Opinion of the Advocate General — ECLI:EU:C:2016:429
Date: 2016-06-09
Language of the case: Greek
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary — Judgment of the Court (Grand Chamber), 21 December 2016 1. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — National legislation conferring upon an administrative authority the power to oppose collective redundancies after assessing the conditions in the labour market, the situation of the undertaking and the interests of the national economy — Lawfulness — Limit — Practical effect of the directive compromised by the specific application of that legislation — Verification by the national court (Council Directive 98/59) 2. Freedom of establishment — Restrictions — National legislation conferring upon an administrative authority the power to oppose collective redundancies after assessing the conditions in the labour market, the situation of the undertaking and the interests of the national economy — Unlawfulness — Acute economic crisis and particularly high national unemployment rate — Irrelevant (Art. 49 TFEU; Charter of Fundamental Rights of the European Union, Arts 16 and 52(1)) 3. Freedom of establishment — Provisions of the Treaty — Scope — National legislation conferring upon an administrative authority the power to oppose collective redundancies after assessing the conditions in the labour market, the situation of the undertaking and the interests of the national economy — Included — No independent examination in the light of the provisions governing the free movement of capital (Arts 49 TFEU and 63 TFEU) 1. Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as not precluding, in principle, national legislation under which, if there is no agreement with the workers’ representatives on projected collective redundancies, an employer can effect such redundancies only if the competent national public authority which must be notified of the projected collective redundancies does not adopt, within the period prescribed by that legislation and after examining the documents in the file and assessing the conditions in the labour market, the situation of the undertaking and the interests of the national economy, a reasoned decision not to authorise some or all of the projected redundancies. The position is different, however, if — a matter which is for the national court to ascertain — in the light of the three assessment criteria to which that legislation refers and of the specific application of them by the public authority, subject to review by the courts having jurisdiction, that legislation proves to have the consequence of depriving the provisions of that directive of their practical effect. Directive 98/59 provides for only a partial harmonisation of the rules for the protection of workers in the event of collective redundancies, that is to say, harmonisation of the procedure to be followed when such redundancies are to be effected. Thus, that directive does not impinge upon the employer’s freedom to effect or refrain from effecting collective redundancies. It does not specify, inter alia, the circumstances in which the employer must contemplate collective redundancies and in no way affects his freedom to decide whether and when he must formulate plans for collective redundancies. Accordingly, the substantive conditions to which the ability of the employer to effect or refrain from effecting collective redundancies might be subject are not covered, in principle, by the provisions of Directive 98/59 and consequently remain a matter for the Member States. However, whilst it is true that Directive 98/59 harmonises only partially the rules for the protection of workers in the event of collective redundancies, the fact remains that the limited character of such harmonisation cannot have the consequence of depriving Articles 2 to 4 of the directive of practical effect. Therefore, a Member State cannot, in particular, adopt a national measure which, although ensuring an enhanced level of protection of workers’ rights against collective redundancies, would, however, have the consequence of depriving Articles 2 to 4 of the directive of their practical effect. That would be so in the case of national legislation under which collective redundancies require the prior consent of a public authority if, on account, for example, of the criteria in the light of which that authority is called upon to take a decision or of the specific way in which it interprets and applies those criteria, any actual possibility for the employer to effect such collective redundancies were, in practice, ruled out. (see paras 29-31, 33, 36-38, 44, operative part 1) 2. Article 49 TFEU must be interpreted as precluding national legislation under which, if there is no agreement with the workers’ representatives on projected collective redundancies, an employer can effect such redundancies only if the competent national public authority which must be notified of the projected collective redundancies does not adopt, within the period prescribed by that legislation and after examining the documents in the file and assessing the conditions in the labour market, the situation of the undertaking and the interests of the national economy, a reasoned decision not to authorise some or all of the projected redundancies. Such national legislation constitutes a significant interference in certain freedoms which economic operators generally enjoy. Consequently, it is such as to render access to the national market less attractive and, following access to that market, to reduce considerably, or even eliminate, the ability of economic operators from other Member States who have chosen to set