Case C-503/04: Action brought on 7 December 2004 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2005-02-19
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, award of contract, negotiated contract, services contract

19.2.2005

EN

Official Journal of the European Union

C 45/15

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by decision of that court of 26 November
2004 in the case of Heintz van Landewyck SARL against
Staatssecretaris van Financiën)

(5) thereof, be interpreted as meaning that failure to
reimburse turnover tax in circumstances such as those
referred to in Question 1 is contrary thereto?

(Case C-494/04)

(2005/C 45/28)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Hoge Raad der Nederlanden
(Supreme Court of the Netherlands) of 26 November 2004
received at the Court Registry on1 December 2004, for a preli-
minary ruling in the case of Heintz van Landewyck SARL
against Staatssecretaris van Financiën on the following ques-
tions:

1. Must the Excise Duty Directive (1) be interpreted as requiring
the Member States to enact a statutory provision under
which they must reimburse or offset amounts by way of
excise duty due or paid at
the time excise labels are
requested in a case in which the requesting party (the holder
of an authorisation to operate a tax warehouse) has not
used, nor will be able to use,
labels which disappeared
before they were affixed to products subject to excise duty,
and third parties cannot have made and will not be able to
make lawful use of the labels even though it cannot be
ruled out that they have used, or will use, the labels by
affixing them to tobacco products which have been put on
the market in an irregular manner?

that

2 (a) Must the Sixth Directive, (2) and in particular Article
27(1) and (5) thereof, be interpreted as meaning that the
the Netherlands Government notified the
fact
Commission at a date later than that
laid down in
Article 27(5) of the Sixth Directive, as amended by the
Ninth Directive, that it wished to maintain the special
procedure for charging tax on tobacco products means
that if an individual invokes the failure to observe the
time-limit, after the date when notification was in fact
made, this special procedure for charging tax must be
disapplied also after the making of the notification?

(b) If the answer to Question 2(a) is in the negative, must
the Sixth Directive, and in particular Article 27(1) and
(5) thereof, be interpreted as meaning that the special
procedure for charging tax on tobacco products laid
down in Article 28 of the Wet op de Omzetbelasting
must be disapplied on the grounds that it is incompa-
tible with the conditions laid down by the abovemen-
tioned provisions of the directive?

(c) If the answer to Question 2(b) is in the negative, must
the Sixth Directive, and in particular Article 27(1) and

(1) Council Directive 92/12/EEC of 25 February 1992 on the general
arrangements for products subject
to excise duty and on the
holding, movement and monitoring of such products, OJ 1992 L
76, p. 1.

(2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
– Common system of value added tax: uniform basis of assessment,
OJ 1977 L 145, p. 1.

Action brought on 7 December 2004 by the Commission
of the European Communities against the Federal Republic
of Germany

(Case C-503/04)

(2005/C 45/29)

(Language of the case: German)

the Federal Republic of Germany was
An action against
brought before the Court of Justice of the European Commu-
nities on 7 December 2004 by the Commission of the Euro-
pean Communities, represented by Bernhard Schima, acting as
Agent, with an address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

1. Declare that the Federal Republic of Germany has failed to
fulfil its obligations under Article 228(1) of the Treaty estab-
lishing the European Community inasmuch as it has not
taken the necessary measures to comply with the judgment
of the European Court of Justice of 10 April 2003 in Joined
Cases C-20/01 and C-28/01 Commission v Germany (1)
regarding the award of a contract for the collection of waste
water by the Municipality of Bockhorn and of a contract for
waste disposal by the City of Braunschweig;

2. Order the Federal Republic of Germany to pay to the
Commission's own resources account of the European Com-
munity a daily penalty payment

of EUR 31 680 for each day of delay in implementing the
measures necessary to comply with the abovementioned
judgment in respect of the award of a contract for the
collection of waste water by the Muncipality of Bockhorn
and

C 45/16

EN

Official Journal of the European Union

19.2.2005

of EUR 126 720 for each day of delay in implementing the
measures necessary to comply with the abovementioned
judgment in respect of the award of a contract for waste
disposal by the City of Braunschweig,

in each case from the date of delivery of that judgment until
the measures are implemented;

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

the proceedings.

Pleas in law and main arguments

In its judgment of 10 April 2003 the Court of Justice declared
that:

— since the Municipality of Bockhorn (Germany)

failed to
invite tenders for the award of the contract for the collec-
tion 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 Commu-
nities, the Federal Republic of Germany, at the time of the
award of that public service contract, failed to fulfil its obli-
gations 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;

— 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 Com-
munity-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 Directive 92/50.

The Commission takes the view that fulfilment of the obliga-
tions of the Federal Republic of Germany which flow from that
judgment and from Article 228 EC requires that the contracts
concluded in breach of public procurement law be terminated.

calculated in accordance with the principles observed by it in
the past.

(1) [2003] ECR I-3609.

Action brought on 8 December 2004 by the Commission
of the European Communities against the Republic of
Austria

(Case C-507/04)

(2005/C 45/30)

(Language of the case: German)

Justice of

An action against the Republic of Austria was brought before
the European Communities on
the Court of
8 December 2004 by the Commission of
the European
Communities, represented by Michael Van Beek and Bernhard
Schima, acting as Agents, assisted by Matthias Lang, Rechtsan-
walt, with an address for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

1. declare that, by failing to implement correctly and fully in
Austrian law Articles 1(1) and (2), 5, 6(1), 7(1) and (4), 8,
9(1) and (2) and 11 of Council Directive 79/409/EEC of
2 April 1979 (1) on the conservation of wild birds, the
Republic of Austria has failed to fulfil its obligation to trans-
pose that directive fully and correctly;

2. order the Republic of Austria to bear the costs of

the

proceedings.

The measures notified by the Federal Republic of Germany so
far do not, however, appear to be sufficient to bring an end to
the infringement of the Treaty established by the Court of
Justice.

Pleas in law and main arguments

In the event that the Federal Republic of Germany does not
take the measures necessary to bring an end to that infringe-
ment of
the Treaty before the judgment requested in the
present action is given, the Commission requests the imposi-
tion of a daily penalty payment which it proposes should be

By the present action the Commission takes issue with the
defective transposition in Austrian law of Directive 79/409/EEC
by way of the relevant legal provisions of the Länder of Burgen-
land, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria,
Tyrol, Vorarlberg and Vienna which were notified to the
Commission or which the Commission understands to have
been adopted.