Case C‑196/23

CL and Others

v

DB, acting in the capacity of sole successor to FC

(Reference for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña)

Judgment of the Court (Second Chamber) of 11 July 2024

(Reference for a preliminary ruling – Social policy – Directive 98/59/EC – Collective redundancies – Article 1(1)(a) and Article 2 – Obligation to inform and consult workers’ representatives – Scope – Termination of employment contracts on the ground of the employer’s retirement – Articles 27 and 30 of the Charter of Fundamental Rights of the European Union)

1. Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Obligation to inform and consult workers – Termination of employment contracts on the ground of the employer’s retirement – National law not classifying such terminations as collective redundancies – Not permissible

   (Council Directive 98/59, recital 2 and Arts 1(1) and 2)

   (see paragraphs 24-26, 28-39, operative part 1)

2. Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Obligation to inform and consult workers – Termination of employment contracts on the ground of the employer’s retirement – National law not classifying such terminations as collective redundancies – Obligation of conforming interpretation – Limits – National law incompatible with EU law – Dispute between private individuals – No obligation for the national court to disapply the national law at issue

   (Council Directive 98/59, Art. 1(1) and (2))

   (see paragraphs 41- 43, 46, 47-57, operative part 2)

3. Fundamental rights – Charter of Fundamental Rights – Workers’ right to information and consultation within the undertaking – Protection in the event of unjustified dismissal – Whether it may be invoked in a dispute between private individuals in order to set aside a national provision which is not consistent with Directive 98/59 – Excluded

   (Charter of Fundamental Rights of the European Union, Arts 27 and 30; Council Directive 98/59, Art. 1(1)and (2))

   (see paragraphs 49-56)

Résumé

Hearing a request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain), the Court of Justice extends its case-law on collective redundancies to specify that an employer who retires must comply with the provisions of Directive 98/59 ( 1 ) and fulfil the obligation to inform and consult workers with a view to avoiding the terminations of employment contracts, reducing their number or, at least, mitigating the effects thereof.

In the present case, the applicants were employed in one of the establishments belonging to FC’s undertaking. On 17 June 2020, they were informed by FC of the termination, with effect from 17 July 2020, of their employment contracts, owing to FC’s retirement. That retirement resulted in the termination of 54 ongoing employment contracts, which included the 8 contracts of the applicants in the main proceedings.

The applicants therefore brought an action against FC in order to challenge the unlawful dismissal that they considered that they had been subject to. Hearing an appeal against the dismissal of that action, the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain) is called upon to rule on whether the terminations of the employment contracts of the applicants in the main proceedings must be held to be dismissals that are null and void as a result of the failure to comply with the procedure of consulting the workers’ representatives, provided for in the national Workers’ Statute, ( 2 ) notwithstanding the fact that those terminations were caused by FC’s retirement.

That court wonders whether the exclusion, by that statute, from the scope of the consultation procedure at issue, in cases in which the number of terminations of employment contracts exceeds that provided for in Article 1 of Directive 98/59, where those terminations are the result of the employer’s retirement, complies with Directive 98/59 and, if not, whether the workers concerned may rely on that directive against their natural person employer, even though that directive had not been correctly implemented in domestic law.

Findings of the Court

As regards, in the first place, the question of whether the information and consultation procedure provided for in Directive 98/59 must be applied where the termination of employment contracts at issue is the result of the employer’s retirement, the Court recalls, first of all, that the concept of ‘redundancy’, within the meaning of Article 1(1)(a) of that directive, does not require, inter alia, that the underlying causes of the termination of the employment contract reflect the employer’s wishes and, secondly, that a termination of an employment contract does not escape the application of the directive just because it depends on external circumstances not contingent on the employer’s will.

Furthermore, even in some circumstances in which the definitive termination of the undertaking’s activity is not contingent upon the employer’s will and where full application of Directive 98/59 is impossible, it remains the case that the application of that directive is not to be excluded in its entirety. In particular, in accordance with the first paragraph of Article 2(2) of that directive, the purpose of consulting the workers’ representatives is not only to avoid collective redundancies or to reduce the number of workers affected, but also, inter alia, to mitigate the consequences of such redundancies by recourse to accompanying social measures aimed, in particular, at aid for redeploying or retraining workers made redundant. Those consultations therefore remain relevant where the foreseen terminations of employment contracts are connected with the employer’s retirement.

In that regard, the Court also observes that the specific circumstances of a situation in which the natural person employer has died, ( 3 ) where there is neither a decision to terminate employment contracts nor a prior intention to carry out those terminations, nor yet the possibility for the employer concerned to carry out the information and consultation procedure provided for in Directive 98/59, are not present in the situation in which the termination of the employment contracts is the consequence of such an employer’s retirement. In that latter situation, the employer contemplates those terminations of employment contracts in the light of his or her retirement and, in principle, is capable of conducting consultations seeking, inter alia, to avoid those terminations or to reduce their number or, in any event, to mitigate their consequences.

The termination of the employment contracts of a number of workers greater than that provided for in that Article 1(1) of Directive 98/59, as a result of the retirement of the employer, consequently falls within the concept of ‘collective redundancy’, within the meaning of that directive, and gives rise to the obligation to inform and consult the workers’ representatives provided for in that Article 2.

As regards, in the second place, the question of whether a national court, hearing proceedings between private individuals, is required to disapply such a national law on the ground that it is contrary to the provisions of Directive 98/59, the Court replies in the negative.

In that regard, it recalls that a directive, which has either not been transposed or has been incorrectly transposed, cannot of itself impose obligations on an individual, and cannot therefore be relied on as such against an individual.

The same applies in respect of Articles 27 ( 4 ) and 30 ( 5 ) of the Charter of Fundamental Rights of the European Union (‘the Charter’), cited by the referring court. It is clear from the wording of those provisions that, for those articles to be fully effective, they must be given more specific expression in provisions of EU or national law. Rules such as those contained in the provisions of Article 1(1) and Article 2 of Directive 98/59, addressed to the Member States and defining the situations in which a procedure of information and consultation of workers’ representatives must take place in the event of collective redundancies of those workers, as well as the substantive and procedural conditions that must be satisfied by that information and consultation, cannot be inferred, as directly applicable rules of law, from the wording of Articles 27 or 30 of the Charter. Furthermore, since those articles do not suffice by themselves to confer on individuals a right which they may invoke as such, it could not be otherwise if they are considered in conjunction with the articles concerned of Directive 98/59.

Therefore, Articles 27 and 30 of the Charter cannot be invoked, either by themselves or in conjunction with Article 1(1) and Article 2 of Directive 98/59, in a dispute between individuals, such as that at issue in the main proceedings, in order to conclude that the national provisions which are not in conformity with the provisions of that directive should not be applied.

( 1 ) Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16).

( 2 ) Article 51 of the Estatuto de los Trabajadores (Workers’ Statute) in the version following Real Decreto Legislativo 2/2015, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 2/2015 approving the consolidated text of the Workers’ Statute) of 23 October 2015 (BOE No 255 of 24 October 2015, p. 100224) (‘the Workers’ Statute’).

( 3 ) The situation at issue in the judgment of 10 December 2009, Rodríguez Mayor and Others (C‑323/08, EU:C:2009:770), which also concerned the provisions of the Workers’ Statute.

( 4 ) Entitled ‘Workers’ right to information and consultation within the undertaking’, which provides that workers must, at different levels, be guaranteed information and consultation in the cases and under the conditions provided for by EU law and national laws and practices.

( 5 ) Entitled ‘Protection in the event of unjustified dismissal’, which provides that every worker has the right to protection against unjustified dismissal, in accordance with EU law and national laws and practices.