Case C-275/08: Action brought on 24 June 2008 — Commission of the European Communities v Federal Republic of Germany
Date: 2008-06-24
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, award of contract, data processing, invitation to tender, public contract, restriction on competition, software

C 223/28

EN

Official Journal of the European Union

30.8.2008

Form of order sought

III

to VI of Directive 92/50/EEC (1) and,

— Declare that the Federal Republic of Germany has until,
31 January 2006, infringed Article 8 in conjunction with
Titles
since
1 February 2006, infringed Article 20 in conjunction with
Articles 23 to 55 of Directive 2004/18/EEC (2), because
local authorities and local authority undertakings with more
than 1 218 employees awarded public service contracts
concerning occupational pension schemes without a Euro-
pean call for tenders directly to the organisations and under-
takings mentioned in Paragraph 6 of the Tarifvertrag zur
Entgeltumwandlung für Arbeitnehmer/-innen im kommu-
nalen öffentlichen Dienst (TV-EUmw/VKA) (Collective agree-
ment on the conversion of earnings into pension contribu-
tions for local authority employees);

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

In Germany, employees have the right to demand that part of
their future earnings — up to 4 % of the relevant contribution
assessment ceiling for the statutory pension fund — are paid
into their occupational pension schemes through the conversion
of earnings into pension contributions (Entgeltumwandlung).
According to the Tarifvertrag zur Entgeltumwandlung für
Arbeitnehmer/-innen im kommunalen öffentlichen Dienst
into
(Collective agreement on the conversion of earnings
pension contributions for local authority employees — ‘the
collective agreement’) the conversion of earnings into pension
contributions is the responsibility of local authorities or, as the
case may be,
local authority undertakings. The conversion of
to implemented
earnings
through public bodies offering supplementary private pensions
or, as the case may be, undertakings that are part of the Spar-
kassen finance group or local authority insurance companies
(Kommunalversicherer). As a general rule, local authorities or, as
the case may be, local authority undertakings enter into group
insurance contracts for all their employees, under which the
conversion of earnings into pension contributions is agreed
with one of the organisations mentioned above.

into pension contributions has

According to information available to the Commission,
local
authorities or, as the case may be, local authority undertakings
awarded those public service contracts relating to occupational
pension schemes directly to the organisations and undertakings
mentioned in the collective agreement, without first issuing a
European call for tenders.

Public services relating to occupational pension schemes fell
within the scope of Annex I A, category 6 of Directive
92/50/EC and, since 1 February 2006, have come under Annex
II Part A of Directive 2004/18/EC. They constitute insurance
and pension fund services that do not fall within the scope of
the service
the statutory social security system. Therefore,
contracts at issue, which were awarded by local authorities — in
other words,
contracting authorities — constitute public
contracts for pecuniary interest concluded in writing within the
meaning of
In addition,
according to the case-law, Article 1(a) of Directive 92/50/EC
does not make
a
contracting authority awards in the context of carrying out its
general interest functions and contracts that are not connected

a distinction between contracts

abovementioned directives.

that

the

to those functions. Therefore, the Court of Justice rejected the
idea that the nature of a contracting body can be determined by
its function. The objection raised by Germany that, as regards
occupational pension schemes, public authorities or, as the case
may be, local authority undertakings do not — for the purposes
of procurement law — carry out the functions of contracting
authorities, could not be upheld.

Further, the Commission takes the view that the contracts at
issue exceeded the relevant thresholds by a significant amount.
Contrary to the view taken by the defendant, that calculation
does not have to be done for every single contract. What
matters is the duration of the framework agreement since, for
the purposes of Community law on public procurement, the
public contract does not concern individual agreements between
the employee and the employer. Accordingly, the value of a
framework agreement to be taken into account is equivalent to
the estimated total value — net of value added tax — of all
contracts whose implementation is envisaged throughout the
entire duration of
the framework agreement. According to
calculations undertaken by the Commission, at least 110 cities
in the Federal Republic of Germany exceeded the threshold.

Local authorities and local authority undertakings should not
have awarded public service contracts relating to occupational
pensions schemes to organisations and undertakings mentioned
in the collective agreement, but rather after issuing a European
call for tenders. This finding is not affected by the fact that
continued payment of remuneration has been agreed under a
collective wage agreement. First, the case-law of the Court of
Justice clearly shows that Community law does not make
general provisions for collective bargaining autonomy and,
second, the Commission cannot see how, if contracting authori-
ties were to fulfil their obligation to put contracts out to public
tender,
the principle of
collective bargaining autonomy enshrined in the German Basic
Constitutional Law.

the application of

this would limit

(1) OJ 1992 L 209, p. 1.
(2) OJ 2004 L 134, p. 114.

