61981J0091

SOCIAL POLICY - APPROXIMATION OF LAWS - COLLECTIVE REDUNDANCIES - DIRECTIVE 75/129/EEC - PURPOSE - POWERS OF THE MEMBER STATES

( EEC TREATY , ART . 117 ; COUNCIL DIRECTIVE 75/129/EEC )

DIRECTIVE 75/129 , WHICH THE COUNCIL CONSIDERS CORRESPONDS TO THE NEED , STATED IN ARTICLE 117 OF THE TREATY , TO PROMOTE IMPROVED WORKING CONDITIONS AND AN IMPROVED STANDARD OF LIVING FOR WORKERS , IS INTENDED TO APPROXIMATE THE PROVISIONS LAID DOWN IN THIS FIELD BY THE MEMBER STATES BY LAW , REGULATION OR ADMINIS TRATIVE ACTION RELATING TO COLLECTIVE REDUNDANCIES . THE PROVISIONS OF THE DIRECTIVE ARE THUS INTENDED TO SERVE TO ESTABLISH A COMMON BODY OF RULES APPLICABLE IN ALL THE MEMBER STATES , WHILST LEAVING TO THE MEMBER STATES POWER TO APPLY OR INTRODUCE PROVISIONS WHICH ARE MORE FAVOURABLE TO WORKERS .

IN CASE 91/81

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ARMANDO TOLEDANO LAREDO , ITS LEGAL ADVISER , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

ITALIAN REPUBLIC , IN THE PERSON OF ITS AGENT , ARNALDO SQUILLANTE , HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS , TREATIES AND LEGISLATIVE MATTERS , REPRESENTED BY PIER GIORGIO FERRI , AVVOCATO DELLO STATO , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE ITALIAN REPUBLIC , BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 75/129/EEC OF 17 FEBRUARY 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO COLLECTIVE REDUNDANCIES ( OFFICIAL JOURNAL L 48 , P . 29 ), HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 15 APRIL 1981 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION BEFORE THE COURT UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE MEASURES NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 75/129/EEC OF 17 FEBRUARY 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO COLLECTIVE REDUNDANCIES ( OFFICIAL JOURNAL L 48 , P . 29 ).

2 DIRECTIVE 75/129/EEC WAS ADOPTED BY THE COUNCIL ON THE BASIS OF ARTICLE 100 OF THE TREATY CONCERNING THE APPROXIMATION OF SUCH PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION IN MEMBER STATES AS DIRECTLY AFFECT THE ESTABLISHMENT OR FUNCTIONING OF THE COMMON MARKET . THE RECITALS IN THE PREAMBLE TO THE DIRECTIVE STATE THAT IT IS IMPORTANT THAT GREATER PROTECTION SHOULD BE AFFORDED TO WORKERS IN THE EVENT OF COLLECTIVE REDUNDANCIES WHILST TAKING INTO ACCOUNT THE NEED FOR BALANCED ECONOMIC AND SOCIAL DEVELOPMENT WITHIN THE COMMUNITY ; THAT , DESPITE INCREASING CONVERGENCE , DIFFERENCES STILL REMAIN BETWEEN THE PROVISIONS IN FORCE IN THE MEMBER STATES OF THE COMMUNITY CONCERNING THE PRACTICAL ARRANGEMENTS AND PROCEDURES FOR SUCH REDUNDANCIES AND THE MEASURES DESIGNED TO ALLEVIATE THE CONSEQUENCES OF REDUNDANCY FOR WORKERS ; THAT THESE DIFFERENCES MAY HAVE A DIRECT EFFECT ON THE FUNCTIONING OF THE COMMON MARKET ; THAT THE COUNCIL RESOLUTION OF 21 JANUARY 1974 MAKES PROVISION FOR A DIRECTIVE ON THE APPROXIMATION OF MEMBER STATES ' LEGISLATION ON COLLECTIVE REDUNDANCIES , AND THAT IT IS THEREFORE NECESSARY TO PROMOTE THAT APPROXIMATION WITHIN THE MEANING OF ARTICLE 117 OF THE TREATY WHICH IS INTENDED TO PROMOTE IMPROVED WORKING CONDITIONS AND AN IMPROVED STANDARD OF LIVING FOR WORKERS , SO AS TO MAKE POSSIBLE THEIR HARMONIZATION WHILE THE IMPROVEMENT IS BEING MAINTAINED .

