CELEX: C2003/213/12
Language: en
Date: 2003-09-06 00:00:00
Title: 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

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