CELEX: 62019CJ0300
Reference for a preliminary ruling
Social policy
Collective redundancies
Directive 98/59/EC
Article 1(1), first subparagraph, (a)
Concept of ‘collective redundancies’
Methods of calculating the number of redundancies
Reference period to take into account

This request for a preliminary ruling concerns the interpretation of Article 1(1), first subparagraph, (a), of 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
).
The request has been made in proceedings between UQ and Marclean Technologies SLU regarding the legality of her individual dismissal.
Legal context
European Union law
Under recitals 2 to 4, 7 and 8 of Directive 98/59:
‘(2)
Whereas it is important that greater protection should be afforded to workers in the event of collective redundancies while taking into account the need for balanced economic and social development within the Community;
(3)
Whereas, despite increasing convergence, differences still remain between the provisions in force in the Member States concerning the practical arrangements and procedures for such redundancies and the measures designed to alleviate the consequences of redundancy for workers;
(4)
Whereas these differences can have a direct effect on the functioning of the internal market;
…
(7)
Whereas this approximation must therefore be promoted while the improvement is being maintained within the meaning of Article 117 of the [EC] Treaty;
(8)
Whereas, in order to calculate the number of redundancies provided for in the definition of collective redundancies within the meaning of this directive, other forms of termination of employment contracts on the initiative of the employer should be equated to redundancies, provided that there are at least five redundancies’.
Section I of that directive, entitled ‘Definitions and scope’ consists of Article 1 thereof, paragraph 1 of which specifies:
‘For the purposes of this directive:
(a)
“collective redundancies” means dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies is:
(i)
either, over a period of 30 days:
–
at least 10 in establishments normally employing more than 20 and less than 100 workers,
–
at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers,
–
at least 30 in establishments normally employing 300 workers or more,
(ii)
or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question;
(b)
…
For the purpose of calculating the number of redundancies provided for in the first subparagraph of point (a), terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned shall be assimilated to redundancies, provided that there are at least five redundancies.’
Spanish law
The Estatuto de los Trabajadores (Workers’ Statute) follows from 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 Law on the Workers’ Statute) of 23 October 2015 (BOE No 255 of 24 October 2015, p. 100224). Article 51(1) of that statute, entitled ‘Collective redundancy’, states:
‘For the purposes of the present law, “collective redundancy” shall mean the termination of employment contracts on economic, technical, organisational or production grounds, where, over a period of 90 days, the termination affects at least:
(a)
10 workers in undertakings employing fewer than 100 workers;
(b)
10% of the number of workers in undertakings employing between 100 and 300 workers
(c)
30 workers in undertakings employing more than 300 workers.
…
For the purpose of calculating the number of contract terminations for the purposes of the first subparagraph of this paragraph, all other terminations of an employment contract during the period of reference which occur on the employer’s initiative for other reasons not related to the individual workers concerned which are different from the grounds provided for in Article 49(1)(c) of this Law shall also be taken into account, provided that at least five employees are affected.
When, in successive periods of 90 days and in order to circumvent the requirements of this article, an undertaking terminates contracts under Article 52(c) of this Law, the number of terminations being lower than the thresholds indicated, and when there are no new grounds justifying such action, those new terminations shall be deemed to be effected in circumvention of the law and shall be declared null and void.’
Article 122 of Ley 36/2011, reguladora de la jurisdicción social (Law 36/2011 governing social jurisdiction) of 10 October 2011 (BOE No 245 of 11 October 2011, p. 106584), entitled ‘Assessment of the termination of contracts’ states:
‘1.   The decision to terminate shall be declared fair where the employer has complied with the applicable procedural requirements and provides proof of the existence of the legal ground stated in the written notice. If the employer fails to provide proof, the decision shall be declared unfair.
2.   The decision to terminate shall be null and void:
…
(b)
where there has been an abuse of law in circumvention of the provisions laid down for collective redundancies, in the cases referred to in the last subparagraph of Article 51(1) [of the Workers’ Statute];
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
On 31 October 2016, UQ began working as a quality controller for Marclean Technologies. Like all other workers engaged by the latter she carried out her tasks within the Sandhar Group, where she carried out quality control work on the parts manufactured by that company.
On 28 May 2018, UQ was declared temporarily unable to work.
On 31 May 2018, Marclean Technologies informed UQ of a dismissal decision. On the date of that dismissal, Marclean Technologies recognised the unfairness of that decision and that company subsequently paid UQ compensation which, according to it, is due in cases in which a dismissal is declared unfair by court order.
On 11 June 2018, UQ brought before the Juzgado de lo Social n.
o
3 de Barcelona (Social Court No 3, Barcelona, Spain), the referring court, an action against her dismissal, seeking a declaration as to the nullity, or, in the alternative, the unfairness of that dismissal.