3 WITH THIS IN VIEW THE DIRECTIVE DETERMINES THE SCOPE OF THE CONCEPT OF ' ' COLLECTIVE REDUNDANCIES ' ' WHILST LEAVING THE MEMBER STATES TO CHOOSE BETWEEN THE TWO CRITERIA WHICH IT LAYS DOWN .

4 ARTICLE 2 OF THE DIRECTIVE PROVIDES THAT WHERE AN EMPLOYER IS CONTEMPLATING COLLECTIVE REDUNDANCIES , HE MUST BEGIN CONSULTATIONS WITH THE WORKERS ' REPRESENTATIVES WITH A VIEW TO REACHING AN AGREEMENT . HE IS REQUIRED TO SUPPLY THEM WITH ALL RELEVANT INFORMATION AND IN ANY EVENT TO GIVE IN WRITING THE REASONS FOR THE REDUNDANCIES , THE NUMBER OF WORKERS TO BE MADE REDUNDANT , THE NUMBER OF WORKERS NORMALLY EMPLOYED AND THE PERIOD OVER WHICH THE REDUNDANCIES ARE TO BE EFFECTED . HE IS REQUIRED TO FORWARD TO THE COMPETENT PUBLIC AUTHORITY A COPY OF THAT WRITTEN COMMUNICATION .

5 ARTICLES 3 AND 4 OF THE DIRECTIVE CONTAIN PROVISIONS CONCERNING THE MEASURES TO BE TAKEN BY THE COMPETENT PUBLIC AUTHORITY . THE EMPLOYER IS REQUIRED TO NOTIFY THAT AUTHORITY IN WRITING OF ANY PROJECTED COLLECTIVE REDUNDANCIES . THE NOTIFICATION MUST CONTAIN ALL RELEVANT INFORMATION ON THE MATTERS SPECIFIED IN ARTICLE 2 AND , IN ADDITION , ON THE CONSULTATIONS WITH THE WORKERS ' REPRESENTATIVES . A COPY OF THAT NOTIFICATION MUST BE FORWARDED TO THE WORKERS ' REPRESENTATIVES . AS A GENERAL RULE COLLECTIVE REDUNDANCIES MAY NOT TAKE EFFECT EARLIER THAN 30 DAYS AFTER NOTIFICATION . THE COMPETENT PUBLIC AUTHORITY MUST USE THIS PERIOD TO SEEK SOLUTIONS TO THE PROBLEMS RAISED BY THE COLLECTIVE REDUNDANCIES AND THE ABOVE-MENTIONED PERIOD MAY BE EXTENDED FOR THAT PURPOSE .

6 ARTICLE 6 OF THE DIRECTIVE REQUIRES THE MEMBER STATES TO BRING INTO FORCE , WITHIN A PERIOD OF TWO YEARS FOLLOWING NOTIFICATION OF THE DIRECTIVE , THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED IN ORDER TO COMPLY THEREWITH .

7 ARTICLE 5 STATES THAT THE DIRECTIVE IS NOT TO AFFECT THE RIGHT OF MEMBER STATES TO APPLY OR INTRODUCE LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS WHICH ARE MORE FAVOURABLE TO WORKERS .

