Case C-536/07: Action brought on 30 November 2007 — Commission of the European Communities v Federal Republic of Germany
Date: 2007-11-30
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, award of contract, building industry, public contract, works contract

23.2.2008

EN

Official Journal of the European Union

C 51/33

Austria in terms of numbers and size as special protec-
tion areas under Article 4(1) and (2) of Council Directive
79/409/EEC of 2 April 1979 on the conservation of
wild birds, (1) and

(b) to provide legal protection,

in accordance with the
requirements of Article 4(1) and (2) of Directive
79/409/EEC or Article 6(2) in conjunction with Article 7
of Council Directive 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna and
flora, (2) for part of the special protection areas already
designated,

the Republic of Austria has failed to fulfil
its obligations
under Article 4(1) and (2) of Directive 79/409/EEC and
Article 6(2)
in conjunction with Article 7 of Directive
92/43/EEC;

— order Republic of Austria to pay the costs.

Pleas in law and main arguments

Article 4(1) and (2) of Council Directive 79/409/EEC (bird
protection directive) requires the Member States to declare as
special protection areas (SPAs) all those areas which are the
most suitable territories in number and size for the conservation
of the species listed in Annex I and to take similar measures for
the conservation of regularly occurring migratory species not
listed in Annex I to the Directive. An SPA is to be given a legal
protection status that is appropriate,
inter alia, to secure the
survival and reproduction of the species listed in Annex I to the
Directive and the breeding, moulting and wintering of regularly
occurring migratory species not listed in Annex I to the Direc-
tive. Since, under Article 7 of Council Directive 92/43/EEC of
21 May 1992 on the conservation of natural habitats and of
wild fauna and flora (fauna and flora directive), obligations
arising, inter alia, under Article 6(2) of that directive in respect
of special areas of conservation are to replace the obligations
under the first sentence of Article 4(1) of the bird protection
directive, the legal protection status of those areas must also
ensure that there is no deterioration of the natural habitats of
the species for which the areas have been designated and no
significant disturbance of those species.

The Republic of Austria has infringed its obligations under
those Community law provisions by failing to designate the
‘Hansag’ area as an SPA, delimit
the ‘Niedere Tauern’ special
protection area in accordance with the requirements of the bird
protection directive, and provide part of the existing special
protection areas with the legal protection required by the above
provisions.

Although the Republic of Austria has recognised the need to
designate ‘Hansag’ as an SPA and has, on several occasions,
confirmed its intention to do so, it has not complied with its
designation obligation within the period laid down in the
reasoned opinion.

failure to have sufficient regard to the necessary habitat of the
dotterel and the inadequate inclusion of the established habitats
of certain woodland bird species, namely the grey-headed wood-
pecker (picus canus) and the hazel hen (Bonasa bonasia). Although
the Member States enjoy some latitude in the selection and deli-
mitation of SPAs, it is limited by the requirement that the deli-
mitation of those areas must comply with particular ornitholo-
gical criteria laid down in the Directive.
In particular, when
selecting and delimiting an SPA, a Member State is not entitled
to take into account the economic requirements referred to in
Article 2 of the bird protection directive or Article 6(4) of the
fauna and flora directive.

As regards the legal protection status of the protection areas
already designated in Austria, special conservation measures are
necessary for each bird fauna designated in an area that satisfies
the criteria for designation as an SPA, and it is also necessary to
establish with precision the necessary conservation measures
and adapt
them to the specific features and environmental
conditions of the BSG and the species living there. The specific
conservation aims contained in the legal protection instruments
for the purposes of Article 4(1) and (2) of the bird protection
directive and Article 6(2) of the fauna and flora directive for
each bird species in question,
together with the necessary
concrete measures and conditions (prohibitions and require-
ments) for the area should also be binding and given adequate
publicity. After an examination of the rules existing in the indi-
vidual provinces,
it has been found that the legal protection
status does not comply with the above requirements and thus
can not be regarded as adequate when measured against the
provisions of the bird protection directive and the fauna and
flora directive.

(1) OJ 1979 L 103, p. 1.
(2) OJ 1992 L 206, p. 7.

