CELEX: C2003/112/34
Language: en
Date: 2003-05-10 00:00:00
Title: Case C-125/03: Action brought on 20 March 2003 by the Commission of the European Communities against the Federal Republic of Germany

C 112/20               EN                          Official Journal of the European Union                                        10.5.2003
Action brought on 20 March 2003 by the Commission of                       Action brought on 21 March 2003 by the Commission of
the European Communities against the Federal Republic                        the European Communities against Trendsoft (Irl) Ltd
                             of Germany
                          (Case C-125/03)                                                          (Case C-127/03)
                          (2003/C 112/34)                                                          (2003/C 112/35)
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 20 March 2003 by the Commission of the European                    An action against Trendsoft (Irl) Ltd was brought before the
Communities, represented by Klaus Wiedner, of its Legal                    Court of Justice of the European Communities on 21 March
Service, with an address for service in Luxembourg.                        2003 by the Commission of the European Communities,
                                                                           represented by L. Flynn and C. Giolito, acting as agents, with
                                                                           an address for service in Luxembourg.
The Commission claims that the Court should:
—     declare that, in so far as the refuse disposal contracts
      concluded by the town councils of Lüdinghausen and                   The Applicant claims that the Court should:
      Olfen and the district councils of Nordkirchen, Senden
      and Ascheberg were awarded without complying with                    —     condemn the defendant to pay the applicant the sum of
      the requirements concerning contract notices laid down                     24 751,57 Euros (twenty four thousand seven hundred
      in Article 8 in conjunction with Articles 15(2) and 16(1)                  and fifty one Euros and fifty seven cents), corresponding
      of Directive 92/50, ( 1) the Federal Republic of Germany                   to 21 303,00 Euros as the amount due and
      has failed to fulfil its obligations under that directive, and             3 448,57 Euros as late payment interest as of 31 March
                                                                                 2003, at a rate of 6,09 % until 31 December 2002 and a
—     order the Federal Republic of Germany to pay the costs.                    rate of 8,09 % thereafter;
                                                                           —     condemn the defendant to pay 4,72 Euros (four Euros
Pleas in law and main arguments                                                  and seventy two cents) per day by way of interest from
                                                                                 1 April 2003 until the date on which the debt is repaid
                                                                                 in full;
Although it has admitted the infringements complained of and
asserts its intention in future to invite tenders for refuse
disposal services in a manner consistent with Community law                —     condemn the defendant to pay the costs of the present
on the award of contracts, the defendant has taken no steps                      action.
to terminate the existing contracts which still have until
31 December 2003 to run.
The defendant does not even contend that termination of the                Pleas in law and main arguments
contracts is impossible under German law. It merely points
out that premature termination of the contracts could give rise
to claims for damages. On the contrary, it is conducive to the
effectiveness of Community law on the award of contracts if                In accordance with Article 16(3) of the financial Annex to the
contracting authorities can expect, if necessary, to have to               contract, the defendant undertook, in the event that the total
make payments of damages.                                                  financial contribution due for the project was less than the
                                                                           payments made for the project, to immediately reimburse the
                                                                           difference to the Commission.
Moreover, the obligation to remedy infringements of Com-
munity law on the award of contracts by also terminating
contracts already concluded cannot be called in question by
Article 2(6) of Directive 89/665, (2) which deals with the                 In its final consolidated cost statement of 23 September 1999
                                                                           the Commission indicated that it would not take certain
review of possible infringements of Community law on the
award of contracts. A Treaty infringement can be regarded as               claimed costs into account and explained why these were
                                                                           inadmissible. The defendant accepted the Commission’s pro-
ended only when the Member State has both acknowledged
                                                                           posed final consolidated cost statement by fax of 5 April 2000.
the unlawfulness of its conduct and completely remedied the
infringement.                                                              It does not dispute its obligation to reimburse the amounts
                                                                           unduly paid by the Commission but has failed to comply with
                                                                           that obligation and is, therefore, in breach of its obligation
( 1) OJ L 209 of 24.7.1992, p. 1.                                          arising under the contract.
( 2) OJ L 395 of 30.12.1989, p. 33.