Action brought on 24 June 2008 — Commission of the
European Communities v Federal Republic of Germany

(Case C-275/08)

(2008/C 223/44)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Wilms and D. Kukovec, acting as Agents)

Defendant: Federal Republic of Germany

30.8.2008

EN

Official Journal of the European Union

C 223/29

Form of order sought

its obligations under Article 6,

— declare that the Federal Republic of Germany has failed to
fulfil
in conjunction with
Article 9, of Council Directive 93/36/EEC of 14 June
1993 (1), by reason of the fact that the Datenzentrale Baden-
Württemberg (Central Data Office of Baden-Württemberg)
awarded a public contract for the transfer and maintenance
of a software application without implementing the award
procedures including Europe-wide tendering;

may be applied only in ‘cases which are set out in an exhaustive list’.
The burden of proof with respect to the exceptional circum-
stances lies with the Member State wishing to rely on them. As,
however, the defendant in the present case has not satisfied this
burden of proof, the Commission was forced to conclude that,
by concluding the contested contract without implementing the
award procedures including Europe-wide tendering, the Federal
Republic of Germany had breached Article 6,
in conjunction
with Article 9, of Directive 93/36/EEC coordinating procedures
for the award of public supply contracts.

— order the Federal Republic of Germany to pay the costs.

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

Pleas in law and main arguments

The object of the present action is the conclusion of a contract
for a software application designed for motor vehicle registra-
tion between the Datenzentrale Baden-Württemberg (Central
Data Office of Baden-Württemberg) and the Anstalt
für
Kommunale Datenverarbeitung in Bayern (Institute for local-
authority data-processing in Bavaria)
(AKDB). The contested
award decision was made by way of a negotiated procedure
without a contract notice,
in which negotiations took place
exclusively with the AKDB.

In the opinion of the Commission, the fact that the contract in
Germany had already been the object of a review procedure
within the meaning of Directive 89/665/EEC is not relevant for
the declaration of a failure to fulfil an obligation under the
Treaty. This is due to the fact that there are fundamental differ-
ences in nature between a review procedure before the national
courts
under
Article 226 EC, both with regard to the objective and to the
parties and the course of the proceedings.

Treaty-infringement

proceedings

and

The contested contract in the present case consists of a public
supply contract within the meaning of Article 1(a) of Directive
93/36/EEC. According to the Commission's findings, the value
of the contract amounts to approximately EUR 1 million, and
thus considerably exceeds the threshold in the directive. The
Central Data Office has legal personality under public law, and
was established with the particular purpose to coordinate and
promote electronic data-processing in public administration in
the interests of the general public. It is, moreover, under the
predominant control of the State of Baden-Württemberg, which
appoints more than half the members of the administrative
council.
therefore, a contracting authority within the
meaning of Article 1(b) of Directive 93/36/EEC, which is
obliged to comply with the procedures laid down therein when
awarding public contracts within the scope of that directive. The
fact that both the Central Data Office and the AKDB have legal
personality under public law is not relevant for the purposes of
the application of Directive 93/36/EEC.

is,

It

According to the Commission's findings, there are no apparent
facts that could justify an open market award of the contract,
such as in the form of a negotiated procedure without a prior
contract notice. According to the case-law of
the Court of
Justice, the negotiated procedure is exceptional in nature, and

Reference for a preliminary ruling from the Juzgado de lo
Social No 23 de Madrid (Spain) lodged on 26 June 2008 —
Francisco Vicente Pereda v Madrid Movilidad S.A.

(Case C-277/08)

(2008/C 223/45)

Language of the case: Spanish

Referring court

Juzgado de lo Social No 23 de Madrid

Parties to the main proceedings

Applicant: Francisco Vicente Pereda

Defendant: Madrid Movilidad S.A.

Question referred

Must Article 7(1) of Directive 2003/88/EC (1) be interpreted as
meaning that when the period of leave allocated in the underta-
king's annual planning of
leave coincides in time with a
temporary disability following an accident at work which
happened before that period of
the employee
affected, once he returns to work, has the right to use his leave
on dates different from those originally allocated, irrespective of
whether the calendar year to which they relate has ended?

leave began,

(1) Directive 2003/88/EC of

the
Council of 4 November 2003 concerning certain aspects of the orga-
nisation of working time (OJ 2003 L 299, p. 9).

the European Parliament and of