Case C‑392/13

Andrés Rabal Cañas

v

Nexea Gestión Documental SA

and

Fondo de Garantía Salarial

(Request for a preliminary ruling from the Juzgado de lo Social No 33 de Barcelona)

‛Reference for a preliminary ruling — Social policy — Collective redundancies — Directive 98/59/EC — Meaning of ‘establishment’ — Method of calculating the number of workers made redundant’

Summary — Judgment of the Court (Fifth Chamber), 13 May 2015

1. Judicial proceedings — Advocate General’s Opinion — No provision for the parties or the referring court to submit observations in response to that Opinion — Possibility of requesting clarifications from the referring court — Exclusive prerogative of the Court

   (Rules of Procedure of the Court of Justice, Art. 101)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions, hypothetical questions put in a context not permitting a useful answer and questions bearing no relation to the subject matter of the case in the main proceedings — None — Admissibility

   (Art. 267 TFEU)

3. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Meaning of establishment

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

4. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of collective redundancies — Method of calculating the number of workers made redundant — National legislation using the undertaking and not the establishment as the sole reference unit, the result of which is to preclude the application of the workers’ information and consultation procedure to redundancies that are to be considered collective redundancies — Unlawful

   (Council Directive 98/59, Arts 1(1)(a) and 2 to 4)

5. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of collective redundancies — Individual terminations of contracts of employment concluded for limited periods of time or for specific tasks on the date of expiry of the contract or on the date on which the task was completed — Not included

   (Council Directive 98/59, Art. 1(1) and 2 to 4)

6. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of collective redundancies — Collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks — Not necessary for cause of those redundancies to derive from the same collective contractual framework for the same duration or the same task

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

1.  Neither the Statute of the Court of Justice nor the Rules of Procedure make provision for the parties or the referring court to submit observations in response to the Advocate General’s Opinion. Furthermore, under Article 101 of the Rules of Procedure, only the Court of Justice is afforded the possibility of requesting clarifications from the referring court

   (see para. 32)

2.  See the text of the decision.

   (see paras 36-38)

3.  See the text of the decision.

   (see paras 42-51)

4.  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 national legislation that introduces the undertaking and not the establishment as the sole reference unit, where the effect of the application of that criterion is to preclude the information and consultation procedure provided for in Articles 2 to 4 of that directive, when the dismissals in question would have been considered ‘collective redundancies’, under the definition in Article 1(1)(a) of that directive, had the establishment been used as the reference unit.

   Replacing the term ‘establishment’ by the term ‘undertaking’ can be regarded as favourable to workers only if that element is additional and does not mean that the protection afforded to workers is lost or reduced where, the concept of establishment being taken into account, the number of dismissals required under Article 1(1)(a) of Directive 98/59 for the purposes of ‘collective redundancies’ is reached. Thus, more specifically, national legislation can be regarded as compatible with Article 1(1)(a)(i) of Directive 98/59 only if it provides for the application of the information and consultation obligations under Articles 2 to 4 of that directive, at the very least, in the event of the dismissal of 10 workers in establishments normally employing more than 20 and fewer than 100 workers. That obligation is independent of the additional requirements imposed, under national law, on undertakings normally employing fewer than 100 workers.

   (see paras 52-54, 57, operative part 1)

5.  Article 1(1) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that, for the purposes of establishing whether ‘collective redundancies’, within the meaning of that provision, have been effected, there is no need to take into account individual terminations of contracts of employment concluded for limited periods of time or for specific tasks, when those terminations take place on the date of expiry of the contract or on the date on which that task was completed.

   It is clear from the wording and scheme of Directive 98/59 that individual terminations of contracts concluded for limited periods of time or for specific tasks are excluded from the scope of that directive. Such contracts terminate, not on the initiative of the employer but pursuant to the clauses they contain or to the applicable law, on the date on which they expire or on which the task in respect of which they were concluded was completed. It would, therefore, be pointless to follow the procedures provided for in Articles 2 to 4 of Directive 98/59. In particular, the objective of avoiding redundancies or reducing their number and of seeking to mitigate the consequences could in no way be achieved as regards the dismissals that result from those contract terminations.

   (see paras 62, 63, 67, operative part 2)

6.  Article 1(2)(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, for the purposes of establishing the existence of collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks, it is not necessary for the cause of such collective redundancies to derive from the same collective contractual framework for the same duration or the same task.

   The term ‘collective redundancies’, as is apparent from the introductory wording of Article 1 of Directive 98/59, is defined for the purposes of the application of that directive in its entirety, including for the purposes of the application of Article 1(2)(a) of that directive. The interpretation of Article 1(2)(a) sought would be liable consequently also to restrict the scope of Directive 98/59. In Article 1(1)(a) of Directive 98/59, the legislature used one qualitative criterion only, namely, that the cause of the dismissal ‘not be related to the individual workers concerned’. It did not lay down any other requirements as to either the coming into existence of the employment relationship or as to the termination of that relationship. By restricting the scope of that directive, such requirements would be liable to undermine the objective of that directive, which, as recital 2 of that directive states, is to protect workers in the event of collective redundancies.

