CELEX: C1996/180/25
Language: en
Date: 1996-06-22 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 25 April 1996 in Case C-87/94: Commission of the European Communities v. Kingdom of Belgium (Public contracts - Transport sector - Directive 90/531/EEC)

No C 180/ 12         EN                  Official Journal of the European Communities                                   22 . 6 . 96
              JUDGMENT OF THE COURT                                                 JUDGMENT OF THE COURT
                        ( Fifth Chamber)                                                       ( Sixth Chamber)
                      of 28 March 1996                                                        of 25 April 1996
 in Case C-318/94: Commission of the European                        in Case       C-274/93 : Commission of the European
      Communities v. Federal Republic of Germany ( ! )                     Communities v. Grand Duchy of Luxembourg ( ï )
 (Failure to fulfil obligations — Public works contracts —           (Failure by a Member State to fulfil obligations — Failure to
              Failure to publish a tender notice)                    implement Council Directive 86/609/EEC — Protection of
                          { 96/C 180/23 )                            animals used for experimental and other scientific
                                                                                                     purposes)
                                                                                                  ( 96/C 180/24 )
               (Language of tbe case: German)
                                                                                      (Language of the case: Frencb)
 (Provisional translation; the definitive translation will be        (Provisional translation; the definitive translation will be
         published in the European Court Reports)                             published in the European Court Reports)
                                                                     In Case C-274/93 : Commission of the European
In Case C-318/94 : Commission of the European                        Communities (Agent: Xavier Lewis ) v . Grand Duchy of
 Communities (Agents : Hendrik van Lier and, initially,              Luxembourg — application for a declaration that, by not
Angela Bardenhewer, and, subsequently, Claudia Schmidt)              adopting, within the prescribed period, all the measures
v. Federal Republic of Germany ( Agents : Ernst Roder and            necessary to comply with Council Directive 86/609/EEC of
Gereon Thiele ) — application for a declaration that, the            24 November 1986 on the approximation of laws,
Waterways and Navigation Office, Emden having awarded                regulations and administrative provisions of the Member
the public works contract for the dredging of the lower Ems          States relating to the protection of animals used for
between Papenburg and Oldersum by negotiated procedure               experimental and other scientific purposes, the Grand
without prior publication of a tender notice in the Official        Duchy of Luxembourg has failed to fulfil its obligations
                                                                     under Article 25 of that Directive and under Articles 5 and
Journal ofthe European Communities, the Federal Republic
of Germany has failed to fulfil its obligations under Council        189 of the EC Treaty — the Court ( Sixth Chamber ),
Directive 71 /305/EEC of 26 July 1971 concerning the                composed of C. N. Kakouris, President of the Chamber, G.
coordination of procedures for the award of public works            Hirsch ( Rapporteur ), F. A. Schockweiler, P. J. G. Kapteyn
contracts ( OJ, English Special Edition 1971 ( II ), p . 682 ), as  and J. L. Murray, Judges; F. G. Jacobs, Advocate-General ;
amended by Council Directive 89/440/EEC of 18 July 1989             H. von Holstein, Deputy Registrar, gave a judgment on
( OJ No L 210, 1989 , p. 1 ) — the Court ( Fifth Chamber ),         25 April 1996 , in which it:
composed of D. A. O. Edward ( President of the Chamber),
J. C. Moitinho de Almeida, P. Jann ( Rapporteur), L. Sevon           1 . Dismisses the application as inadmissible.
and M. Wathelet, Judges; M. B. Elmer, Advocate-General;
R. Grass, Registrar, has given a judgment on 28 March               2 . Orders the Grand Duchy of Luxembourg to pay the
                                                                          costs .
1996 , in which it:
                                                                    ( ] ) OJ No C 168 , 19 . 6 . 1993 .
1 . Declares that, the Waterways and Navigation Office,
    Emden having awarded the public works contract for
    the dredging of the lower Ems between Papenburg and
     Oldersum by negotiated procedure without prior
    publication of a tender notice in the Official Journal of                      JUDGMENT OF THE COURT
    the European Communities, the Federal Republic of                                         ( Fifth Chamber )
    Germany has failed to fulfil its obligations under
    Council Directive 71 /305/EEC of 26 July 1971                                            of 25 April 1996
    concerning the coordination of procedures for the               in     Case C-87/94: Commission of the European
    award of public works contracts, as amended by                               Communities v. Kingdom of Belgium ( J )
    Council Directive 89/440/EEC of 18 July 1989.
                                                                    (Public contracts — Transport sector — Directive
                                                                                                  90/531/EEC)
                                                                                                 ( 96/C 180/25 )
2 . Orders the Federal Republic of Germany to pay the
    costs .
