11.9.2010

Official Journal of the European Union

C 246/2

(Case C-271/08) (<span class="super">1</span>)

(Failure of a Member State to fulfil obligations - Directives 92/50/EEC and 2004/18/EC - Public service contracts - Occupational old-age pensions of local authority employees - Direct award of contracts, without a call for tenders at European Union level, to pension providers designated in a collective agreement concluded between management and labour)

2010/C 246/02

Language of the case: German

Parties

Applicant: European Commission (represented by: G. Wilms and D. Kukovec, acting as Agents)

Defendant: Federal Republic of Germany (represented by: M. Lumma and N. Graf Vitzthum, acting as Agents)

Interveners in support of the defendant: Kingdom of Denmark (represented by: B. Weis Fogh and C. Pilgaard Zinglersen, acting as Agents), Kingdom of Sweden (represented by: A. Falk and A. Engman, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 8, in conjunction with Titles III to VI, 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) and Article 20, in conjunction with Articles 23 to 55, of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Practice of local authorities and local authority undertakings of awarding contracts relating to collective pension schemes directly without open public procurement procedures

Operative part of the judgment

The Court:

1.Declares that, in so far as service contracts in respect of occupational old-age pensions were awarded directly, without a call for tenders at European Union level, to bodies or undertakings referred to in Paragraph 6 of the Collective agreement on the conversion, for local authority employees, of earnings into pension savings (Tarifvertrag zur Entgeltungwandlung für Arbeitnehmer im kommunalen öffentlichen Dienst), in 2004 by local authorities or local authority undertakings which then had more than 4 505 employees, in 2005 by local authorities or local authority undertakings which then had more than 3 133 employees and in 2006 and in 2007 by local authorities or local authority undertakings which then had more than 2 402 employees, the Federal Republic of Germany failed to fulfil its obligations, until 31 January 2006 under Article 8, in conjunction with Titles III to VI, of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts and from 1 February 2006 under Article 20, in conjunction with Articles 23 to 55, of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts;

2.Dismisses the action as to the remainder;

3.Orders the European Commission, the Federal Republic of Germany, the Kingdom of Denmark and the Kingdom of Sweden to bear their own costs.

(<span class="super">1</span>) OJ C 223, 30.8.2008.