8 THE ITALIAN GOVERNMENT HAS OBSERVED THAT , HAVING REGARD TO THE WHOLE OF THE ITALIAN SYSTEM OF PROTECTION IN THE CASE OF DISMISSALS WHICH IS PROVIDED BOTH BY THE WIDE SCOPE GIVEN BY ITALIAN LEGISLATION TO THE CONCEPT OF INDIVIDUAL REDUNDANCY , WHICH IS HEAVILY WEIGHTED IN FAVOUR OF WORKERS , TO THE SPECIFIC PROVISIONS LAID DOWN BY REGULATION RELATING TO COLLECTIVE REDUNDANCIES AND BY THE PROVISIONS OF COLLECTIVE AGREEMENTS , THAT SYSTEM CREATES CONDITIONS AND ESTABLISHES PROCEDURES MAKING IT POSSIBLE TO ATTAIN THE OBJECTIVES OF THE DIRECTIVE AND INDEED , IN VARIOUS RESPECTS , EXCEEDING ITS REQUIREMENTS .

9 NEVERTHELESS THE ITALIAN GOVERNMENT DOES NOT DISPUTE THAT IN CERTAIN SECTORS , ESPECIALLY IN AGRICULTURE AND COMMERCE , ITALIAN LEGISLATION IS NOT AS COMPREHENSIVE AS THE PROVISIONS OF THE DIRECTIVE . IT IS FURTHERMORE COMMON GROUND THAT ITALIAN COLLECTIVE AGREEMENTS DO NOT REQUIRE THE NOTIFICATION IN WRITING ON THE PART OF THE EMPLOYER WHICH IS PROVIDED FOR BY THE DIRECTIVE AND THAT THE ITALIAN SYSTEM DOES NOT PROVIDE , AS IS REQUIRED BY THE DIRECTIVE , THAT THE COMPETENT PUBLIC AUTHORITY MUST BE NOTIFIED OF ANY COLLECTIVE REDUNDANCY AND THAT THE COMPETENT PUBLIC AUTHORITY IS NOT COMPELLED TO INTERVENE IN ORDER TO SEEK SOLUTIONS TO THE PROBLEMS RAISED BY THE PROJECTED COLLECTIVE REDUNDANCIES .

10 IT IS CLEAR FROM THE FOREGOING THAT THE PROVISIONS IN THIS FIELD WHICH ARE IN FORCE IN ITALY DO NOT SUFFICE TO MEET THE TOTALITY OF THE REQUIREMENTS OF THE DIRECTIVE .

11 IN THIS CONNECTION IT SHOULD BE EMPHASIZED THAT THE DIRECTIVE , WHICH THE COUNCIL CONSIDERS CORRESPONDS TO THE NEED , STATED IN ARTICLE 117 OF THE TREATY , TO PROMOTE IMPROVED WORKING CONDITIONS AND AN IMPROVED STANDARD OF LIVING FOR WORKERS , IS INTENDED TO APPROXIMATE THE PROVISIONS LAID DOWN IN THIS FIELD BY THE MEMBER STATES BY LAW , REGULATION OR ADMINISTRATIVE ACTION . THE PROVISIONS OF THE DIRECTIVE ARE THUS INTENDED TO SERVE TO ESTABLISH A COMMON BODY OF RULES APPLICABLE IN ALL THE MEMBER STATES , WHILST LEAVING TO THE MEMBER STATES POWER TO APPLY OR INTRODUCE PROVISIONS WHICH ARE MORE FAVOURABLE TO WORKERS .

12 IT IS CLEAR FROM THESE CONSIDERATIONS THAT BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE MEASURES NEEDED IN ORDER FULLY TO COMPLY WITH THE DIRECTIVE THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

COSTS

13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY MUST BE ORDERED TO BEAR THE COSTS .

14 SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT , BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE MEASURES NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE 75/129/EEC OF 17 FEBRUARY 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO COLLECTIVE REDUNDANCIES ( OFFICIAL JOURNAL L 48 , P . 29 ), THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY ;

2.ORDERS THE DEFENDANT TO PAY THE COSTS .