Commission of the European Communities v Federal Republic of Germany.
Date: 2009-10-29
23. In that regard, it must be noted that the Court has consistently held in relation to public contracts that an action for failure to fulfil obligations is inadmissible if, when the period prescribed in the reasoned opinion expired, the contract in question had already been completely performed (see, inter alia, Case C‑394/02 Commission  v Greece  [2005] ECR I‑4713, paragraph 18 and case-law cited, and Case C‑237/05 Commission  v Greece  [2007] ECR I‑8203, paragraph 29).
25. By the terms ‘contract in question’ or, adopting a slightly different formulation used in the case-law, ‘contract at issue’ (see, for example, Joined Cases C‑20/01 and C‑28/01 Commission  v Germany  [2003] ECR I‑3609, paragraph 33 and case-law cited), the Court is referring to the whole of the project at issue, viewed in its general context and by reference to its fundamental characteristics.
50. Also irrelevant is the fact that the works in question were intended to be used for the activities of KölnMesse, which ultimately has the right to use them in return for monthly payments (see, to that effect, Case C‑220/05 Auroux and Others  [2007] ECR I‑385, paragraphs 33, 35 and 42). It should, moreover, be noted in that context that it is apparent from the documents of 8 December 2003 and 14 July 2004 headed ‘letter of intent’ – which have not been contested by the Federal Republic of Germany – that the City of Cologne agreed to accept financial responsibility for the project at issue in the event that, after 2012, KölnMesse is not in a position to pay the rent.
54. In that regard, it must be borne in mind first of all that, according to the case-law of the Court, that legal classification falls under Community law and the classification given under national law is irrelevant for that purpose (see, to that effect, Auroux and Others , paragraph 40 and case-law cited). Likewise, the classification of a contract given by the contracting parties is not decisive either.
55. Next, it must be pointed out that the definition of ‘public works contract’ in Article 1(a) of Directive 93/37 includes all operations in which a contract for pecuniary interest, irrespective of its formal classification, is concluded between a contracting authority and a contractor and has as its object the execution by the latter of a ‘work’ within the meaning of Article 1(c) of the directive. The essential criterion in that respect is that the work should be executed in accordance with the requirements specified by the contracting authority; the means of that execution are immaterial.
56. As regards the object of the project at issue, it must be noted that the main contract, concluded on 6 August 2004 by the City of Cologne and GKM‑GbR, is formally described as a ‘lease’ and does, in fact, contain certain elements of a lease. However, as at 6 August 2004, the building works in question had not even started. Consequently, that contract could not have had as its immediate object the lease of buildings whose construction had not yet begun. Therefore, the main purpose of that contract could, logically, only be the construction of those buildings which were subsequently required to be handed over to the City of Cologne under the terms of a contractual relationship described as a ‘lease’.
57. According to the case-law of the Court, where a contract contains elements relating both to a public works contract and another type of public contract, it is the main purpose of the contract which determines the Community rules applicable.
59. Accordingly, it must be concluded that the main contract had as its main object the construction of the exhibition halls concerned in accordance with the requirements specified by the City of Cologne. Moreover, those halls constitute a ‘work’ within the meaning of Article 1(c) of Directive 93/37 in so far as they are sufficient of themselves to fulfil an economic function, and their value is far higher than the threshold laid down under Article 6 of that directive. In addition, that contract was concluded for pecuniary interest, since GKM‑GbR acted in this case as a contractor, irrespective of the fact that it arranged for execution of that work through sub-contracting (see, to that effect, Case C‑399/98 Ordine degli Architetti and Others  [2001] ECR I‑5409, paragraph 90), and the City of Cologne is a contracting authority. This contract must therefore be classified as a public works contract within the meaning of Article 1(a) of Directive 93/37.
61. In fact, the decisive element for the purposes of the classification of a public contract such as that at issue here is the main object of that contract, not the amount paid to the contractor or the arrangements for payment. In addition, a direct comparison of the two amounts referred to above, in absolute terms, is not possible because the approximate sum of EUR 600 million will be paid in a series of monthly instalments over a period of almost 30 years, whereas the sum of EUR 235 million corresponds to the value of the cost of the works on their completion at the end of 2005. In actual fact, the sum of EUR 600 million, at the values current when the works were completed, is very close to EUR 235 million. In any event, even if part of that sum of EUR 600 million were to represent the consideration for an element inherent in the letting, that part would necessarily be insignificant and cannot alter the classification of the contract concerned.