Case C-194/03: Reference for a preliminary ruling by the Finanzgericht Hamburg by order of that Court of 29 April 2003 in the dispute between Dr Georg Friedrich Baur Jr., executor of the estate of Dr Georg Friedrich Baur Sr. and Hauptzollamt Kiel
Date: 2003-09-06
Institutions: Court of Justice
Subjects: agricultural quota, dairy production, interpretation of the law, marketing, means of agricultural production, milk product

6.9.2003

EN

Official Journal of the European Union

C 213/7

Advisory Committee on Procurement and Contracts (ACPC),
the favourable opinion of the ACPC, and the notice of contract
award published in the Official Journal.

Reference for a preliminary ruling by the Arbeitsgericht
Berlin by order of that Court of 30 April 2003 in the
proceedings between Imtraud Junk and Rechtsanwalt
Wolfgang Kühnel as the liquidator of the assets of AWO
Gemeinnützige Pflegegesellschaft Südwest mbH

By its second plea in law, the appellant submits that there is a
contradiction in the grounds of the judgment under appeal
inasmuch as the Court of First Instance formed the view that
the contract concluded between the Council and the successful
tenderer was the decision to award the contract (paragraph 44)
but examined the Council’s letter of 11 March 2000 to
determine that
the decision to award the contract was
adequately reasoned (paragraphs 56, 57 and 58). By way of
alternative submission, the appellant criticises the Court of
First Instance for having failed to ensure compliance with the
obligation to state reasons imposed by Article 253 EC in so
far as it took the view that the Council’s letter of 11 March
2000 was adequately reasoned, particularly having regard to
Article 8(1) of Directive 93/37.

By its third plea in law, the appellant contends that the Court
of First Instance breached Articles 18 and 30(1) and (2) of
Directive 93/37 and the contract documents and infringed the
principles of equality and transparency inasmuch as it formed
the view that the qualitative criteria have as their main function
to check that each tenderer has the competence and abilities
required to carry out the works and that the award criteria, in
particular the qualitative and quantitative criteria, carry a
different weight even though that does not follow from the
contract documents.

By its fourth plea in law, the appellant criticises the Court of
First Instance on the ground that it distorted the appellant’s
argument in forming the view that, in regard to the three
criteria in respect of which STRABAG’s tender was superior to
that of the successful tenderer, the appellant had placed in
question the Council’s assessment in its report to the ACPC,
whereas it in fact criticised the Council for having submitted
during the proceedings before the Court of First Instance
assessments which differed from those contained in that
report.

In support of its claim for compensation, the appellant argues
that, at the time when the contract was being awarded, the
Council acted unlawfully in such a way as to incur non-
contractual liability. This unlawful conduct formed the basis
of significant damage incurred by STRABAG, which forfeited
the profit which it hoped to secure from performing the
contract and whose commercial image and reputation have
suffered as a result. The appellant calculates its total damage
to be EUR 3 803 214, that is to say, 10 % of the turnover
which it might have hoped to achieve.

(Case C-118/03)

(2003/C 213/12)

Reference has been made to the Court of
Justice of the
European Communities by order of the Arbeitsgericht Berlin
(Labour Court, Berlin) of 30 April 2003, received at the Court
Registry on 7 May 2003, for a preliminary ruling in the
proceedings between Imtraud Junk and Rechtsanwalt Wolf-
gang Kühnel as the liquidator of the assets of AWO Gemeinnüt-
zige Pflegegesellschaft Südwest mbH on the following ques-
tions:

1.

2.

Is Council Directive 98/59/EC (1) of 20 July 1998 on the
approximation of the laws of the Member States relating
to collective redundancies to be interpreted to the effect
that ‘redundancy’ within the meaning of Article 1(1)(a)
thereof is to be construed as meaning the notice of
dismissal as the first act in terminating the contract of
employment or does ‘redundancy’ mean the termination
of the contract of employment upon expiry of the period
of notice?

If ‘redundancy’ is to be construed as meaning the notice
of dismissal, does the directive require that both the
consultation procedure under Article 2 of the directive
and the notification procedure under Articles 3 and 4
thereof must have been concluded before the notices of
dismissal are announced?

(1) OJ L 225 of 12.08.1998, p. 16.

