Case C-277/08: 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.
Date: 2008-06-26
Institutions: Court of Justice
Subjects: incapacity for work, interpretation of the law, labour law, paid leave, rest period, social legislation

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