Action brought on 30 November 2007 — Commission of
the European Communities v Federal Republic of Germany

(Case C-536/07)

(2008/C 51/56)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: D. Kukovec and R. Sauer, Agents)

The failure to delimit the ‘Niedere Tauern’ area in accordance with
the requirements of the bird protection directive relates to the

Defendant: Federal Republic of Germany

C 51/34

EN

Official Journal of the European Union

23.2.2008

Form of order sought

— The Federal Republic of Germany has infringed its obliga-
tions under Article 7 in conjunction with Article 11 of
Council Directive 93/37/EEC of 14 June 1993 concerning
the coordination of procedures for the award of public
works contracts (1), as a result of the conclusion by the city
of Cologne of the contract of 6 August 2004 with the
Grundstücksgesellschaft Köln Messe 15-18 GbR (in the
meantime Grundstücksgesellschaft Köln Messe
8-11)
without carrying out a procedure for the award of contracts
involving a Europe-wide invitation to tender in compliance
with the above-mentioned provisions;

— The Federal Republic of Germany is to pay the costs.

Pleas in law and main arguments

In that regard,

Article 7 of Council Directive 93/37/EEC of 14 June 1993
concerning the coordination of procedures for the award of
public works contracts (‘the Directive’) obliged the contracting
authorities when awarding public works contracts to observe
the negotiated procedure
certain procedures.
applies only in exceptional cases and only subject
to very
specific conditions, whereas the open or restricted procedure
applies as a rule. In order to ensure development of effective
it is moreover
competition in the field of public contracts,
necessary that
rule
a
throughout the Community. Article 11 of the Directive contains
the relevant advertising rules.

contract notices be

advertised as

the required procedure being observed,

The action concerns the award of a public works contract by
the city of Cologne to a private investment firm which took
in
place without
particular without publication of a notice. The aim of the award
of the contract was the building of four new exhibition halls for
use by Kölnmesse GmbH, a private company, the majority of
whose shares are held by the city of Cologne. Under the
firm is to
contested public works contract,
construct
the new exhibition halls and additional premises
according to detailed specifications. The city rented the buildings
for a fixed period of thirty years for a total rent of more than
EUR 600 million. Under a subtenancy it will in turn sublet the
buildings to the trade fair company KölnMesse GmbH.

the investment

In the view of the Commission, the contract concerned is a
public works contract, which according to the Directive should
have been awarded in a competitive procedure, in the context of
a Europe-wide invitation to tender. First, the city of Cologne as
local authority is the contracting authority within the meaning
of the Directive. It is therefore bound to observe the procedural
rules laid down in the Directive in relation to the contracts
which fall within the scope of
the
Commission is of the view that, despite its designation as ‘lease’

the Directive. Second,

and the apparent precedence of the provision for a right of use
(against payment), the contract is for the following reasons to
be designated as a public works contract
in the sense of
Article 1(a) of the Directive.

The Community law definition of a public works contract also
applies to contracts which aim to obtain the possibility of using
a building which does not yet exist but which was precisely
identified by the contracting authority in its specifications. As it
is clear from the case-law of the Court that, where it contains
various elements, a contract will be classified in accordance with
its main purpose, the description of the contract at issue as a
‘lease’ and even any classification as such under German law is
irrelevant for assessment pursuant to the Directive.

With regard to the contract at issue, the economic context and
the circumstances in which the contract was concluded indicate
that the first concern of the parties when concluding the prin-
cipal contract was the construction of
the exhibition halls
according to the detailed specifications laid down by the city of
Cologne. The focus of the contract is the financing of building
work, with the consideration being extended over time. From an
economic point of view, the contract leads to the same result as
the award of a contract to carry out building works.

It is also irrelevant with regard to the provisions of the Directive
whether the contracting authority will own the building to be
constructed or not, or whether it wishes itself
to use the
building or whether it is considering making it available to the
public or to certain third parties.

The right of use is in this case a simple consequence of the fact
that the building plot (and accordingly under German law neces-
sarily also the building to be constructed)
is owned by the
private builder. The circumstance that the future user of the
exhibition halls will be the Kölnmesse GmbH does not alter the
fact that the contracting partner of the investment firm is the
city of Cologne alone and that successful performance is also
owed to it alone.

As there are no indications in this case which would justify a
direct award of the contract without first publishing a notice,
the Commission must conclude that, as a result of the conclu-
sion by the city of Cologne as contracting authority of the
contract at issue without first publishing a notice, the Federal
Republic of Germany has infringed its obligations under the
Directive.

(1) OJ 1993 L 199, p. 54.