CELEX: C2003/213/13
Language: en
Date: 2003-09-06 00:00:00
Title: 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

6.9.2003               EN                         Official Journal of the European Union                                         C 213/7
Advisory Committee on Procurement and Contracts (ACPC),                   Reference for a preliminary ruling by the Arbeitsgericht
the favourable opinion of the ACPC, and the notice of contract            Berlin by order of that Court of 30 April 2003 in the
award published in the Official Journal.                                  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                                   (Case C-118/03)
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                                      (2003/C 213/12)
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
                                                                          Reference has been made to the Court of Justice of the
adequately reasoned (paragraphs 56, 57 and 58). By way of
                                                                          European Communities by order of the Arbeitsgericht Berlin
alternative submission, the appellant criticises the Court of
                                                                          (Labour Court, Berlin) of 30 April 2003, received at the Court
First Instance for having failed to ensure compliance with the
                                                                          Registry on 7 May 2003, for a preliminary ruling in the
obligation to state reasons imposed by Article 253 EC in so
                                                                          proceedings between Imtraud Junk and Rechtsanwalt Wolf-
far as it took the view that the Council’s letter of 11 March
                                                                          gang Kühnel as the liquidator of the assets of AWO Gemeinnüt-
2000 was adequately reasoned, particularly having regard to
Article 8(1) of Directive 93/37.                                          zige Pflegegesellschaft Südwest mbH on the following ques-
                                                                          tions:
                                                                          1.    Is Council Directive 98/59/EC ( 1) of 20 July 1998 on the
                                                                                approximation of the laws of the Member States relating
By its third plea in law, the appellant contends that the Court                 to collective redundancies to be interpreted to the effect
of First Instance breached Articles 18 and 30(1) and (2) of                     that ‘redundancy’ within the meaning of Article 1(1)(a)
Directive 93/37 and the contract documents and infringed the                    thereof is to be construed as meaning the notice of
principles of equality and transparency inasmuch as it formed                   dismissal as the first act in terminating the contract of
the view that the qualitative criteria have as their main function              employment or does ‘redundancy’ mean the termination
to check that each tenderer has the competence and abilities                    of the contract of employment upon expiry of the period
required to carry out the works and that the award criteria, in                 of notice?
particular the qualitative and quantitative criteria, carry a
different weight even though that does not follow from the                2.    If ‘redundancy’ is to be construed as meaning the notice
contract documents.                                                             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
By its fourth plea in law, the appellant criticises the Court of                dismissal are announced?
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             (1 ) OJ L 225 of 12.08.1998, p. 16.
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.
                                                                          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
In support of its claim for compensation, the appellant argues            the estate of Dr Georg Friedrich Baur Sr. and Hauptzoll-
that, at the time when the contract was being awarded, the                                             amt Kiel
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                                         (Case C-194/03)
the profit which it hoped to secure from performing the
contract and whose commercial image and reputation have                                            (2003/C 213/13)
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.
                                                                          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
 ---pagebreak--- C 213/8                EN                        Official Journal of the European Union                                           6.9.2003
in the dispute between Dr Georg Friedrich Baur Jr., executor of                 resources required to deliver the special reference quantity
the estate of Dr Georg Friedrich Baur Sr. and Hauptzollamt                      to the lessor before 1 July 1994, had ceased milk
Kiel on the following questions:                                                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
1.    Is Article 3a(1) (second indent) (b) of Council Regulation                lease?
      (EEC) No 857/84 (1) of 31 March 1984 adopting general
      rules for the application of the levy referred to in
      Article 5c of Regulation (EEC) No 804/68 (2) in the                (1 ) OJ L 90 of 01.04.1984, p. 13.
      milk and milk products sector, as amended by Council               (2 ) English special edition...: Series-I 68(I) p. 176.
      Regulation (EEC) No 1639/91 ( 3) of 13 June 1991, to be            (3 ) OJ L 150 of 15.06.1991, p. 35.
      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?
                                                                         Appeal brought on 12 May 2003 by the Commission of
                                                                         the European Communities against the judgment deliver-
2.    On a proper construction of the second sentence of                 ed on 26 February 2003 by the Second Chamber of the
      the second subparagraph of Article 3a(4) of Council                Court of First Instance of the European Communities in
      Regulation (EEC) No 857/84 of 31 March 1984 adopting               Joined Cases T-344/00 and T-345/00 between CEVA Santé
      general rules for the application of the levy referred to in       animale SA and Pharmacia Entreprises SA, supported by
      Article 5c of Regulation (EEC) No 804/68 in the milk and           Fédération européenne de la santé animale (Fedesa), and
      milk products sector, as amended by Council Regulation                   the Commission of the European Communities (1)
      (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                                         (Case C-198/03 P)
      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                                        (2003/C 213/14)
      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?                                                              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
3.    If Question 2 is answered in the negative:                         Entreprises SA, supported by Fédération européenne de la
                                                                         santé animale (Fedesa), and the Commission of the European
      On a proper construction of the second subparagraph of             Communities was brought before the Court of Justice of the
      Article 3a(4) of Council Regulation (EEC) No 857/84 of             European Communities on 12 May 2003 by the Commission
      31 March 1984 adopting general rules for the application           of the European Communities, represented by T. Christoforou
      of the levy referred to in Article 5c of Regulation (EEC)          and M. Shotter, acting as agents, with an address for service in
      No 804/68 in the milk and milk products sector, as                 Luxembourg.
      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             The Applicant claims that the Court should:
      national reserve where the formerly non-marketing hold-
      ing had definitively abandoned enjoyment of the pro-
      duction resources required to deliver the special reference        —      set aside the judgment of the Court of First Instance
      quantity before 1 July 1994?                                              (Second Chamber) of 26 February 2003 in Joined Cases
                                                                                T-344/00 and T-345/00 as regards the actions for
                                                                                damages;
4.    If Question 3 is answered in the affirmative:
                                                                         —      rule on the substance of the applications for damages by
                                                                                dismissing them entirely as unfounded;
      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               —      order the applicants to pay the Commission’s costs.