# C_2020161EN.01002601.xml

| 11.5.2020 | EN | Official Journal of the European Union | C 161/26 |
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11.5.2020

EN

Official Journal of the European Union

C 161/26

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Request for a preliminary ruling from the Corte di appello di Napoli (Italy) lodged on 22 January 2020 — TJ v Balga Srl

(Case C-32/20)

(2020/C 161/35)

Language of the case: Italian

Referring court

Corte di appello di Napoli

Parties to the main proceedings

Appellant: TJ

Respondent: Balga Srl

Questions referred

| 1. | In the event of unlawful collective redundancies, must Article 30 of the [Charter of Fundamental Rights of the European Union] be interpreted as recognising a right to protection qualified by parameters of effectiveness, efficacy, adequacy and deterrence, inasmuch as those requirements are a feature of the penalties laid down by ‘Union law’ to safeguard respect for fundamental values and must be complied with by the piece of national legislation — or national practice — that guarantees concrete penalties for any unjustified dismissal? Consequently, do the abovementioned parameters constitute an external limitation that is relevant and applicable for the decision concluding proceedings in actions falling within the jurisdiction of the national courts for the purposes of ascertaining whether that piece of national legislation or national practice implementing Directive 98/59/EC (1) is in line with EU law? |
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1.

In the event of unlawful collective redundancies, must Article 30 of the [Charter of Fundamental Rights of the European Union] be interpreted as recognising a right to protection qualified by parameters of effectiveness, efficacy, adequacy and deterrence, inasmuch as those requirements are a feature of the penalties laid down by ‘Union law’ to safeguard respect for fundamental values and must be complied with by the piece of national legislation — or national practice — that guarantees concrete penalties for any unjustified dismissal? Consequently, do the abovementioned parameters constitute an external limitation that is relevant and applicable for the decision concluding proceedings in actions falling within the jurisdiction of the national courts for the purposes of ascertaining whether that piece of national legislation or national practice implementing Directive 98/59/EC (1) is in line with EU law?

| 2. | For the purposes of determining the level of protection required by the EU legal order in the event of unlawful collective redundancy, must Article 30 of the [Charter of Fundamental Rights of the European Union] be interpreted by giving ‘due regard’ to, and therefore considering relevant, the material meaning of Article 24 of the revised European Social Charter, referred to in the Explanations [relating to the Charter of Fundamental Rights], as resulting from the decisions of the European Committee of Social Rights? Consequently, does EU law preclude a piece of national legislation or a national practice that, by excluding job reinstatement, limits the protection provided to a purely compensatory remedy characterised by a ceiling value set primarily on the basis of length of service and not making good the damage sustained by a worker as a result of the loss of his or her source of income? |
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2.

For the purposes of determining the level of protection required by the EU legal order in the event of unlawful collective redundancy, must Article 30 of the [Charter of Fundamental Rights of the European Union] be interpreted by giving ‘due regard’ to, and therefore considering relevant, the material meaning of Article 24 of the revised European Social Charter, referred to in the Explanations [relating to the Charter of Fundamental Rights], as resulting from the decisions of the European Committee of Social Rights? Consequently, does EU law preclude a piece of national legislation or a national practice that, by excluding job reinstatement, limits the protection provided to a purely compensatory remedy characterised by a ceiling value set primarily on the basis of length of service and not making good the damage sustained by a worker as a result of the loss of his or her source of income?

| 3. | When assessing the degree of compatibility of domestic legislation implementing or establishing the extent of protection in the event of unlawful collective redundancies (for breach of selection criteria), must the national court therefore consider the content developed by the European Social Charter resulting from the decisions made by its component bodies and, in any event, deem it necessary to provide compensation in full, or at least essentially so, for the financial consequences arising from the loss of the employment contract? |
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3.

When assessing the degree of compatibility of domestic legislation implementing or establishing the extent of protection in the event of unlawful collective redundancies (for breach of selection criteria), must the national court therefore consider the content developed by the European Social Charter resulting from the decisions made by its component bodies and, in any event, deem it necessary to provide compensation in full, or at least essentially so, for the financial consequences arising from the loss of the employment contract?

| 4. | Do Articles 20, 21, 34 and 47 of the [Charter of Fundamental Rights of the European Union] preclude the introduction of a piece of legislation or a practice by a Member State implementing Directive 98/59/EC that imposes a sanctioning system, solely for workers hired after 7 March 2015 and involved in a single procedure, that excludes job reinstatement and, in any event, relief from the consequences arising from the loss of income and the loss of social security cover, unlike the protection afforded to other workers subject to the same procedure but hired before that date? Can such a system recognise only compensation in the form of an amount determined primarily on the basis of length of service and therefore apply a different penalty based on the date of hiring, so as to create different levels of protection based on the abovementioned criterion and not on the consequences actually sustained as a result of the unjustified loss of a worker’s source of income? |
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4.

Do Articles 20, 21, 34 and 47 of the [Charter of Fundamental Rights of the European Union] preclude the introduction of a piece of legislation or a practice by a Member State implementing Directive 98/59/EC that imposes a sanctioning system, solely for workers hired after 7 March 2015 and involved in a single procedure, that excludes job reinstatement and, in any event, relief from the consequences arising from the loss of income and the loss of social security cover, unlike the protection afforded to other workers subject to the same procedure but hired before that date? Can such a system recognise only compensation in the form of an amount determined primarily on the basis of length of service and therefore apply a different penalty based on the date of hiring, so as to create different levels of protection based on the abovementioned criterion and not on the consequences actually sustained as a result of the unjustified loss of a worker’s source of income?

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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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