Case C-507/04: Action brought on 8 December 2004 by the Commission of the European Communities against the Republic of Austria
Date: 2005-02-19
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, hunting regulations, protection of animal life

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.

19.2.2005

EN

Official Journal of the European Union

C 45/17

In the view of the Commission, the following were not fully
and/or not correctly implemented for the territory of individual
federal Länder: the provisions concerning the scope of Directive
79/409 (Article 1(1) and (2) of the Directive); the general rules
governing the protection of bird species (Article 5 of the Direc-
tive); the ban on trade (Article 6(1) of the Directive); the provi-
sions governing hunting of
the species listed in Annex II
(Article 7(1) of the Directive); the rules governing the preserva-
tion of populations (Article 7(4) of the Directive); the rules
governing prohibited methods and equipment for hunting and
capturing wild birds (Article 8 of the Directive); the criteria
governing derogations from Articles 5 to 8 (Article 9(1) and (2)
of the Directive); and the provisions on the introduction of
wild bird species (Article 11 of the Directive).

(1) OJ 1979 L 103, p. 1.

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

(Case C-508/04)

(2005/C 45/31)

(Language of the case: German)

Justice of

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

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

1. Declare that the Republic of Austria has failed to fulfil its
obligation to transpose, correctly and completely, Council
Directive 92/43/EEC of 21 May 1992 (1) on the conserva-
tion of natural habitats and of wild fauna and flora by not
transposing, correctly and completely, Articles 1, 6(1) to (4),
7, 11, 12, 13, 15, 16(1) and 22(b) of that directive into
Austrian law.

2. Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

means of the relevant legal provisions of the provinces of
Carinthia, Niederösterreich, Oberösterreich, Salzburg, Steier-
mark, Tyrol and Vorarlberg notified to the Commission or to
its knowledge adopted.

In the Commission's view, the following provisions concerning
federal provinces have not been completely or
individual
correctly transposed: Definitions (Article 1 of the directive);
necessary conservation measures (Article 6(1)); prohibition on
deterioration (Article 6(2)); plans or projects which could have
serious implications for special areas of conservation (Article
6(3) and (4)); in regard to the system of protection under the
‘wild birds’ Directive 79/409/EEC (Article 7); surveillance of
conservation status (Article 11); system of protection for
animal species listed in Annex 1V(a) (Article 12); system of
protection for plant species listed in Annex IV(b) (Article 13);
prohibited means of capture and killing (Article 15); criteria for
derogation from Articles 12 to 15 (Article 16(1)); deliberate
introduction of non-native species (Article 22(b)).

(1) OJ 1992 L 206, p. 7.

Action brought on 14 December 2004 by the Commission
the Portuguese
of

the European Communities against

Republic

(Case C-511/04)

(2005/C 45/32)

(Language of the case: Portuguese)

Justice of

An action against the Portuguese Republic was brought before
the Court of
the European Communities on 14
December 2004 by the Commission of the European Commu-
nities, represented by R. Vidal Puig, acting as Agent, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by failing to adopt the laws, regulations and
administrative provisions needed to implement Commission
Directive 2000/56/EC (1) of 14 September 2000, which
amends Council Directive 91/439/EEC on driving licences,
and in any event by failing to give notice thereof to the
Commission, the Portuguese Republic has failed to fulfil its
obligations under that directive;

By this application the Commission is challenging the defective
transposition into Austrian law of Directive 92/43/EEC by

— Order the Portuguese Republic to pay the costs.