                                                                                     (Language of the case: French)
(') OJ No C 380, 31 . 12 . 1994 .                                   (Provisional translation; the definitive translation will be
                                                                              published in the European Court Reports)
                                                                    In Case C-87/94, Commission of the European
                                                                    Communities ( Agent: Hendrik van Lier) v. Kingdom of
 ---pagebreak--- 22 . 6 . 96            EN                Official Journal of the European Communities                              No C 180/ 13
Belgium (Agent: Jan Devadder, assisted by Michel                                  JUDGMENT OF THE COURT
Waelbroeck and Denis Waelbroeck ) — application for a                                    of 30 April 1996
declaration that, by taking into account, in the procedure
for the award of a public contract by the Société régionale         in Case C-308/93 (reference for a preliminary ruling from
wallonne du transport, amendments made to one of the                the Centrale Raad van Beroep ): Bestuur van de Sociale
tenders after the opening of those tenders, by admitting to                Verzekeringsbank v. J. M. Cabanis-Issarte ( 1 )
the procedure for the award of the contract a tenderer who          (Social security for migrant workers — Voluntary old-age
did not meet the selection criteria laid down in the contract       insurance — Surviving spouse of a worker — Equal
documents and by accepting a tender which did not meet the                                    treatment)
criteria for the award of the contract laid down in the                                    ( 96/C 180/26 )
contract documents, the Kingdom of Belgium has failed to
fulfil its obligations under Council Directive 90/53 1 /EEC of
17 September 1990 on the procurement procedures of
entities operating in the water, energy, transport and
telecommunications sectors ( OJ No L 297, 1990, p. 1 ) and                         (Language of the case: Dutcb)
to comply with the principle of equal treatment, which
underlies all the rules on procedures for the award of public
contracts — the Court ( Fifth Chamber), composed of D. A.
O. Edward ( Rapporteur ), President of the Chamber, J. C.           (Provisional translation; the definitive translation will be
Moitinho de Almeida, C. Gulmann, P. Jann and L. Sevon ,                     published in the European Court Reports)
Judges; Advocate-General : C. O. Lenz; Registrar: H. A.
Riihl, Principal Administrator, gave a judgment on 25 April
1996, in which it:
                                                                    In Case C-308/93 : reference to the Court under Article 177
                                                                    of the EC Treaty from the Centrale Raad van Beroep for a
                                                                    preliminary ruling in the proceedings pending before that
1 . Declares that, by taking into account, in the procedure         court between Bestuur van de Sociale Verzekeringsbank and
     for the award of a public contract by the Société              J. M. Cabanis-Issarte on the interpretation of Articles 2 and
     régionale wallonne du transport, information on fuel           3 of Council Regulation ( EEC ) No 1408/71 of 14 June 1971
     consumption submitted by EMI in its supplementary              on the application of social security schemes to employed
     note of24 August 1 993 and, therefore, after the opening       persons, to self-employed persons and to members of their
     offenders, by awarding the contract to EMI on the basis        families moving within the Community, as amended and
     of figures which did not correspond to the prescriptive        updated by Council Regulation ( EEC ) No 2001 /83 of 2 June
     requirements of Annex 23 of the special conditions for         1983 ( OJ No L 230, 1983 , p. 6 ), the Court, composed of
     calculating the notional penalty ofEMI for maintenance         G. C. Rodriguez Iglesias, President, D. A. O. Edward, J. -P.
     costs in respect of engine and gearbox replacement, by         Puissochet and G. Hirsch, Presidents of Chambers ), G. F.
     taking into account, when comparing the tenders for            Mancini, F. A. Schockweiler, J. C. Moitinho de Almeida ,
     Lots Nos 4, 5 and 6, the cost-saving features suggested        P. J. G. Kapteyn, C. Gulmann, J. L. Murray, P. Jann, H.
     by EMI without having referred to them in the contract         Ragnemalm and M. Wathelet ( Rapporteur ), Judges; G.
     documents or in the tender notice, by using them to            Tesauro,    Advocate-General;     D.    Louterman-Hubeau,
     offset the financial differences between the tenders in        Principal Administrator, for the Registrar, has given a
     first place and those of EMI placed second, and by             judgment on 30 April 1996 in which it ruled :
     accepting some of EMI's tenders as a result of taking
     those features into account, the Kingdom ofBelgium has
     failed to fulfil its obligations under Council Directive
     90/531 /EEC of 17 September 1990 on the procurement            1 . Articles 2 and 3 of Council Regulation (EEC)
     procedures of entities operating in the water, energy,             No 1408/71 of 14 June 1971 on the application ofsocial
     transport and telecommunications sectors.                          security schemes to employed persons, to self-employed
                                                                        persons and to members of their families moving within
                                                                        the Community, as amended and updated by Council
                                                                        Regulation (EEC) No 2001 /83 of2 June 1983, are to be
                                                                        interpreted as meaning that they may be relied on by the
2 . Orders the Kingdom of Belgium to pay the costs.                     surviving spouse ofa migrant worker for the purpose of
                                                                        determining the rate of contribution in relation to a
                                                                        period of voluntary insurance completed under the
                                                                        old-age pension scheme of the Member State in which
P ) OJ No C 132 , 14 . 5 . 1994 .                                       the worker was employed.
                                                                    2 . This judgment may not be relied on in support of claims
                                                                        concerning benefits relating to periods prior to the date
                                                                        ofdelivery ofthe judgment, except by persons who have,