CELEX: C2001/369/06
Language: en
Date: 2001-12-22 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 25 October 2001 in Case C-493/99: Commission of the European Communities v Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 EC and 49 EC) — National legislation on the contracting out of labour in the construction industry — Exclusion of undertakings not party to a collective agreement for that industry and not having an establishment in the Member State in which services are to be provided — Proportionality)

C 369/4                  EN                       Official Journal of the European Communities                                        22.12.2001
      between those organisations, there is no breach of Article 90(1)       W.-D. Plessing and B. Muttelsee-Schön) — application for a
      of the Treaty, in conjunction with Article 85(1)(c) thereof (now       declaration that, by providing in its legislation that construc-
      Article 81(1)(c) EC);                                                  tion undertakings established in other Member States
—     a national provision such as Paragraph 18(3) of the Rettungs-
      dienstgesetz, as enacted on 22 April 1991, is contrary to
      Article 90(1) of the Treaty read in conjunction with Article 86        (a)   may not provide transfrontier services on the German
      thereof (now Article 82 EC), in so far as it is established that:            market as part of a consortium unless they have their seat
      —     the medical aid organisations such as those in question in             or at least an establishment in Germany employing their
            the main proceedings occupy a dominant position on the                 own staff and have concluded a company-wide collective
            market for emergency transport services,                               agreement for those staff;
      —     that dominant position exists on a substantial part of the
            common market, and
                                                                             (b) may not contract out workers from another country to
      —     there is a sufficient degree of probability, having regard to          other construction undertakings unless they have their
            the economic characteristics of the market in question, that           seat or at least an establishment in Germany employing
            the provision actually prevents undertakings established in            their own staff and, as members of a German employers’
            Member States other than the Member State in question                  association, are covered by framework and social-welfare
            from carrying out ambulance transport services there, or               collective agreements;
            even from establishing themselves there;
—     however, a provision such as Paragraph 18(3) of the Rettungs-
      dienstgesetz 1991 is justified under Article 90(2) of the Treaty
                                                                             (c)   may not establish in Germany a branch recognised as a
      provided that it does not bar the grant of an authorisation to
                                                                                   construction undertaking if its staff is entrusted solely
      independent operators where it is established that the medical
                                                                                   with work on administration, marketing, planning, super-
      aid organisations entrusted with the operation of the public
                                                                                   vision and/or wages and salaries, but, in order to be so
      emergency ambulance service are manifestly unable to satisfy
                                                                                   recognised, such an establishment must employ on the
      demand in the area of emergency ambulance and patient
                                                                                   German labour market workers who spend more than
      transport services.
                                                                                   50 % of the firm’s total working time on building sites,
(1) OJ C 63 of 4.3.2000.
                                                                             the Federal Republic of Germany has failed to fulfil its
                                                                             obligations under Articles 52 and 59 of the EC Treaty (now,
                                                                             after amendment, Articles 43 EC and 49 EC) — the Court
                  JUDGMENT OF THE COURT                                      (Fifth Chamber), composed of: P. Jann, President of the
                                                                             Chamber, D.A.O. Edward (Rapporteur), A. La Pergola, L. Sevón
                           (Fifth Chamber)                                   and C.W.A. Timmermans, Judges; D. Ruiz-Jarabo Colomer,
                                                                             Advocate General; R. Grass, Registrar, has given a judgment
                        of 25 October 2001                                   on 25 October 2001, in which it:
in Case C-493/99: Commission of the European Communi-
             ties v Federal Republic of Germany(1)
(Failure by a Member State to fulfil its obligations —                       1.    Declares that, by providing in its legislation that construction
Articles 52 and 59 of the EC Treaty (now, after amendment,                         undertakings established in other Member States
Articles 43 EC and 49 EC) — National legislation on the
contracting out of labour in the construction industry —
Exclusion of undertakings not party to a collective agreement
for that industry and not having an establishment in the                           (a)   may not provide transfrontier services on the German
Member State in which services are to be provided —                                      market as part of a consortium unless they have their seat
                            Proportionality)                                             or at least an establishment in Germany employing their
                                                                                         own staff and have concluded a company-wide collective
                           (2001/C 369/06)                                               agreement for those staff;
