July 13
Judges ML Arastey Sahún, F Biltgen (Rapporteur), N Wahl, J Passer
Advocate General P Pikamäe
A German court initiated insolvency proceedings in respect of the company and appointed the defendant as insolvency administrator who performed the function of employer for the duration of the proceedings. It was decided that the company would cease all business operations and that there would be redundancies. The procedure for consultation with the works council, acting as the workers’ representative, was initiated. The information set out in the first sub-paragraph of article 2(3)(b) of Council Directive 98/59/EC was communicated to the works council in writing but not forwarded to the competent public authority. The works council did not see a way in which the redundancies might be avoided and the projected collective redundancy was notified to the competent authority. The applicant was informed that his contract of employment would be terminated. He brought an action before a labour court for a finding of non-termination of his employment on the basis that a copy of the communication sent to the works council had not been forwarded to the competent public authority. The action having been dismissed at first instance and on appeal, the applicant appealed to the Federal Labour Court, Germany which stayed the proceedings and referred a question for a preliminary ruling to the Court of Justice of the European Union asking, in essence, whether the second sub-paragraph of article 2(3) of Directive 98/59 meant that the employer’s obligation to forward to the competent public authority a copy of, at least, the elements of the written communication provided for in the first sub-paragraph of article 2(3)(b)(i) to (v) was intended to confer individual protection on the workers affected by collective redundancies.
On the reference—
Held, since there was nothing in article 2(3)(b) (i) to (v) of Directive 98/59 that clarified the purpose of the obligation of forwarding the relevant information to the competent public authority, it was necessary to examine its context. It appeared in Section II, entitled “Information and consultation”, which governed the procedure for the consultation of workers’ representatives where an employer was contemplating a collective redundancy and the consultation with workers’ representatives was not yet complete. The forwarding of information merely gave the competent public authority an idea of the reasons for the projected redundancies, the number and categories of workers to be made redundant, the number and categories of workers normally employed, the period over which the projected redundancies were to be effected, and the criteria proposed for the selection of the workers to be made redundant. The public authority could not, therefore, rely on that information to prepare measures falling within its responsibility in the event of a collective redundancy. The second sub-paragraph of article 2(3) of Directive 98/59 merely designated the competent public authority as the recipient of a copy of the written communication provided in the first sub-paragraph of article 2(3)(b)(i) to (v) and did not give it any active role during the consultation process involving workers’ representatives. The obligation to forward information to the competent public authority was intended to enable the authority to anticipate as far as possible the negative consequences of projected collective redundancies in order to seek effective solutions to the problems raised by those redundancies. The competent public authority was not intended to deal with each worker’s individual situation but to gain an overall understanding of the projected collective redundancies. It followed that the second sub-paragraph of article 2(3) gave workers collective, not individual, protection (judgment, paras 26–28, 32–34, 36–37, 41, operative part).
C Schomaker for the applicant.
M Stahn for the liquidator.
B-R Killmann and D Recchia, agents, for the European Commission.