Commission of the European Communities v Federal Republic of Germany.
Date: 2003-04-10
1.  By applications lodged at the Court Registry on 16 and 21 January 2001 respectively, the Commission of the European Communities brought two actions under Article 226 EC for declarations that:
─  by failing to invite tenders for the award of the contract for the collection of waste water in the Municipality of Bockhorn (Germany) and to publish notice of the results of the procedure for the award of the contract in the Supplement to the   Official Journal of the European Communities  , the Federal Republic of Germany, at the time of the award of that public service contract, failed to fulfil its obligations under Article 8 in conjunction with Article 15(2) and Article 16(1) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1);
─  at the time of the award of a public service contract, the Federal Republic of Germany failed to fulfil its obligations under Article 8 and Article 11(3)(b) of Directive 92/50 by virtue of the fact that the City of Braunschweig (Germany) awarded a contract for waste disposal by negotiated procedure without prior publication of a contract notice, although the criteria laid down in Article 11(3) for an award by privately negotiated procedure without a Community-wide invitation to tender had not been met.
Legal context
2.  Article 8 of Directive 92/50 provides that:
"Contracts which have as their object services listed in Annex IA shall be awarded in accordance with the provisions of Titles III to VI."
12.  The City of Braunschweig, also in Lower Saxony, and Braunschweigsche Kohlebergwerke (hereinafter   "BKB"  ) concluded a contract under which BKB was made responsible for residual waste disposal by thermal processing for a period of 30 years from June/July 1999.
13.  The competent authorities of the City of Braunschweig took the view that Directive 92/50 applied but relied on Article 11(3) thereof to release them from their obligation to publish a contract notice, and awarded the contract by a negotiated procedure.
16.  By letter of 16 December 1998, the German Government admitted that the Braunschweig authorities had infringed Directive 92/50 by applying the negotiated procedure without publishing a contract notice when there were no grounds for doing so.
27.  In this case, the Commission considers that the effects of the alleged breach of obligations were not entirely exhausted in a procedural defect and that the breach is continuing.  First, general instructions to local authorities could not have resulted in cessation of the specific infringements.  Second, a Member State cannot, in order to avoid legal proceedings brought by the Commission, plead a   fait accompli   perpetrated by itself.
29.  It is settled case-law that in exercising its powers under Article 226 EC the Commission does not have to show that there is a specific interest in bringing an action.  The provision is not intended to protect the Commission's own rights. The Commission's function, in the general interest of the Community, is to ensure that the Member States give effect to the Treaty and the provisions adopted by the institutions thereunder and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (Case 167/73   Commission   v   France   [1974] ECR 359, paragraph 15; Case C-431/92   Commission   v   Germany   [1995] ECR I-2189, paragraph 21; and Case C-476/98   Commission   v   Germany   [2002] ECR I-9855, paragraph 38).
30.  Given its role as guardian of the Treaty, the Commission alone is therefore competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought. It may therefore ask the Court to find that, in not having achieved, in a specific case, the result intended by the directive, a Member State has failed to fulfil its obligations (Commission   v   Germany  , cited above, paragraph 22, and Case C-471/98   Commission   v   Belgium   [2002] ECR I-9861, paragraph 39).
32.  It is true that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (Case C-200/88   Commission   v   Greece   [1990] ECR I-4299, paragraph 13; Case C-362/90   Commission   v   Italy   [1992] ECR I-2353, paragraph 10; and Case C-29/01   Commission   v   Spain   [2002] ECR I-2503, paragraph 11).
33.  The Court did indeed find an action for failure to fulfil obligations in the sphere of public procurement inadmissible, but it was on the ground that all the effects of the contract notice at issue had been exhausted by the end of the period laid down in the reasoned opinion (Commission   v   Italy  , cited above, paragraphs 11 to 13).
34.  By contrast, the Court dismissed an objection of inadmissibility based on a claim that the alleged infringement had ceased in a situation in which the procedures for the award of contracts had been conducted entirely before the date on which the period laid down in the reasoned opinion expired, since the contracts had not been fully performed by that date (Case C-328/96   Commission   v   Austria   [1999] ECR I-7479, paragraphs 43 to 45).
35.  Furthermore, although Directive 92/50 contains essentially procedural rules, it was nevertheless adopted with a view to eliminating barriers to the freedom to provide services and therefore is intended to protect the interests of traders established in a Member State who wish to offer services to contracting authorities established in another Member State (see,   inter alia  , Case C-19/00   SIAC Construction   [2001] ECR I-7725, paragraph 32).
36.  Therefore the adverse effect on the freedom to provide services arising from the infringement of Directive 92/50 must be found to subsist throughout the entire performance of the contracts concluded in breach thereof.
39.  Although Article 2(6) permits the Member States to preserve the effects of contracts concluded in breach of directives relating to the award of public contracts and thus protects the legitimate interests of the parties thereto, its effect cannot be, unless the scope of the Treaty provisions establishing the internal market is to be reduced, that the contracting authority's conduct vis-à-vis third parties is to be regarded as in conformity with Community law following conclusion of such contracts.
41.  The Court has already held that it is responsible for determining whether or not the alleged breach of obligations exists, even if the State concerned no longer denies the breach and recognises that any individuals who have suffered damage because of it have a right to compensation (Case C-243/89   Commission   v   Denmark   [1993] ECR I-3353, paragraph 30).
42.  Since the finding of failure by a Member State to fulfil its obligations is not bound up with a finding as to the damage flowing therefrom (Case C-263/96   Commission   v   Belgium   [1997] ECR I-7453, paragraph 30), the Federal Republic of Germany may not rely on the fact that no third party has suffered damage in the case of the contracts concluded by the Municipality of Bockhorn and the City of Braunschweig.
58.  In that regard, it should be stated at the outset that the provisions of Article 11(3) of Directive 92/50, which authorise derogations from the rules intended to ensure the effectiveness of the rights conferred by the Treaty in relation to public service contracts, must be interpreted strictly and that the burden of proving the existence of exceptional circumstances justifying a derogation lies on the person seeking to rely on those circumstances (Case C-318/94   Commission   v   Germany   [1996] ECR  I-1949, paragraph 13).
60.  A contracting authority may take account of criteria relating to environmental protection at the various stages of a procedure for the award of public contracts (see, as regards the use of such criteria as criteria for awarding a contract relating to the management of the operation of a route in the urban bus network, Case C-513/99   Concordia Bus Finland   [2002] ECR I-7213, paragraph 57).
62.  However, the procedure used where there is a technical reason of that kind must comply with the fundamental principles of Community law, in particular the principle of non-discrimination as it follows from the provisions of the Treaty on the right of establishment and the freedom to provide services (see, to that effect,   Concordia Bus Finland  , paragraph 63).