   (see paras 69, 70, 72, operative part 3)

Case C‑392/13

Andrés Rabal Cañas

v

Nexea Gestión Documental SA

and

Fondo de Garantía Salarial

(Request for a preliminary ruling from the Juzgado de lo Social No 33 de Barcelona)

‛Reference for a preliminary ruling — Social policy — Collective redundancies — Directive 98/59/EC — Meaning of ‘establishment’ — Method of calculating the number of workers made redundant’

Summary — Judgment of the Court (Fifth Chamber), 13 May 2015

1. Judicial proceedings — Advocate General’s Opinion — No provision for the parties or the referring court to submit observations in response to that Opinion — Possibility of requesting clarifications from the referring court — Exclusive prerogative of the Court

   (Rules of Procedure of the Court of Justice, Art. 101)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions, hypothetical questions put in a context not permitting a useful answer and questions bearing no relation to the subject matter of the case in the main proceedings — None — Admissibility

   (Art. 267 TFEU)

3. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Meaning of establishment

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

4. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of collective redundancies — Method of calculating the number of workers made redundant — National legislation using the undertaking and not the establishment as the sole reference unit, the result of which is to preclude the application of the workers’ information and consultation procedure to redundancies that are to be considered collective redundancies — Unlawful

   (Council Directive 98/59, Arts 1(1)(a) and 2 to 4)

5. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of collective redundancies — Individual terminations of contracts of employment concluded for limited periods of time or for specific tasks on the date of expiry of the contract or on the date on which the task was completed — Not included

   (Council Directive 98/59, Art. 1(1) and 2 to 4)

6. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of collective redundancies — Collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks — Not necessary for cause of those redundancies to derive from the same collective contractual framework for the same duration or the same task

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

1.  Neither the Statute of the Court of Justice nor the Rules of Procedure make provision for the parties or the referring court to submit observations in response to the Advocate General’s Opinion. Furthermore, under Article 101 of the Rules of Procedure, only the Court of Justice is afforded the possibility of requesting clarifications from the referring court

   (see para. 32)

2.  See the text of the decision.

   (see paras 36-38)

3.  See the text of the decision.

   (see paras 42-51)

4.  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 national legislation that introduces the undertaking and not the establishment as the sole reference unit, where the effect of the application of that criterion is to preclude the information and consultation procedure provided for in Articles 2 to 4 of that directive, when the dismissals in question would have been considered ‘collective redundancies’, under the definition in Article 1(1)(a) of that directive, had the establishment been used as the reference unit.

   Replacing the term ‘establishment’ by the term ‘undertaking’ can be regarded as favourable to workers only if that element is additional and does not mean that the protection afforded to workers is lost or reduced where, the concept of establishment being taken into account, the number of dismissals required under Article 1(1)(a) of Directive 98/59 for the purposes of ‘collective redundancies’ is reached. Thus, more specifically, national legislation can be regarded as compatible with Article 1(1)(a)(i) of Directive 98/59 only if it provides for the application of the information and consultation obligations under Articles 2 to 4 of that directive, at the very least, in the event of the dismissal of 10 workers in establishments normally employing more than 20 and fewer than 100 workers. That obligation is independent of the additional requirements imposed, under national law, on undertakings normally employing fewer than 100 workers.

   (see paras 52-54, 57, operative part 1)

5.  Article 1(1) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that, for the purposes of establishing whether ‘collective redundancies’, within the meaning of that provision, have been effected, there is no need to take into account individual terminations of contracts of employment concluded for limited periods of time or for specific tasks, when those terminations take place on the date of expiry of the contract or on the date on which that task was completed.

   It is clear from the wording and scheme of Directive 98/59 that individual terminations of contracts concluded for limited periods of time or for specific tasks are excluded from the scope of that directive. Such contracts terminate, not on the initiative of the employer but pursuant to the clauses they contain or to the applicable law, on the date on which they expire or on which the task in respect of which they were concluded was completed. It would, therefore, be pointless to follow the procedures provided for in Articles 2 to 4 of Directive 98/59. In particular, the objective of avoiding redundancies or reducing their number and of seeking to mitigate the consequences could in no way be achieved as regards the dismissals that result from those contract terminations.

   (see paras 62, 63, 67, operative part 2)

6.  Article 1(2)(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, for the purposes of establishing the existence of collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks, it is not necessary for the cause of such collective redundancies to derive from the same collective contractual framework for the same duration or the same task.

   The term ‘collective redundancies’, as is apparent from the introductory wording of Article 1 of Directive 98/59, is defined for the purposes of the application of that directive in its entirety, including for the purposes of the application of Article 1(2)(a) of that directive. The interpretation of Article 1(2)(a) sought would be liable consequently also to restrict the scope of Directive 98/59. In Article 1(1)(a) of Directive 98/59, the legislature used one qualitative criterion only, namely, that the cause of the dismissal ‘not be related to the individual workers concerned’. It did not lay down any other requirements as to either the coming into existence of the employment relationship or as to the termination of that relationship. By restricting the scope of that directive, such requirements would be liable to undermine the objective of that directive, which, as recital 2 of that directive states, is to protect workers in the event of collective redundancies.

   (see paras 69, 70, 72, operative part 3)