# C_2014151EN.01001002.xml

| 19.5.2014 | EN | Official Journal of the European Union | C 151/10 |
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Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 14 February 2014 — Union of Shop, Distributive and Allied Workers (USDAW), Mrs B. Wilson v WW Realisation 1 Ltd (in liquidation), Ethel Austin Ltd, Secretary of State for Business, Innovation and Skills

(Case C-80/14)

2014/C 151/13

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicants: Union of Shop, Distributive and Allied Workers (USDAW), Mrs B. Wilson

Defendants: WW Realisation 1 Ltd (in liquidation), Ethel Austin Ltd, Secretary of State for Business, Innovation and Skills

Questions referred

| (1) | (a)
In Article l(l)(a)(ii) of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies( 1 ) (‘the Directive’), does the phrase ‘at least 20’ refer to the number of dismissals across all of the employer's establishments in which dismissals are effected within a 90 day period, or does it refer to the number of dismissals in each individual establishment? (b)
If Article l(l)(a)(ii) refers to the number of dismissals in each individual establishment, what is the meaning of ‘establishment’? In particular, should ‘establishment’ be construed to mean the whole of the relevant retail business, being a single economic business unit, or such part of that business as is contemplating making redundancies, rather than a unit to which a worker is assigned their duties, such as each individual store. | (a) | In Article l(l)(a)(ii) of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies( 1 ) (‘the Directive’), does the phrase ‘at least 20’ refer to the number of dismissals across all of the employer's establishments in which dismissals are effected within a 90 day period, or does it refer to the number of dismissals in each individual establishment? | (b) | If Article l(l)(a)(ii) refers to the number of dismissals in each individual establishment, what is the meaning of ‘establishment’? In particular, should ‘establishment’ be construed to mean the whole of the relevant retail business, being a single economic business unit, or such part of that business as is contemplating making redundancies, rather than a unit to which a worker is assigned their duties, such as each individual store. |
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| (a) | In Article l(l)(a)(ii) of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies( 1 ) (‘the Directive’), does the phrase ‘at least 20’ refer to the number of dismissals across all of the employer's establishments in which dismissals are effected within a 90 day period, or does it refer to the number of dismissals in each individual establishment? | | | | |
| (b) | If Article l(l)(a)(ii) refers to the number of dismissals in each individual establishment, what is the meaning of ‘establishment’? In particular, should ‘establishment’ be construed to mean the whole of the relevant retail business, being a single economic business unit, or such part of that business as is contemplating making redundancies, rather than a unit to which a worker is assigned their duties, such as each individual store. | | | | |

| (2) | In circumstances where an employee claims a protective award against a private employer, can the Member State rely on or plead the fact that the Directive does not give rise to directly effective rights against the employer in circumstances where:
(i)
The private employer would, but for the failure by the Member State properly to implement the Directive, have been liable to pay a protective award to the employee, because of the failure of that employer to consult in accordance with the Directive; and (ii)
That employer being insolvent, in the event that a protective award is made against the private employer and is not satisfied by that employer, and an application is made to the Member State, that Member State would itself be liable to pay any such protective award to the employee under domestic legislation that implements Directive 2008/94/EC of 22 October 2008 on the protection of employees in the event of the insolvency of their employer( 2 ), subject to any limitation of liability imposed on the Member State's guarantee institution pursuant to Article 4 of that Directive? | (i) | The private employer would, but for the failure by the Member State properly to implement the Directive, have been liable to pay a protective award to the employee, because of the failure of that employer to consult in accordance with the Directive; and | (ii) | That employer being insolvent, in the event that a protective award is made against the private employer and is not satisfied by that employer, and an application is made to the Member State, that Member State would itself be liable to pay any such protective award to the employee under domestic legislation that implements Directive 2008/94/EC of 22 October 2008 on the protection of employees in the event of the insolvency of their employer( 2 ), subject to any limitation of liability imposed on the Member State's guarantee institution pursuant to Article 4 of that Directive? |
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| (i) | The private employer would, but for the failure by the Member State properly to implement the Directive, have been liable to pay a protective award to the employee, because of the failure of that employer to consult in accordance with the Directive; and | | | | |
| (ii) | That employer being insolvent, in the event that a protective award is made against the private employer and is not satisfied by that employer, and an application is made to the Member State, that Member State would itself be liable to pay any such protective award to the employee under domestic legislation that implements Directive 2008/94/EC of 22 October 2008 on the protection of employees in the event of the insolvency of their employer( 2 ), subject to any limitation of liability imposed on the Member State's guarantee institution pursuant to Article 4 of that Directive? | | | | |

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( 1 )  OJ L 225, p. 16

( 2 )  OJ L 283, p. 36

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