
constituents.

2. Article 2(4) of Directive 92/46 is to be interpreted as meaning
that the term ‘milk-based products’ covers both finished products
and semi-finished products which must undergo further processing
before they can be offered for sale to the consumer. In such a case,
it is with regard to the semi-finished product that it must be ascer-
tained whether its milk content is an essential part, in terms of
quantity or for its characterisation. To do that, account must be
taken of the characteristics and objective properties of the semi-
finished product when it is imported, particularly the proportion of
milk or milk product in the semi-finished product, the use which
can be made of the semi-finished product and its taste.

(First Chamber)

of 18 November 2004

in Case C-126/03: Commission of the European Commu-
nities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil its obligations — Direc-
tive 92/50/EEC — Public contracts — Waste transport
services — Procedure without prior publication of a contract
notice — Contract concluded by a contracting authority in
relation to an economic activity subject to competition —
Contract concluded by a contracting authority in order to be
able to submit an offer in a tender procedure — Proof of the
service provider's capabilities — Possibility of relying on the
capabilities of a third party — Subcontracting — Conse-
quences of a judgment finding a failure to fulfil an obliga-
tion)

(2005/C 6/21)

(Language of the case: German)

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

In Case C-126/03: action under Article 226 EC for failure to
fulfil obligations, brought on 20 March 2003, between
Commission of the European Communities (Agent: K. Wiedner)
and Federal Republic of Germany (Agent: W.-D. Plessing
assisted by H.-J. Prieß) — the Court (First Chamber), composed
of: P. Jann (Rapporteur), President of the Chamber, A. Rosas,
R. Silva de Lapuerta, K. Lenaerts and K. Schiemann, Judges;
L.A. Geelhoed, Advocate General; H. von Holstein, Deputy
for the Registrar, has given a judgment on 18
Registrar,
November 2004, in which it:

1. Declares that, as the contract for the transport of waste from the
discharge points in the Donauwald region to the Munich-North
thermal power station was awarded by the City of Munich in
breach of the procedural rules laid down in Article 8 of Council
Directive 92/50/EEC of 18 June 1992 relating to the coordina-
tion of procedures for the award of public service contracts, read in
conjunction with Article 11(1) of
the Federal
Republic of Germany has failed to fulfil its obligations under that
directive;

that directive,

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

(1) OJ C 146 of 21.6.2003.

(1) OJ C 146 of 21.6.2003.