Between 31 May and 14 August 2018, seven persons ceased working for Marclean Technologies. Four of them ceased working for reasons not attributable to the individual worker concerned, two ceased working voluntarily and the last one ceased working due to the expiry of his temporary contract.
On 15 August 2018, 29 other persons employed by Marclean Technologies ceased working for that company. On that same date, Marclean Technologies ceased its activities entirely. On 16 August 2018, those 29 persons began working for Risk Steward SL.
Before the referring court, Marclean Technologies produced documents according to which those 29 persons had submitted voluntary resignations, dated 26 July 2018, with effect from 15 August 2018.
For her part, UQ claimed that, since those resignations were simultaneous and, in this way, the workers concerned are not entitled to unemployment benefits, that situation comprised, in actual fact, a covert collective redundancy. Therefore, her dismissal should be considered as being null and void, pursuant to Article 122(2) of the Law 36/2011 governing social jurisdiction.
Marclean Technologies countered that UQ’s dismissal was motivated not only by a fall in that company’s activity, but also by breaches of the employment contract by that worker, as well as by other workers who were also dismissed.
By an order of 6 February 2019, the referring court found that between 30 and 35 workers had been made redundant, which could, in its view, be categorised as a ‘collective redundancy’ within the meaning of Article 1(1), first subparagraph, (a) of Directive 98/59. The referring court points out that the law transposing that directive into Spanish law refers to a period of 90 days. In that regard, it specifies that its questions do not concern whether the Spanish legislation is more favourable than that directive in this respect.
That court harbours doubts regarding the definition of the reference period of 30 or 90 days to take into account to consider that the termination of employment contracts constitute a ‘collective redundancy’ within the meaning of Article 1(1), first subparagraph, (a) of Directive 98/59. That court points out that, during the 90 days from the date of UQ’s dismissal, 35 terminations for Marclean Technologies could be taken into account for the calculation of the number of dismissals, within the meaning of Article 1(1), first subparagraph, (a)(ii) of that directive.
However, the referring court states that the Tribunal Supremo (Supreme Court, Spain), in the context of the interpretation of Article 51(1) of the Workers’ Statute, has taken the view that the period of 90 days referred to in that provision must be calculated by referring exclusively to the period preceding the date of the disputed dismissal.
Furthermore, the final subparagraph of Article 51(1) of the Workers’ Statute would allow account being taken of terminations of employment after the disputed dismissal, but only in the case where the employer has acted abusively. That provision is intended, in the referring court’s view, to combat the abusive behaviour of ‘staggering’ the dismissals in order to avoid the consultation and participation of workers’ representatives.
According to the referring court, it would be possible to achieve that objective of consultation and participation more effectively by taking the reference period into account both before and after the date of dismissal of the worker concerned, which would allow that worker to rely on other individual dismissals, of which he or she might be unaware at the time of his or her own dismissal, but which, subsequently, when added to that, reach the number required to constitute the existence of a collective redundancy, within the meaning of Directive 98/59.
In that regard, Article 1(1), first subparagraph, (a) of that directive should be interpreted autonomously. There is nothing to prevent the reference period laid down in that provision from being taken into account to its fullest extent, namely for terminations of employment before or after the individual dismissal at issue, that period even being able to be calculated in part before and in part after that dismissal.
In those circumstances, the Juzgado de lo Social n.
o
3 de Barcelona (Social Court No 3, Barcelona) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must Article 1(1), first subparagraph, (a)(i) and (ii) of Directive [98/59] be interpreted as meaning that the reference period of 30 or 90 days laid down as a condition for the existence of collective redundancies must always be calculated retrospectively from the date of the individual dismissal at issue?
(2)
May Article 1(1), first subparagraph, (a)(i) and (ii) of Directive 98/59 be interpreted as meaning that the reference period of 30 or 90 days laid down as a condition for the existence of collective redundancies may be calculated prospectively from the date of the individual dismissal at issue without the need for subsequent terminations to be regarded as abusive?
(3)
May the reference periods in Article 1(1), first subparagraph, (a)(i) and (ii) of Directive 98/59 be interpreted in such a way as to permit account to be taken of dismissals or terminations taking place within 30 or 90 days of the dismissal at issue as falling at some point within those periods?’
Consideration of the questions referred
By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 1(1), first subparagraph, (a) of Directive 98/59 must be interpreted as meaning that, in order to assess whether a disputed individual dismissal is part of a collective redundancy, the reference period of 30 to 90 days laid down in that provision must be calculated by taking into account either (i) exclusively a period before that individual dismissal, (ii) also a period after that dismissal, not only in the event of abuse but also in the absence of abuse, or (iii) any period of 30 or of 90 days during which that individual dismissal occurred.
