CELEX: C2004/059/12
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-527/03: Action brought on 15 December 2003 by the Commission of the European Communities against the Kingdom of the Netherlands

6.3.2004                  EN                       Official Journal of the European Union                                            C 59/7
The applicant claims that the Court should:                                State Forest Department of two-way radio equipment for
                                                                           communication with firefighting aircraft and for the acqui-
—      Declare that, by adopting Article 1, second subparagraph            sition and/or implementation, again on behalf of that Depart-
       and first, second and third subparagraphs of Article 2 of           ment, of air services for fighting forest fires, in the last case
       Order No 3231 of the President of the Council of                    providing, in terms similar to the provision in respect of the
       Ministers of 24 July 2002, which allow for private                  acquisition of firefighting aircraft, that the relevant contracts
       negotiations by way of derogation from the provisions of            may also be entered into in derogation from the legislation
       the Community directives on public supply and service               transposing the Community directives on public contracts
       contracts, and in particular, from the common rules on              and, in particular, Directives 92/50/EEC and 93/36/EEC.
       advertising and participation laid down by Titles III and
       IV of Directive 93/36/EEC (1) and III and V of Directive
       92/50/EEC (2), for the acquisition of aircraft to combat            The Commission further considers that, in those cases,
       forest fires and for the acquisition of firefighting services       recourse cannot be had to private negotiations and that, in any
       and which similarly allow for such negotiations for the             case, no evidence of the existence of the conditions required
       acquisition of technical and computer equipment and                 for recourse to such negotiations was provided by the Italian
       two-way radios, without any of the lawful conditions for            authorities. In particular, none of the conditions under
       derogation from those common rules being satisfied and,             Article 6(2) and (3) of Directive 93/36/EEC and Article 11(2)
       in any event, without ensuring any form of direct                   and (3) of Directive 92/50/EEC is satisfied.
       advertising such as to permit a competitive comparison
       between potential tenderers, the Italian Republic has
       failed to fulfil its obligations under Council Directive 93/
       36/EEC of 18 June 1992 and Articles 43 and 49 of the                (1) OJ L 199 of 9.8.1993, p. 1.
       EC Treaty;                                                          (2) OJ L 209 of 24.7.1992, p. 1.
—      Order the Italian Republic to pay the costs.
Pleas in law and main arguments
Contracts for the supply of aircraft fall within the scope of              Action brought on 15 December 2003 by the Commission
Directive 93/36/EEC which governs the award procedure for                  of the European Communities against the Kingdom of the
public supply contracts.                                                                                Netherlands
Pursuant to Article 6 of the directive, the contracting auth-                                        (Case C-527/03)
orities are to award supply contracts by the open or restricted
procedures. Recourse to the negotiated procedure is permitted
only in the cases expressly provided for in paragraphs 2 and 3                                        (2004/C 59/12)
of that article. Article 6(3) includes, amongst the cases in
which the negotiated procedure is permitted, that where,
for reasons of extreme urgency brought about by events
unforeseeable by the contracting authorities, and for which
those authorities are not responsible, the time limits laid down           An action against the Kingdom of the Netherlands was brought
for the competitive procedures with prior publication cannot               before the Court of Justice of the European Communities on
be observed.                                                               15 December 2003 by the Commission of the European
                                                                           Communities, represented by K. Simonsson and W. Wils,
                                                                           acting as Agents.
The Commission points out that, in the present case, none of
the conditions laid down by Article 6 of Directive 93/36/EEC
for derogation from the provisions of that directive appears to
apply and that, in particular, there do not appear to be reasons           The applicant claims that the Court should:
of urgency such as to permit the contracting authority to avail
itself of the derogation under Article 6(3)(d) of the directive.           1.    declare that, by failing to adopt the laws, regulations
                                                                                 and administrative provisions necessary to comply with
                                                                                 Directive 2000/59/EC (1) of the European Parliament and
The Commission further points out that the contested order                       of the Council of 27 November 2000 on port reception
lays down numerous other possibilities for resorting to private                  facilities for ship-generated waste and cargo residues, or,
negotiations, namely for the acquisition of the material                         in any event, by failing to notify the Commission of those
necessary to equip the Department of Civil Protection with                       measures, the Kingdom of the Netherlands has failed to
technical and computer systems, for the acquisition by the                       fulfil its obligations under that directive;
 ---pagebreak--- C 59/8                   EN                        Official Journal of the European Union                                           6.3.2004
2.    order the Kingdom of the Netherlands to pay the costs.               Action brought on 18 December 2003 by the Commission
                                                                           of the European Communities against the Federal Repub-
                                                                                                     lic of Germany
Pleas in law and main arguments
                                                                                                    (Case C-531/03)
The period for implementation of the Directive expired on
28 December 2002.                                                                                    (2004/C 59/14)
(1) OJ 2000 L 332, p. 81.
                                                                           An action against the Federal Republic of Germany was
                                                                           brought before the Court of Justice of the European Communi-
                                                                           ties on 18 December 2003 by the Commission of the European
                                                                           Communities, represented by Josef Christian Schieferer, of the
                                                                           Legal Service of the Commission of the European Communi-
                                                                           ties, and Florence Simonetti, a national civil servant on
Action brought on 15 December 2003 by the Commission
                                                                           secondment to the Legal Service of the Commission, acting as
of the European Communities against the Kingdom of the
                                                                           Agents, with an address for service in Luxembourg.
                             Netherlands
                          (Case C-528/03)
                                                                           The applicant claims that the Court should:
                           (2004/C 59/13)
                                                                           1.    Declare that the Federal Republic of Germany has failed
                                                                                 to fulfil its obligations under Article 4, in conjunction
                                                                                 with point 7(b) and (c) of Annex I and point 10(e) of
An action against the Kingdom of the Netherlands was brought                     Annex II, of Council Directive 85/337/EEC (1)of 27 June
before the Court of Justice of the European Communities on                       1985 on the assessment of the effects of certain public
15 December 2003 by the Commission of the European                               and private projects on the environment, as amended by
Communities, represented by K. Simonsson and W. Wils,                            Council Directive 97/11/EC (2) of 3 March 1997,
acting as Agents.
                                                                                 —     in so far as that directive has, in particular, not yet
                                                                                       been transposed for purposes of road construction
The applicant claims that the Court should:                                            projects in the federal Land of Rhineland-Palatinate
                                                                                       and
1.    declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Commission Directive 2002/35/EC (1) of 25 April 2002                       —     in so far as it is possible for road construction
      concerning the setting up of a harmonised safety regime                          projects in the federal Land of North Rhine-
      for fishing vessels of 24 metres in length and over, or, in                      Westphalia to be granted development consent
      any event, by failing to notify the Commission of those                          without an environmental impact assessment being
      measures, the Kingdom of the Netherlands has failed to                           carried out;
      fulfil its obligations under that directive;
                                                                           2.    Order the Federal Republic of Germany to pay the costs
2.    order the Kingdom of the Netherlands to pay the costs.                     of the proceedings.
Pleas in law and main arguments
                                                                           Pleas in law and main arguments
The period for implementation of the Directive expired on
1 January 2003.
                                                                           The period for transposition of Directive 97/11/EC amending
(1) OJ 2002 L 112, p. 21.
                                                                           Directive 85/337/EEC expired on 14 March 1999 without the
                                                                           federal Land of Rhineland-Palatinate having adopted the
                                                                           necessary measures to implement it, in particular in relation to
                                                                           road construction projects.