Case C-17/09: Action brought on 14 January 2009 — Commission of the European Communities v Federal Republic of Germany
Date: 2009-01-14
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, remuneration of work, waste, waste management

C 69/26

EN

Official Journal of the European Union

21.3.2009

Form of order sought

Pleas in law and main arguments

to

— declare that by not taking all necessary legal and administra-
tive measures
Council Directive
comply with
2004/113/EC of 13 December 2004 implementing the prin-
ciple of equal treatment between men and women in the
access to and supply of goods and services, or in any event
by not communicating those measures to the Commis-
sion (1), the Czech Republic has failed to fulfil its obligations
under Article 17 of that directive;

— order the Czech Republic to pay the costs.

Pleas in law and main arguments

The prescribed period for the transposition of the directive into
domestic law expired on 21 December 2007.

(1) OJ L 373, p. 37.

Action brought on 14 January 2009 — Commission of the
European Communities v Federal Republic of Germany

(Case C-17/09)

(2009/C 69/48)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and C. Zadra, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

its obligations under Article 8,

— declare that, the Federal Republic of Germany has failed to
fulfil
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), by reason of the fact
that the city of Bonn and the Müllverwertungsanlage Bonn
GmbH awarded a public service contract for the disposal of
bio-waste and green waste without carrying out an award
procedure including Europe-wide tendering;

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

The subject-matter of the present action is a service contract for
pecuniary interest for the disposal of bio-waste and green waste
between the City of Bonn and the Müllverwertungsanlage Bonn
GmbH (‘MVA GmbH’), on the one hand, and the private waste
disposal undertaking EVB Entsorgung und Verwertung Bonn
GmbH & Co. KG (‘EVB’) on the other hand. MVA GmbH is a
municipal company, 93.46 % of the capital of which is held by
Stadtwerke Bonn GmbH — a 100 % subsidiary of the City of
Bonn — and 6.54 % of the capital of which is held directly by
the City of Bonn.
In that contract EVB undertakes, first, to
procure, pre-sort and deliver household waste for disposal at the
waste treatment plant, Bonn, and, secondly, to dispose of bio-
waste and green waste from the urban area of Bonn in their
compost plants for a price of DM 6 million per annum.

Although the disposal contract in question is a public service
contract within the meaning of Article 1(a) of Directive
92/50/EEC,
it was concluded directly with EVB without the
carrying-out of a formal award procedure and Europe-wide
tendering. The contract also deals with the provision of refuse
disposal services for
the purposes of category No 16 of
Annex I A to that directive and thus significantly exceeds the
threshold value for the application of the directive.

the Federal Government, what
Contrary to the opinion of
matters is not whether the contract covers services other than
the composting services, which are provided by the City or
MVA GmbH on EVB's behalf. The crucial factor is, rather, that
the contract creates legally binding obligations on the part of
the provision of composting
EVB to the City in respect of
services for pecuniary interest. Furthermore, it cannot be main-
the composting services constitute a completely
tained that
insignificant ancillary aspect of
the contract because those
services are one of the central aspects of the concept negotiated
by the parties and constitute a significant economic part of the
mutually agreed volume of services.

In addition, the Commission cannot agree with the Federal
Government's argument that the City of Bonn was entitled, on
the basis of Article 11(3)(b) of Directive 92/50/EEC, to award
the composting services by negotiated procedure without prior
publication of a contract notice. According to the case-law of
the Court that provision of the Directive must be interpreted
strictly and the burden of proving the existence of the excep-
tional circumstances justifying a derogation lies on the person
seeking to rely on those circumstances. Since the Federal
Government has not produced detailed evidence to prove that
EVB had an exclusive right to provide the disputed composting
services and what the legal basis for such a right is, it cannot be
assumed that there are circumstances justifying the derogation
in Article 11(3)(b) of Directive 92/50/EEC.

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