Case C-480/06: Action brought on 24 November 2006 — Commission of the European Communities v Federal Republic of Germany
Date: 2007-01-27
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, award of contract, services contract, waste disposal

C 20/10

EN

Official Journal of the European Union

27.1.2007

2.

If the Court holds that limitation of parallel trade, for the
reasons set out above, does not constitute an abusive prac-
tice in every case where it is engaged in by an undertaking
holding a dominant position, how is possible abuse to be
assessed? In particular:

2.1 Do the percentage by which normal domestic consumption
is exceeded and/or the loss suffered by an undertaking
holding a dominant position compared with its total turn-
over and total profits constitute appropriate criteria? If so,
how are the level of that percentage and the level of that
loss determined (the latter as a percentage of turnover and
total profits), above which the conduct in question may be
abusive?

2.2 Is an approach entailing the balancing of interests appro-
priate, and, if so, what are the interests to be compared? In
particular:

(a) is the answer affected by the fact that the ultimate
consumer/patient derives limited financial advantage
from the parallel trade and

(b) is account to be taken, and to what extent, of the inter-
insurance bodies in cheaper medicinal

ests of social
products?

2.3 What other criteria and approaches are considered appro-

priate in the present case?

Action brought on 24 November 2006 — Commission of
the European Communities v Federal Republic of Germany

(Case C-480/06)

(2007/C 20/14)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: X. Lewis and B. Schima, Agents)

Defendant: Federal Republic of Germany

Form of order sought

— A declaration that the Federal Republic of Germany has
failed to fulfil its obligations under Article 8 in conjunction
with Titles III to VI of Council Directive 92/50/EEC of 18

June 1992 relating to the coordination of procedures for the
award of public service contracts (1), in that the Landkreise
Rotenburg (Wümme), Harburg, Soltau-Fallingbostel and
Stade concluded a waste disposal services contract with
Stadtreinigung Hamburg directly and did not make that
to a Community-wide open or
service contract subject
restricted tender procedure;

— An order that the Federal Republic of Germany pay the

costs of the proceedings.

Pleas in law and main arguments

On 18 December 1995 four local counties (Landkreise)
in
Lower Saxony concluded a waste disposal services contract with
Stadtreinigung Hamburg (Hamburg city cleaning authority), a
body governed by a public law. That contract was concluded
without carrying out an award procedure and without a Com-
munity-wide call for tenders.

The Landkreise are contracting authorities and the contract at
issue is a service contract for pecuniary interest concluded in
writing which exceeds the relevant threshold for the application
of Directive 92/50/EEC and thus falls within the scope of that
directive.

The fact that Stadtreinigung Hamburg as a body governed by
public law is itself a contracting authority within the meaning
of Directive 92/50/EEC does not alter the fact that the contract
in dispute falls within the scope of that directive: as the Court
of Justice has expressly declared, the directives on procurement
law are always applicable if a contracting authority intends to
conclude a contract for pecuniary interest in writing with a
body which is distinct, in form, from itself and which has the
power to make decisions independently of that authority.

There are no facts apparent which justify a private award of the
contract at issue in the form of a negotiated procedure without
a prior contract notice.

The Commission also does not agree with the view of
the
Federal Government that cooperation between local authorities
as a product of municipal autonomy is not subject to procure-
ment law, regardless of the legal form which it may take. Muni-
cipal autonomy cannot lead to a situation where local authori-
ties are permitted to disregard the provisions on public awards
of contracts. In so far as those local authorities were to conclude
contracts on the provision of services with other bodies, even if
those bodies were also contracting authorities themselves, they
would be subject to procurement law. The German Government
was also not able to prove that the service contract at issue
could only be granted to a specific service provider for technical
reasons.

27.1.2007

EN

Official Journal of the European Union

C 20/11

For those reasons the Commission comes to the conclusion that
the Federal Republic of Germany infringed Directive 92/50/EEC
by directly concluding a waste disposal services contract without
carrying out an award procedure and without a Community-
wide call for tenders.

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden lodged on 27 November 2006 — Fiscale
eenheid Koninklijke Ahold NV v Staatssecretaris van
Financiën

(1) OJ 1992 L 209, p. 1.

(Case C-484/06)

(2007/C 20/16)

Language of the case: Dutch

Action brought on 24 November 2006 — Commission of
the European Communities v Italian Republic

(Case C-483/06)

(2007/C 20/15)

Language of the case: Italian

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Parties

Applicant: Fiscale eenheid Koninklijke Ahold NV

Applicant: Commission of the European Communities (repre-
sented by: L. Pignataro, Agent)

Defendant: Staatssecretaris van Financiën

Defendant: Italian Republic

Form of order sought

— Declare that the Italian Republic has failed to fulfil its obliga-
tions under Article 5(1) of Directive 2003/33/EC (1) by
exempting from the prohibition on sponsorship events, or
related activities, where these take place exclusively within
the Italian State;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The effect of the Italian legislation is to introduce a derogation
from the prohibition on sponsorship laid down in Article 5(1)
of Directive 2003/33/EC which is not provided for by that
directive.

(1) OJ L 152, p. 16.

Questions referred

1. Is the rounding-off of VAT amounts governed solely by
national
the first and
law, or — particularly in view of
second paragraphs of Article 2 of the First Directive (1) and
Article 11 A(1)(a) of the Sixth Directive and Article 22(3)(b),
first sentence, (version as at 1 January 2004) and (5) of the
Sixth Directive (2) — is it a matter for Community law?

2. If the latter is the case, does it follow from the aforemen-
tioned provisions of the Directives that the Member States
are required to permit rounding-down per article, even if
different transactions are included in one invoice and/or one
tax return?

(1) First Council Directive of 11 April 1967 on the harmonisation of
legislation of Member States concerning turnover taxes (OJ, English
Special Edition 1967, p. 14).

(2) Sixth Council Directive of 17 May 1977 on the harmonisation of
taxes —
the laws of
Common system of value added tax: uniform basis of assessment (OJ
1977 L 145, p. 1).

the Member States relating to turnover