Case C-118/03: 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
Date: 2003-09-06
Institutions: Court of Justice
Subjects: collective dismissal, interpretation of the law, termination of a contract, work contract, worker consultation

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