Article 1(1), first subparagraph, (a) of Directive 98/59 specifies the concept of ‘collective redundancies’ as dismissals effected by an employer for one or more reasons not related to the individual worker concerned provided that certain conditions concerning numbers and periods of time are satisfied (judgments of 10 December 2009, Rodríguez Mayor and Others,
C‑323/08
,
EU:C:2009:770
, paragraph
, and of 22 February 2018, Porras Guisado,
C‑103/16
,
EU:C:2018:99
, paragraph
).
In the present case, it is clear from the order for reference that the Spanish legislature adopted a reference period of 90 days. In accordance with Article 1(1), first subparagraph, (a)(ii) of Directive 98/59, the number of redundancies which occurred, to consider that a collective redundancy exists, within the meaning of that directive must, over such a reference period, be at least equal to 20, irrespective of the number of workers normally employed in the establishments concerned.
It is appropriate to examine in which way the reference period laid down by the national legislation must be taken into account from a temporal standpoint.
In that regard, with a view to calculating the thresholds set in Article 1(1), first subparagraph, (a)(i) and (ii) of Directive 98/59, it should be recalled that that directive cannot be interpreted as meaning that the methods for calculation of those thresholds, and therefore the thresholds themselves, are within the discretion of the Member States, since such an interpretation would allow the latter to alter the scope of that directive and thus to deprive it of its full effect (judgments of 18 January 2007, Confédération générale du travail and Others,
C‑385/05
,
EU:C:2007:37
, paragraph
, and of 11 November 2015, Pujante Riviera,
C‑422/14
,
EU:C:2015:743
, paragraph
).
The referring court envisages, in its questions, three possible methods for determining whether the number of dismissals required in Article 1(1), first subparagraph, (a) of Directive 98/59 has been met. It refers, in the first place, to two methods consisting, if an individual dismissal is disputed, of calculating the reference period, by taking account of either exclusively the period before that dismissal, or also the period after that dismissal, in the case of abuse. In the second place, according to the third method which that court suggests, the reference period consists of any period of 30 or 90 days during which the disputed individual dismissal occurred, without the distinction of whether that period is before, after or in part before or after that individual dismissal being established.
However, it should be noted that neither the first nor the second method put forward by the referring court complies with Directive 98/59.
First, the very wording of Article 1(1), first subparagraph, (a) of that directive does not contains any reference of a temporal limit exclusively before or after the disputed individual dismissal to calculate the number of dismissals which occurred.
Secondly, and moreover, the application of the first two methods presented by the referring court would be liable to undermine the purpose of Directive 98/59, which seeks, as is apparent from recital 2 thereof, inter alia, to afford greater protection to workers in the event of collective redundancies.
To limit the reference period to either exclusively the period before the disputed individual dismissal, or also to the period after that dismissal in the case of abuse, could restrict the rights of the workers concerned, in so far as those two methods would prevent taking account of dismissals which occurred within a 30 or 90 day period, but outside of that period before or of the period after that individual dismissal, even if the total number of dismissals surpassed the number required by Article 1(1), first subparagraph, (a) of Directive 98/59.
In contrast, as the Advocate General states in point 32 of his Opinion, it can be inferred from the background and purpose of that directive that it dictates that such a period should be continuous.
As regards the third method presented by the referring court, according to which the reference period is comprised of any period of 30 or 90 days during which the disputed individual dismissal occurred, it must be stated that that method appears as being the only one which complies with the purpose of that directive, such as recalled in paragraph 31 of the present judgment and with respect to its practical effect.
The full effect of that directive would be limited, contrary to its intended purpose, if it was interpreted as meaning that the national courts are unable to take account of dismissals which occurred before or after the date of the disputed individual dismissal with a view to establishing, or not, the existence of a collective redundancy within the meaning of that directive.
Consequently, as the European Commission has pointed out in its written observations, it is necessary to examine the period covering the disputed individual dismissal and during which the largest number of dismissals were effected by the employer for one or more reasons not related to the individual workers concerned, within the meaning of Article 1(1), first subparagraph, (a) of Directive 98/59.
In the light of the foregoing considerations, the answer to the questions referred is that Article 1(1), first subparagraph, (a) of Directive 98/59 must be interpreted as meaning that, in order to assess whether a disputed individual dismissal forms part of a collective redundancy, the reference period laid down in that provision to determine the existence of a collective redundancy must be calculated by taking into account any period of 30 or 90 consecutive days during which that individual dismissal occurred and during which the largest number of dismissals were effected by the employer for one or more reasons not related to the individual worker concerned, within the meaning of that provision.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

Article 1(1), first subparagraph, (a) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that, in order to assess whether a disputed individual dismissal forms part of a collective redundancy, the reference period laid down in that provision to determine the existence of a collective redundancy must be calculated by taking into account any period of 30 or 90 consecutive days during which that individual dismissal occurred and during which the largest number of dismissals were effected by the employer for one or more reasons not related to the individual worker concerned, within the meaning of that provision.

[Signatures]
(
*1
)	Language of the case: Spanish.