Case C-271/08: Action brought on 24 June 2008 — Commission v Germany
Date: 2008-06-24
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, award of contract, contract, invitation to tender, local government, public contract, restriction on competition, supplementary pension

30.8.2008

EN

Official Journal of the European Union

C 223/27

2a. Assuming that national legislation governing gaming policy
is compatible with Article 49 EC,
is it for the national
courts to determine, on every occasion on which they
apply that legislation in practice in an actual case, whether
the measure to be imposed, such as an order that a particu-
lar website be made inaccessible to residents of the Member
State concerned by means of software designed for that
purpose, in order to prevent them from participating in the
games of chance offered thereon, in itself and as such satis-
fies the condition, in the specific circumstances of the case,
that it should actually serve the objectives which might
justify the national legislation in question, and whether the
restriction resulting from that legislation and its application
on the freedom to provide services is not disproportionate
in the light of those objectives?

2b. In answering Question 2a, does it make any difference if
the measure to be implemented is not ordered and imposed
in the context of the application of the national legislation
by the authorities, but in the context of a civil action in
which an organiser of games of chance operating with the
required licence requests imposition of the measure on the
ground that an unlawful act has been committed in its
inasmuch as the opposing party
regard under civil
contravened the national
legislation in question, thereby
gaining an unfair advantage over the party operating with
the required licence?

law,

3.

Should Article 49 EC be interpreted in such a way that the
application of that article results in the competent authority
of a Member State being unable, on the basis of the closed
licensing system that exists in that State for the provision of
gaming services, to prohibit a service provider which has
already been granted a licence in another Member State for
the online provision of such services from also offering
those services online in the first Member State?

Appeal brought on 24 June 2008 by Christos Michail
against the judgment of the Court of First Instance (First
Chamber) delivered on 16 April 2008 in Case T-486/04
Michail v Commission

Form of order sought

— Declaration that the appeal is admissible and well-founded;

— Annulment, as necessary, of the judgment of the Court of

First Instance of 16 April 2008 in Case T-486/04;

— Order as appropriate that costs be paid.

Pleas in law and main arguments

The appellant relies on three grounds in support of his appeal.

In his first ground of appeal, Mr Michail claims that the Court
of First Instance erred in the interpretation and application of
Community law and failed to comply with its duty to state
reasons in judgments, in that the Court acknowledged, in the
contested judgment, that the Commission was partly responsible
for the appellant feeling that he was subject to psychological
harassment, within the meaning of Article 12a of the Staff
Regulations, but nonetheless rejected his action as unfounded.

In his second ground of appeal, the appellant complains that
the facts
the Court of First
presented for its assessment, in particular by examining the facts
individually and not in their overall context, and that the Court
made several errors in the legal classification of those facts.

Instance distorted the sense of

In his third ground of appeal, the appellant lastly criticises the
decision of the Court of First Instance to reject as inadmissible,
for lack of precision, the numerous pleas in law on which he
relied in support of his action, alleging, inter alia, infringement
of Articles 21a, 22a and 22c of the Staff Regulations and of the
principles of equal treatment and proportionality. By breaking
down his action into several parts, the Court of First Instance
altered the essential nature of the action in its objectives and
structure.

(Case C-268/08 P)

(2008/C 223/42)

Language of the case: French

Action brought on 24 June 2008 — Commission v
Germany

(Case C-271/08)

(2008/C 223/43)

Language of the case: German

Parties

Parties

Appellant: Christos Michail (represented by: C Meidanis. lawyer)

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

Other party to the proceedings: Commission of
Communities

the European

Defendant: Federal Republic of Germany

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