                    (Language of the case: German)
(Provisional translation; the definitive translation will be published             (b) may not contract out workers from another country to
                    in the European Court Reports)                                       other construction undertakings unless they have their seat
                                                                                         or at least an establishment in Germany employing their
                                                                                         own staff and, as members of a German employers’
In Case C-493/99: Commission of the European Communities                                 association, are covered by framework and social-welfare
(Agent: J. Sack) v Federal Republic of Germany (Agents:                                  collective agreements;
 ---pagebreak--- 22.12.2001              EN                        Official Journal of the European Communities                                            C 369/5
      (c)   may not establish in Germany a branch recognised as a            Article 29(1) and (2) of Council Directive 71/305/EEC of 26 July
            construction undertaking if its staff is entrusted solely with   1971 concerning the coordination of procedures for the award of
            work on administration, marketing, planning, supervision         public works contracts, as amended by Council Directive 89/440/EEC
            and/or wages and salaries, but in order to be so recognised,     of 18 July 1989, must be interpreted as permitting an adjudicating
            such an establishment must employ on the German labour           authority which has chosen to award a contract to the most
            market workers who spend more than 50 % of the firm’s            economically advantageous tender to award that contract to the
            total working time on building sites,                            tenderer who has submitted the tender the ultimate cost of which, in
                                                                             the professional opinion of an expert, is likely to be the lowest,
      the Federal Republic of Germany has failed to fulfil its               provided that the equal treatment of tenderers has been ensured,
      obligations under Articles 52 and 59 of the EC Treaty (now,            which presupposes that the transparency and objectivity of the
      after amendment, Articles 43 EC and 49 EC);                            procedure have been guaranteed and in particular that:
2.    Orders the Federal Republic of Germany to pay the costs.               —     this award criterion was clearly stated in the contract notice or
                                                                                   contract documents; and
(1) OJ C 63 of 4.3.2000.                                                     —     the professional opinion is based in all essential points on
                                                                                   objective factors regarded in good professional practice as
                                                                                   relevant and appropriate to the assessment made.
                                                                             (1) OJ C 102 of 8.4.2000.
                  JUDGMENT OF THE COURT
                          (Fifth Chamber)
                                                                                              JUDGMENT OF THE COURT
                       of 18 October 2001
                                                                                                     (Fourth Chamber)
in Case C-19/00 (reference for a preliminary ruling from
the Supreme Court of Ireland): SIAC Construction Ltd v
                                                                                                    of 11 October 2001
          County Council of the County of Mayo (1)
                                                                             in Case C-254/00: Commission of the European Communi-
(Public works contracts — Award to the most economically                                  ties v Kingdom of the Netherlands (1)
             advantageous tender — Award criteria)
                                                                             (Failure by a Member State to fulfil obligations — Failure to
                          (2001/C 369/07)                                    implement Directive 95/47/EC within the prescribed period
                                                                             — Use of standards for the transmission of television
                                                                                                           signals)
                    (Language of the case: English)
                                                                                                       (2001/C 369/08)
In Case C-19/00: reference to the Court under Article 234 EC                                     (Language of the case: Dutch)
from the Supreme Court of Ireland for a preliminary ruling in
the proceedings pending before that court between SIAC
Construction Ltd and County Council of the County of Mayo                    (Provisional translation; the definitive translation will be published
— on the interpretation of Article 29 of Council Directive                                      in the European Court Reports)
71/305/EEC of 26 July 1971 concerning the coordination of
procedures for the award of public works contracts (OJ,
English Special Edition 1971 (II), p. 682), as amended by
Council Directive 89/440/EEC of 18 July 1989 (OJ 1989                        In Case C-254/00: Commission of the European Communities
L 210, p. 1) — the Court (Fifth Chamber), composed of:                       (Agent: H. van Lier) v Kingdom of the Netherlands (Agents:
P. Jann (Rapporteur), President of the Chamber, A. La Pergola,               M.A Fierstra, and subsequently by J. van Bakel) — application
L. Sevón, M. Wathelet and C.W.A. Timmermans, Judges;                        for a declaration that by failing to bring into force or to
F.G. Jacobs, Advocate General; H.A. Rühl, Principal Adminis-                 communicate all of the laws, regulations and administrative
trator, for the Registrar, has given a judgment on 18 October                provisions necessary to comply with Directive 95/47/EC of
2001, in which it has ruled:                                                 the European Parliament and of the Council of 24 October