Case C-186/03 P: Appeal brought on 6 May 2003 by Strabag Benelux NV against the judgment delivered on 25 February 2003 by the Court of First Instance (Fifth Chamber) in Case T-183/00 Strabag Benelux NV v Council of the European Union
Date: 2003-09-06
Institutions: Court of Justice
Subjects: Belgium, Council of the European Union, action for annulment (EU), administrative procedure, public contract, works contract

C 213/6

EN

Official Journal of the European Union

6.9.2003

2)

If so: if the State waives its claim to the portion of the
fees due to it in respect of that legal transaction, thereby
ceasing to enforce the legal provision requiring a portion
of the fees to be remitted to the State, do the fees cease to
constitute a tax for the purposes of Directive 69/335?

Appeal brought on 6 May 2003 by Strabag Benelux NV
against the judgment delivered on 25 February 2003 by
the Court of First Instance (Fifth Chamber) in Case T-183/
00 Strabag Benelux NV v Council of the European Union

(Case C-186/03 P)

(2003/C 213/11)

An appeal has been brought before the Court of Justice of the
European Communities on 6 May 2003 by Strabag Benelux
NV, represented by A. Delvaux and V. Bertrand, with an
address for service in Luxembourg, against the judgment
delivered on 25 February 2003 by the Court of First Instance
in Case T-183/00 Strabag Benelux NV v
(Fifth Chamber)
Council of the European Union.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance
inasmuch as it dismissed the applications for annulment
and compensation on the ground that
they were
unfounded;

— uphold the forms of order sought by STRABAG in respect

of those applications and accordingly:

— annul the decision of 12 April 2000 by which the
Council awarded to the DE WAELE company the
refitting and general maintenance work contract
which was the subject of
invitation to tender
No 107865 published in the Official Journal of the
European Communities S 146 of 30 July 1999, and
by which the Council implicitly rejected the tender
submitted by STRABAG;

— order the Council of the European Union to pay to
STRABAG, subject
to any increase, the sum of
BEF 153 421 286 or EUR 3 803 214 together with
interest thereon at the rate of 6 % as from 12 April
2000;

— order the Council of the European Union to pay the costs.

Reference for a preliminary ruling by the Tribunale
Amministrativo per la Sardegna by order of that Court of
15 January 2003 and 12 February 2003 in the case of
Impresa Portuale di Cagliari s.r.l. against Tirrenia di
Navigazione SpA and C.T.O. Combined Terminals Oper-
ators s.r.l.

(Case C-174/03)

(2003/C 213/10)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministra-
tivo per la Sardegna (The Administrative Court for Sardinia) of
15 January 2003 and 12 February 2003, received at the Court
Registry on 14 April 2003, for a preliminary ruling in the
case of Impresa Portuale di Cagliari s.r.l. against Tirrenia di
Navigazione SpA and C.T.O. Combined Terminals Operators
s.r.l. on the following questions:

(a) whether, in accordance with the recitals in the preamble
to Directive 93/38 (1), a company in the maritime trans-
port sector, which in some cases operates under a de
facto monopoly and in others in circumstances of free
competition and which benefits from State aid is to be
regarded as always subject to the Directive 93/98,

and, in the event that such a company is subject to the
rules on public notice,

Pleas in law and main arguments

(b) whether

the ‘technical specifications’ mentioned in
Article 18 of Directive 93/38 (transposed by Article 19
of Legislative Decree No 158/95) must be established
prior to the procedure for selecting a contractor and
whether they are subject to any publicity requirements.

( 1) Council Directive 93/38/EEC of 14 June 1993 coordinating the
procurement procedures of entities operating in the water,
energy, transport and telecommunications sectors (OJ L 199 of
09.08.1993, p. 84).

In support of its application for annulment, the appellant puts
forward four pleas in law.

The first plea is divided into two limbs. The appellant first
criticises the Court of First Instance for failing properly to
construe the concepts of ‘contract’ and ‘decision’ in so far as it
took the view that the contract which the Council concluded
with the successful tenderer constituted the decision to award
the contract. Second, the appellant claims that the Court of
First Instance breached Article 8(3) of Directive 93/37/EEC
concerning the coordination of procedures for the award of
public works contracts in so far as the Court took the view
that the written report required under that provision could
consist of three documents, that is to say, the report to the

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