Opinion of the Advocate General — ECLI:EU:C:2015:544
Date: 2015-09-03
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (First Chamber), 11 November 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — The need for a preliminary ruling and relevance of the questions referred — Assessment by the national court (Art. 267 TFEU) 2. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of collective redundancies — Concept of workers ‘normally’ employed’ by the establishment concerned — Workers employed under a contract concluded for a fixed term or a specific task — Included (Council Directive 98/59, Art. 1(1), first para., (a)) 3. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Threshold of at least five redundancies — Method of calculation — Whether it is necessary to take account of terminations of employment contracts which may be assimilated to redundancies — No such need — Limited to redundancies sensu stricto (Council Directive 98/59, Art. 1(1), first para., (a) and (2)) 4. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Concept of redundancy — Significant changes to essential elements of an employment contract for reasons not related to the individual employee concerned — Included (Council Directive 98/59, Art. 1(1), first para., (a)) 1. See the text of the decision. (see para 20) 2. The first subparagraph of Article 1(1)(a) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that workers employed under a contract concluded for a fixed term or a specific task must be regarded as forming part of the workers ‘normally’ employed, within the meaning of that provision, at the establishment concerned. First, that provision does not make any distinction on the basis of the length of time for which such workers are employed. Any different interpretation is liable to deprive all the workers employed by that establishment of the rights conferred on them by the directive and thus undermine its effectiveness. Second, persons employed under a contract concluded for fixed term or a specific task and whose contracts end in due course with the expiry of the fixed period or the completion of the task may enjoy the same protection as that conferred on workers employed on a permanent basis if they are in an analogous position, that is, if the employment relationship is terminated before the expiry of the term stipulated in the contract or before the task for which they were employed is completed. Lastly, by making the application of the rights conferred on workers by the provision in question subject to quantitative criteria, the EU legislature intended to take account of the overall number of employees of the establishments in question in order to avoid imposing an excessive burden on employers that is disproportionate to the size of their establishment. However, for the purpose of calculating the number of employees of an establishment as regards the application of Directive 98/59, the nature of the employment relationship is irrelevant. (see paras 32, 35, 38-41, operative part 1) 3. In order to establish whether there is a ‘collective redundancy’, within the meaning of the first subparagraph of Article 1(1)(a) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies, thus giving rise to the application of the directive, the condition laid down in the second subparagraph of that provision that ‘there [be] at least five redundancies’ must be interpreted as relating not to terminations of employment contracts that may be assimilated to redundancies but only to redundancies sensu stricto. As the second subparagraph of Article 1(1) of Directive 98/59 sets out the method of calculating ‘redundancies’ as defined in the first subparagraph of Article 1(1)(a) and the latter provision establishes the ‘redundancy’ thresholds below which the directive is not applicable, any other reading which has the effect of extending or restricting the scope of the directive would deprive the condition in question, namely that ‘there [be] at least five redundancies’, of any effectiveness. Moreover, that interpretation is confirmed by the purpose of Directive 98/59. Thus, it is those ‘true’ redundancies which the EU legislature intended to cover by the adoption of provisions relating to collective redundancies. (see paras 44-46, operative part 2) 4. Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that the fact that an employer — unilaterally and to the detriment of the employee — makes significant changes to essential elements of his employment contract for reasons not related to the individual employee concerned falls within the definition of ‘redundancy’ for the purpose of the first subparagraph of Article 1(1)(a) of the directive. First, having regard to the objective of Directive 98/59, which is, as is apparent from recital 2 in the preamble thereto, inter alia, to afford greater protection to workers in the event of collective redundancies, a narrow definition cannot be given to the concepts that define the scope of that directive, including the concept of ‘redundancy’ in the first subparagraph of Article 1(1)(a) thereof. Second, by harmonising the rules applicable to collective redundancies, the EU legislature intended both to ensure comparable protection for employees’ rights in the different Member States and to harmonise the costs which such protective rules entail for EU undertakings. The concept of ‘redundancy’ in the first subparagraph of Article 1(1)(a) of Directive 98/59 directly determines the scope of the protection and the rights conferred on workers under that directive. That concept therefore has an immediate bearing on the costs which such protection entails. Accordingly, any national legislative provision or any interpretation of that concept to the effect that the termination of an employment contract is not a ‘redundancy’ for the purpose of Directive 98/59 would alter the scope of the directive and thus deprive it of its full effect. (see paras 51, 53-55, operative part 3)