Case C-201/01: Reference for a preliminary ruling, by the Oberste Gerichtshof, of 26 April 2001, in the Case of Maria Walcher against Bundesamt für Soziales und Behindertenwesen Steiermark
Date: 2001-07-28
Institutions: Court of Justice
Subjects: financial solvency, interpretation of the law, labour law, pay, protection of shareholders

C 212/12

EN

Official Journal of the European Communities

28.7.2001

Appeal brought on 14 May 2001 by IPK München GmbH
against the judgment delivered on 6 March 2001 by the
Third Chamber of the Court of First Instance of the
European Communities in Case T-331/94 between IPK
München GmbH and the Commission of the European
Communities

before the Court of First Instance, was concerned only
with the question whether the Commission could estab-
lish that the appellant was in a position to carry out the
project satisfactorily, despite the unlawful interventions
of DG XXIII officials. The Court of First Instance erred in
law by failing to recognise that.

(Case C-199/01 P)

(2001/C 212/19)

(1) Not yet published in the ECR.
(2) [1999] ECR I-6795.

An appeal against the judgment delivered on 6 March 2001
by the Third Chamber of the Court of First Instance of
the European Communities in Case T-331/94 between IPK
the European
München GmbH and the Commission of
Communities was brought before the Court of Justice of the
European Communities on 14 May 2001 by IPK München
GmbH, represented by H.J. Prieß, Rechtsanwalt.

The appellant claims that the Court should:

1.

Set aside the judgment of the Court of First Instance of
6 March 2001 in Case T-331/94 (1) in so far as it is
assumed from paragraph 34 of that judgment onwards
that points 6 to 12 of the European Commission’s letter
of 30 November 1993, to which the Decision of the
European Commission of 3 August 1994 refers, do not
belong to the grounds for the contested decision of
3 August 1994;

2. Order the Commission to pay the costs of the proceed-

ings.

Pleas in law and main arguments

— Misidentification of the object in dispute: Even for the
Court, the scope of the dispute is bindingly defined by
the application. The application sought the annulment of
the contested decision in its entirety without limitation.
The contested decision does not contain a limitation to
points 1 to 6 of the letter of 30 November 1993.
However, the Court of First Instance erroneously proceed-
ed on the basis that that letter could be divided into two
parts. Not even the Commission argued at any point that
points 6 to 12 of the letter did not form part of the
subject-matter of the dispute, and it became substantively
involved with the applicant’s argument concerning
points 6 to 12. The misidentification of the subject-
matter of the dispute by the Court of First Instance leads
to a reduction of the legal protection sought by the
applicant;

— Infringement of the duty to state reasons (Article 253

EC);

— Infringement of the binding authority of the judgment of
the Court of Justice in Case C-433/97 P (2), referring the
matter back to the Court of First Instance: In its judgment,
the Court of Justice, like the First Chamber of the Court
of First Instance before it, did not in any way limit the
subject-matter of the dispute. The reference back by the
Court of Justice, and thus the subsequent proceedings

Reference for a preliminary ruling, by the Oberste Ger-
ichtshof, of 26 April 2001, in the Case of Maria Walcher
against Bundesamt für Soziales und Behindertenwesen
Steiermark

(Case C-201/01)

(2001/C 212/20)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberste Gerichtshof
of 26 April 2001, received at the Court Registry on 15 May
2001, for a preliminary ruling in the case of Maria Walcher
against Bundesamt für Soziales und Behindertenwesen Steier-
mark on the following questions:

1.

Is it contrary to the objectives of Council Directive
80/987/EEC (1) of 20 October 1980 on the approxi-
mation of the laws of the Member States relating to the
protection of employees in the event of the insolvency of
their employer if, on account of the principles also applied
by the Austrian courts on loans made in substitution for
share capital, a shareholder who has no controlling
influence on the company loses his entitlement to an
insolvency guarantee payment where, in his capacity as
an employee of the company, he does not, after the onset
of creditunworthiness which was apparent to him, make
any serious demand for payment of current wages in
arrears for more than 60 days and/or does not resign
early on the ground that his wages are withheld?

2. Does this loss of entitlement extend to all unpaid claims
under the employment relationship or only to those
arisen after the fictitious point in time at which an
employee who was not a shareholder would, on the
ground that his wages were withheld, have handed in his
notice of resignation from the employment relationship?

(1) OJ 1980 L 283, p. 23.