Case C‑229/14

Ender Balkaya

v

Kiesel Abbruch- und Recycling Technik GmbH

(Request for a preliminary ruling from the Arbeitsgericht Verden)

‛Reference for a preliminary ruling — Directive 98/59/EC — Article 1(1)(a) — Collective redundancies — Concept of ‘worker’ — Member of the board of directors of a limited liability company — Person working under a scheme for training and reintegration into the labour market and benefitting from a public training grant but not receiving remuneration from the employer’

Summary — Judgment of the Court (First Chamber), 9 July 2015

1. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of ‘worker’ — Independent and uniform interpretation

   (Council Directive 98/59, Art. 1(1)(a))

2. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Calculation of the threshold of workers employed — National law excluding from that calculation a member of the board of directors of a capital company — Unlawful

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

3. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of ‘worker’ — Trainee performing real work within an undertaking — Included

   (Council Directive 98/59, Art. 1(1)(a))

1.  See the text of the decision.

   (see paras 33, 34, 36, 37)

2.  Article 1(1)(a) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as precluding a national law or practice that does not take into account, in the calculation provided for by that provision of the number of workers employed, a member of the board of directors of a capital company who performs his duties under the direction and subject to the supervision of another body of that company and who receives remuneration in return for the performance of his duties and does not himself own any shares in the company.

   In that regard, the fact that a person is a member of the board of directors of a capital company is not enough in itself to rule out the possibility that that person is in a relationship of subordination to that company. It is necessary to consider the circumstances in which the board member was recruited; the nature of the duties entrusted to that person; the context in which those duties were performed; the scope of the person’s powers and the extent to which he or she was supervised within the company; and the circumstances under which the person could be removed. Even if such a board member of a capital company enjoys a degree of latitude in the performance of his duties that exceeds, in particular, that of a worker within the meaning of the national law, who may be directed by the employer as to the specific tasks that he must complete and the manner in which they must be carried out, the fact remains that the board member is in a relationship of subordination vis-à-vis that company.

   Furthermore, that interpretation is also borne out by the objective of Directive 98/59 which is, as is apparent from recital 2 in the preamble thereto, inter alia, to afford greater protection to workers in the event of collective redundancies. In accordance with that objective, a narrow definition cannot be given to the concepts that define the scope of that directive, including the concept of ‘worker’ in Article 1(1)(a) of the directive.

   Finally, it must be observed that a national law or practice which does not take into account the board members of a capital company in the calculation provided for in Article 1(1)(a) of Directive 98/59 of the number of workers employed, is liable not only to affect the protection afforded by that directive to those members, but, above all, to deprive all the workers employed by certain establishments, normally employing more than 20 workers, of the rights which they derive from that directive and thus undermines its effectiveness.

   (see paras 38, 41, 44, 47, 48, operative part 1)

3.  Article 1(1)(a) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that it is necessary to regard as a worker for the purposes of that provision a person who, while not receiving remuneration from his employer, performs real work within the undertaking in the context of a traineeship — with financial support from, and the recognition of, the public authority responsible for the promotion of employment — in order to acquire or improve skills or complete vocational training.

   In that regard, in the first place, the concept of ‘worker’ in EU law extends to a person who serves a traineeship or periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question, provided that the periods are served under the conditions of genuine and effective activity as an employed person, for and under the direction of an employer.

   In the second place, neither the legal context of the employment relationship under national law, in the framework of which the vocational training or internship is carried out, nor the origin of the funds from which the person concerned is remunerated and, in particular, the funding of that remuneration through public grants, can have any consequence in regard to whether or not the person is to be considered to be a worker.

   (see paras 50-52, operative part 2)

Case C‑229/14

Ender Balkaya

v

Kiesel Abbruch- und Recycling Technik GmbH

(Request for a preliminary ruling from the Arbeitsgericht Verden)

‛Reference for a preliminary ruling — Directive 98/59/EC — Article 1(1)(a) — Collective redundancies — Concept of ‘worker’ — Member of the board of directors of a limited liability company — Person working under a scheme for training and reintegration into the labour market and benefitting from a public training grant but not receiving remuneration from the employer’

Summary — Judgment of the Court (First Chamber), 9 July 2015

1. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of ‘worker’ — Independent and uniform interpretation

   (Council Directive 98/59, Art. 1(1)(a))

2. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Calculation of the threshold of workers employed — National law excluding from that calculation a member of the board of directors of a capital company — Unlawful

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

3. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of ‘worker’ — Trainee performing real work within an undertaking — Included

   (Council Directive 98/59, Art. 1(1)(a))

1.  See the text of the decision.

   (see paras 33, 34, 36, 37)

2.  Article 1(1)(a) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as precluding a national law or practice that does not take into account, in the calculation provided for by that provision of the number of workers employed, a member of the board of directors of a capital company who performs his duties under the direction and subject to the supervision of another body of that company and who receives remuneration in return for the performance of his duties and does not himself own any shares in the company.

   In that regard, the fact that a person is a member of the board of directors of a capital company is not enough in itself to rule out the possibility that that person is in a relationship of subordination to that company. It is necessary to consider the circumstances in which the board member was recruited; the nature of the duties entrusted to that person; the context in which those duties were performed; the scope of the person’s powers and the extent to which he or she was supervised within the company; and the circumstances under which the person could be removed. Even if such a board member of a capital company enjoys a degree of latitude in the performance of his duties that exceeds, in particular, that of a worker within the meaning of the national law, who may be directed by the employer as to the specific tasks that he must complete and the manner in which they must be carried out, the fact remains that the board member is in a relationship of subordination vis-à-vis that company.

   Furthermore, that interpretation is also borne out by the objective of Directive 98/59 which is, as is apparent from recital 2 in the preamble thereto, inter alia, to afford greater protection to workers in the event of collective redundancies. In accordance with that objective, a narrow definition cannot be given to the concepts that define the scope of that directive, including the concept of ‘worker’ in Article 1(1)(a) of the directive.

   Finally, it must be observed that a national law or practice which does not take into account the board members of a capital company in the calculation provided for in Article 1(1)(a) of Directive 98/59 of the number of workers employed, is liable not only to affect the protection afforded by that directive to those members, but, above all, to deprive all the workers employed by certain establishments, normally employing more than 20 workers, of the rights which they derive from that directive and thus undermines its effectiveness.

   (see paras 38, 41, 44, 47, 48, operative part 1)

3.  Article 1(1)(a) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that it is necessary to regard as a worker for the purposes of that provision a person who, while not receiving remuneration from his employer, performs real work within the undertaking in the context of a traineeship — with financial support from, and the recognition of, the public authority responsible for the promotion of employment — in order to acquire or improve skills or complete vocational training.

   In that regard, in the first place, the concept of ‘worker’ in EU law extends to a person who serves a traineeship or periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question, provided that the periods are served under the conditions of genuine and effective activity as an employed person, for and under the direction of an employer.

   In the second place, neither the legal context of the employment relationship under national law, in the framework of which the vocational training or internship is carried out, nor the origin of the funds from which the person concerned is remunerated and, in particular, the funding of that remuneration through public grants, can have any consequence in regard to whether or not the person is to be considered to be a worker.

   (see paras 50-52, operative part 2)