Reference for a preliminary ruling by the Finanzgericht
Hamburg by order of that Court of 29 April 2003 in the
dispute between Dr Georg Friedrich Baur Jr., executor of
the estate of Dr Georg Friedrich Baur Sr. and Hauptzoll-
amt Kiel

(Case C-194/03)

(2003/C 213/13)

Reference has been made to the Court of
Justice of the
European Communities by order of the Finanzgericht Ham-
burg (Finance Court, Hamburg) of 29 April 2003, received at
the Court Registry on 12 May 2003, for a preliminary ruling

C 213/8

EN

Official Journal of the European Union

6.9.2003

in the dispute between Dr Georg Friedrich Baur Jr., executor of
the estate of Dr Georg Friedrich Baur Sr. and Hauptzollamt
Kiel on the following questions:

1.

Is Article 3a(1) (second indent) (b) of Council Regulation
(EEC) No 857/84 (1) of 31 March 1984 adopting general
the levy referred to in
rules for the application of
Article 5c of Regulation (EEC) No 804/68 (2)
in the
milk and milk products sector, as amended by Council
Regulation (EEC) No 1639/91 (3) of 13 June 1991, to be
construed as permitting a special reference quantity to be
allocated provisionally to a formerly non-marketing
holding which, as a result of its having switched in
the meantime to the production of other agricultural
products, was — at the time of its request for the
allocation — able to produce the reference quantity
requested only by means of production resources (feed-
crop areas, cows and other production resources)
additionally leased for that specific purpose?

2. On a proper construction of the second sentence of
the second subparagraph of Article 3a(4) of Council
Regulation (EEC) No 857/84 of 31 March 1984 adopting
general rules for the application of the levy referred to in
Article 5c of Regulation (EEC) No 804/68 in the milk and
milk products sector, as amended by Council Regulation
(EEC) No 1639/91 of 13 June 1991, was the special
reference quantity that had been definitively allocated
also to be returned to the national reserve where the
formerly non-marketing holding as defined in Question 1
had received and could deliver the special reference
quantity provisionally allocated to it only by means of
production resources (feed-crop areas, cows and other
production resources) additionally leased for that specific
purpose and where that holding had surrendered those
leased production resources to the lessor before 1 July
1994?

3.

If Question 2 is answered in the negative:

On a proper construction of the second subparagraph of
Article 3a(4) of Council Regulation (EEC) No 857/84 of
31 March 1984 adopting general rules for the application
of the levy referred to in Article 5c of Regulation (EEC)
No 804/68 in the milk and milk products sector, as
amended by Council Regulation (EEC) No 1639/91 of
13 June 1991, was the special reference quantity that had
been definitively allocated also to be returned to the
national reserve where the formerly non-marketing hold-
ing had definitively abandoned enjoyment of the pro-
duction resources required to deliver the special reference
quantity before 1 July 1994?

4.

If Question 3 is answered in the affirmative:

Is definitive abandonment for the purposes of Question 3
to be understood as meaning that the formerly non-
marketing holding had returned the leased production

resources required to deliver the special reference quantity
to the lessor before 1 July 1994, had ceased milk
production and only resumed such production four
months later, before 1 July 1994 at least, by means of
other production resources both of its own and taken on
lease?

(1) OJ L 90 of 01.04.1984, p. 13.
(2) English special edition...: Series-I 68(I) p. 176.
(3) OJ L 150 of 15.06.1991, p. 35.

Appeal brought on 12 May 2003 by the Commission of
the European Communities against the judgment deliver-
ed on 26 February 2003 by the Second Chamber of the
Court of First Instance of the European Communities in
Joined Cases T-344/00 and T-345/00 between CEVA Santé
animale SA and Pharmacia Entreprises SA, supported by
Fédération européenne de la santé animale (Fedesa), and
the Commission of the European Communities (1)

(Case C-198/03 P)

(2003/C 213/14)

An appeal against the judgment delivered on 26 February
2003 by the Second Chamber of the Court of First Instance of
the European Communities in Joined Cases T-344/00 and
T-345/00 between CEVA Santé animale SA and Pharmacia
Entreprises SA, supported by Fédération européenne de la
santé animale (Fedesa), and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 12 May 2003 by the Commission
of the European Communities, represented by T. Christoforou
and M. Shotter, acting as agents, with an address for service in
Luxembourg.

The Applicant claims that the Court should:

— set aside the judgment of the Court of First Instance
(Second Chamber) of 26 February 2003 in Joined Cases
T-344/00 and T-345/00 as regards the actions for
damages;

— rule on the substance of the applications for damages by

dismissing them entirely as unfounded;

— order the applicants to pay the Commission’s costs.