CELEX: C2003/289/04
Language: en
Date: 2003-11-29 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 16 October 2003 in Case C-252/01: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — Procedures for the award of public service contracts — Directive 92/50/EEC — Renewal of a contract for surveillance of the Belgian coast by aerial photography)

29.11.2003              EN                           Official Journal of the European Union                                                 C 289/3
                 JUDGMENT OF THE COURT                                                         JUDGMENT OF THE COURT
                         (Sixth Chamber)                                                                (Sixth Chamber)
                       of 16 October 2003                                                             of 16 October 2003
in Case C-252/01: Commission of the European Communi-                        in Case C-421/01 (Reference for a preliminary ruling from
                 ties v Kingdom of Belgium (1)                               the Bundesvergabeamt): Traunfellner GmbH v Österre-
                                                                             ichische Autobahnen- und Schnellstraßen-Finanzierungs-
                                                                                                         AG (Asfinag) (1)
(Failure by a Member State to fulfil its obligations —
Procedures for the award of public service contracts —
Directive 92/50/EEC — Renewal of a contract for surveil-                     (Directive 93/37/EEC — Public works contracts — Concept
       lance of the Belgian coast by aerial photography)                     of a ‘variant’ — Conditions for consideration and assessment
                                                                                          for the purpose of awarding a contract)
                         (2003/C 289/04)
                                                                                                        (2003/C 289/05)
                    (Language of the case: Dutch)
                                                                                                 (Language of the case: German)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                            (Provisional translation; the definitive translation will be published
                                                                                                  in the European Court Reports)
In Case C-252/01, Commission of the European Communities
(Agent: H. van Lier, assisted by J. Stuyck) v Kingdom of                     In Case C-421/01: Reference to the Court under Article 234
Belgium (Agent: A. Snoecx): Application for a declaration that:              EC by the Bundesvergabeamt (Austria) for a preliminary ruling
                                                                             in the proceedings pending before that tribunal between
—    by failing, in respect of a contract to perform services                Traunfellner GmbH and Österreichische Autobahnen- und
     involving coastal surveillance by means of aerial pho-                  Schnellstraßen-Finanzierungs-AG (Asfinag) on the interpret-
     tography, to place a notice in the Official Journal of the              ation of Council Directive 93/37/EEC of 14 June 1993
     European Communities, as required under Directive 92/                   concerning the coordination of procedures for the award of
     50/EEC relating to the coordination of procedures for the               public works contracts (OJ 1993 L 199, p. 54), the Court
     award of public service contracts (OJ 1992 L 209, p. 1);                (Sixth Chamber), composed of: J.-P. Puissochet, President of
     and                                                                     the Chamber, R. Schintgen, V. Skouris (Rapporteur), F. Macken
                                                                             and J.N. Cunha Rodrigues, Judges; S. Alber, Advocate General;
                                                                             M.F. Contet, Principal Administrator, for the Registrar, has
—    by making use, without justification, of the negotiated                 given a judgment on 16 October 2003, in which it has ruled:
     procedure without prior publication of a contract notice,
the Kingdom of Belgium has failed to fulfil its obligations                  1.    Article 19 of Council Directive 93/37/EEC of 14 June 1993
under that directive and, in particular, Articles 11(3) and                        concerning the coordination of procedures for the award of
15(2), thereof, the Court (Sixth Chamber), composed of: J.-                        public works contracts is to be interpreted as meaning that the
P. Puissochet, President of the Chamber, R. Schintgen, V. Skou-                    obligation to set out the minimum specifications required by a
ris, N. Colneric, and J.N. Cunha Rodrigues (Rapporteur),                           contracting authority in order to take variants into consideration
Judges; S. Alber, Advocate General; L. Hewlett, Principal                          is not satisfied where the contract documents merely refer to a
Administrator, for the Registrar, has given a judgment on                          provision of national legislation requiring an alternative tender
16 October 2003, in which it:                                                      to ensure the performance of work which is qualitatively
                                                                                   equivalent to that for which tenders are invited.
1.   Dismisses the application;                                              2.    Article 30 of Directive 93/37 can apply only to variants which
                                                                                   have been properly taken into consideration by the contracting
2.   Orders the parties to bear their own costs.                                   authority in accordance with Article 19 of that directive.
(1) OJ C 245 of 1.9.2001.                                                    (1) OJ C 3 of 5.1.2002.