# C_2013260EN.01003601.xml

| 7.9.2013 | EN | Official Journal of the European Union | C 260/36 |
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7.9.2013

EN

Official Journal of the European Union

C 260/36

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Request for a preliminary ruling from the Juzgado de lo Social No 33, Barcelona (Spain) lodged on 9 July 2013 — Andrés Rabal Cañas v Nexea Gestión Documental, S.A., Fondo de Garantía Salarial

(Case C-392/13)

2013/C 260/65

Language of the case: Spanish

Referring court

Referring court

Juzgado de lo Social No 33, Barcelona

Parties to the main proceedings

Parties to the main proceedings

Applicant: Andrés Rabal Cañas

Applicant:

Defendants: Nexea Gestión Documental, S.A., Fondo de Garantía Salarial

Defendants:

Questions referred

Questions referred

| 1. | Given that it includes within its ambit all ‘dismissals effected by an employer for one or more reasons not related to the individual workers concerned’, according to the numerical threshold provided for, must the notion of ‘collective redundancies’ in Article 1(1)(a) of Directive 98/59 (1) be interpreted — in view of its Community scope — as prohibiting or precluding a national implementing or transposing provision that restricts the ambit of that notion solely to particular types of termination, namely, those based on ‘economic, technical, organisational or production grounds’, as Article 51(1) of the Workers’ Statute does? |
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1.

Given that it includes within its ambit all ‘dismissals effected by an employer for one or more reasons not related to the individual workers concerned’, according to the numerical threshold provided for, must the notion of ‘collective redundancies’ in Article 1(1)(a) of Directive 98/59 (1) be interpreted — in view of its Community scope — as prohibiting or precluding a national implementing or transposing provision that restricts the ambit of that notion solely to particular types of termination, namely, those based on ‘economic, technical, organisational or production grounds’, as Article 51(1) of the Workers’ Statute does?

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| 2. | For the purposes of calculating the number of dismissals to be taken into account in order to determine whether it is a case of ‘collective redundancies’, as defined in Article 1(1) of Directive 98/59, in the form of either ‘dismissals effected by an employer’ (subparagraph (a)) or ‘terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned. provided that there are at least five redundancies’ (subparagraph (b)), must account be taken of individual terminations by reason of the expiry of fixed-term contracts (on the basis of an agreed date, task or service), as referred to in Article 49(1)(c) of the Workers’ Statute? |
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2.

For the purposes of calculating the number of dismissals to be taken into account in order to determine whether it is a case of ‘collective redundancies’, as defined in Article 1(1) of Directive 98/59, in the form of either ‘dismissals effected by an employer’ (subparagraph (a)) or ‘terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned. provided that there are at least five redundancies’ (subparagraph (b)), must account be taken of individual terminations by reason of the expiry of fixed-term contracts (on the basis of an agreed date, task or service), as referred to in Article 49(1)(c) of the Workers’ Statute?

| 3. | For the purposes of the rule on the non-application of Directive 98/59 laid down in Article [1(2)(a)] thereof, is the concept of ‘collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks’ defined exclusively by the strictly quantitative criterion in Article [1(1)(a)] or does it require the cause of the collective termination also to be derived from the same collective contractual framework for the same duration, service or task? |
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3.

For the purposes of the rule on the non-application of Directive 98/59 laid down in Article [1(2)(a)] thereof, is the concept of ‘collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks’ defined exclusively by the strictly quantitative criterion in Article [1(1)(a)] or does it require the cause of the collective termination also to be derived from the same collective contractual framework for the same duration, service or task?

| 4. | Does the concept of ‘establishment’, as an essential Community law concept for the purposes of defining ‘collective redundancies’ in the context of Article 1(1) of Directive 98/59, and in view of the nature of the directive of a minimum standard as provided in Article 5 thereof, lend itself to an interpretation that allows the national provision implementing or transposing that text into the national legal order, Article 51(1) of the Workers’ Statute in the case of Spain, to relate the ambit of the calculation of the numerical threshold exclusively to the ‘undertaking’ as a whole, thereby excluding situations in which, had the ‘establishment’ been taken as the reference unit, the numerical threshold laid down in that article would have been exceeded? |
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4.

Does the concept of ‘establishment’, as an essential Community law concept for the purposes of defining ‘collective redundancies’ in the context of Article 1(1) of Directive 98/59, and in view of the nature of the directive of a minimum standard as provided in Article 5 thereof, lend itself to an interpretation that allows the national provision implementing or transposing that text into the national legal order, Article 51(1) of the Workers’ Statute in the case of Spain, to relate the ambit of the calculation of the numerical threshold exclusively to the ‘undertaking’ as a whole, thereby excluding situations in which, had the ‘establishment’ been taken as the reference unit, the numerical threshold laid down in that article would have been exceeded?

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(1)  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)

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