Judgment of the Court (First Chamber) of 11 January 2005 in Case C-26/03 (reference for a preliminary ruling from the Oberlandesgericht Naumburg): Stadt Halle, RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna (Directive 92/50/EEC — Public service contracts — Award with no public call for tenders — Award of the contract to a semi-public undertaking — Judicial protection — Directive 89/665/EEC)
Date: 2005-03-05
Institutions: Court of Justice
Subjects: award of contract, interpretation of the law, provision of services, public contract, single market, works contract

C 57/6

EN

Official Journal of the European Union

5.3.2005

JUDGMENT OF THE COURT

(First Chamber)

of 11 January 2005

in Case C-26/03 (reference for a preliminary ruling from
the Oberlandesgericht Naumburg): Stadt Halle, RPL Recy-
clingpark Lochau GmbH v Arbeitsgemeinschaft Ther-
mische Restabfall- und Energieverwertungsanlage TREA
Leuna (1)

(Directive 92/50/EEC — Public service contracts — Award
with no public call for tenders — Award of the contract to a
semi-public undertaking — Judicial protection — Directive
89/665/EEC)

alleged infringement, from the time when the contracting authority
has expressed its will
in a manner capable of producing legal
effects. The Member States are not therefore authorised to make
the possibility of review subject to the fact that the public procure-
ment procedure in question has formally reached a particular
stage.

2. Where a contracting authority intends to conclude a contract for
pecuniary interest relating to services within the material scope of
Directive 92/50, as amended by Directive 97/52, with a
company legally distinct from it, in whose capital it has a holding
together with one or more private undertakings, the public award
procedures laid down by that directive must always be applied.

(1) OJ C 101 of 26.04.2003.

(2005/C 57/10)

JUDGMENT OF THE COURT

(Language of the case: German)

(Sixth Chamber)

of 13 January 2005

In Case C-26/03: reference for a preliminary ruling under
Article 234 EC from the Oberlandesgericht Naumburg (Higher
Regional Court, Naumburg, Germany), made by decision of 8
January 2003, received at the Court on 23 January 2003, in
the proceedings between Stadt Halle, RPL Recyclingpark
Lochau GmbH and Arbeitsgemeinschaft Thermische Restabfall-
und Energieverwertungsanlage TREA Leuna — the Court (First
Chamber), composed of P. Jann, President of the Chamber, J.N.
Cunha Rodrigues, E.
Ilešič and E.
Levits, Judges; C. Stix-Hackl, Advocate General; R. Grass, Regis-
trar, has given a judgment on 11 January 2005, in which it has
ruled:

Juhász (Rapporteur), M.

1. Article 1(1) of Council Directive 89/665/EEC of 21 December
1989 on the coordination of the laws, regulations and adminis-
trative provisions relating to the application of review procedures
to the award of public supply and public works contracts, as
amended by Council Directive 92/50/EEC of 18 June 1992
relating to the coordination of procedures for the award of public
service contracts,
itself amended by European Parliament and
Council Directive 97/52/EC of 13 October 1997, must be inter-
preted as meaning that the obligation of the Member States to
ensure that effective and rapid remedies are available against deci-
sions taken by contracting authorities extends also to decisions
taken outside a formal award procedure and decisions prior to a
formal call for tenders, in particular the decision on whether a par-
ticular contract falls within the personal and material scope of
Directive 92/50, as amended. That possibility of review is avail-
able to any person having or having had an interest in obtaining
the contract in question who has been or risks being harmed by an

in Case C-38/03: Commission of the European Commu-
nities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil its obligations — Article
28 EC — Measures having equivalent effect — Wheelchairs
— Admission to the reimbursement system under the social
security scheme)

(2005/C 57/11)

(Language of the case: French)

initially A. Snoecx,

In Case C-38/03: Commission of the European Commu-
nities (Agents: L. Ström and F. Simonetti) v Kingdom of
Belgium (Agent:
then E. Dominkovits)
supported by Kingdom of Spain (Agent: L. Fraguas Gadea) –
ACTION under Article 226 EC for failure to fulfil obligations,
brought on 3 February 2003 – the Court (Sixth Chamber),
composed of: A. Borg Barthet, President of Chamber, J.-P. Puis-
sochet and S. von Bahr
Judges; M. Poiares
Maduro, Advocate General; R. Grass, Registrar, gave a judg-
ment on 13 January 2005, in which it:

(Rapporteur),