up in a new market to adjust subsequently their activity in that market or to give it up, by parting, to that end, with the workers previously taken on. Accordingly, such national legislation is liable to constitute a serious obstacle to the exercise of freedom of establishment in the Member State in question. Such a restriction is permissible only if it is justified by overriding reasons in the public interest. Furthermore, such legislation is capable of such justification only if it complies with the fundamental rights the observance of which is ensured by the Court. In the present instance, the national legislation in question entails a limitation on exercise of the freedom to conduct a business enshrined in Article 16 of the Charter of Fundamental Rights of the European Union. The overriding reasons in the public interest that are recognised by the Court include the protection of workers and the encouragement of employment and recruitment. Thus, it has been acknowledged in particular that considerations connected with the maintenance of employment may, under certain circumstances and conditions, be acceptable justifications for national legislation that has the effect of impeding freedom of establishment. In order for that to be so, the restrictions imposed must be appropriate for ensuring attainment of the objective in the public interest which they pursue and must not go beyond what is necessary to attain it. In that regard, the mere fact that a Member State provides, in its national legislation, that projected collective redundancies must, prior to any implementation, be notified to a national authority, which is endowed with powers of review enabling it, in certain circumstances, to oppose the projected redundancies on grounds relating to the protection of workers and of employment, cannot be considered contrary to freedom of establishment as guaranteed by Article 49 TFEU or the freedom to conduct a business enshrined in Article 16 of the Charter. In the first place, such a regime does not have, in any way, the consequence of entirely excluding, by its very nature, the ability of undertakings to effect collective redundancies, inasmuch as it is designed solely to impose a framework on that ability while seeking, in this sensitive area, to reconcile and to strike a fair balance between the interests connected with the protection of workers and of employment, in particular protection against unjustified dismissal and against the consequences of collective dismissals for workers, and those relating to freedom of establishment and the freedom of economic operators to conduct a business enshrined in Articles 49 TFEU and Article 16 of the Charter. When viewed in this light, the establishment of such a framework governing the circumstances in which collective redundancies may be effected can therefore be a valid way of satisfying the requirements stemming from the principle of proportionality and is, therefore, capable of complying, from that perspective, with Article 49 TFEU and Article 16 of the Charter. As regards, in the second place, the particular detailed rules which characterise the aforesaid regime imposing a framework on collective redundancies and, especially, the three criteria which the competent public authority is called upon to take into account for the purpose of deciding whether it opposes collective redundancies, the first of them, namely the criterion of ‘interests of the national economy’, cannot be accepted, because it pursues an economic aim, which cannot constitute a reason in the public interest that justifies a restriction on a fundamental freedom guaranteed by the Treaty. On the other hand, the other two assessment criteria to which the national legislation at issue refers, namely the ‘situation of the undertaking’ and the ‘conditions in the labour market’, do admittedly appear, prima facie, to be capable of relating to the legitimate objectives in the public interest that are constituted by the protection of workers and of employment. However, such criteria are formulated in very general and imprecise terms. Such criteria which are not precise and are not therefore founded on objective, verifiable conditions go beyond what is necessary in order to attain the objectives stated and cannot therefore satisfy the requirements of the principle of proportionality. It follows that a regime providing for scrutiny and opposition such as the regime established by the legislation at issue fails, on account of its particular detailed rules, to comply with the requirements of the principle of proportionality and accordingly infringes Article 49 TFEU. On identical grounds, such legislation also fails to comply with the principle of proportionality laid down in Article 52(1) of the Charter and, therefore, with Article 16 thereof. Furthermore, the fact that the context in a Member State may be one of acute economic crisis and a particularly high unemployment rate is not such as to affect that interpretation. Apart from the possibility that certain obstacles to freedom of establishment resulting from national measures may be justified in the light of certain overriding reasons in the public interest, the Treaties do not, however, provide that that provision of primary law may be derogated from outside those situations or that that provision may purely and simply be disregarded, on account of such a national context. (see paras 55-57, 61, 65, 66, 73-75, 80, 83, 88, 90, 94-100, 102-104, 107, 108, operative part 1 and 2) 3. The situation where a company planning collective redundancies is a company in whose capital a multinational group of companies which is established in another Member State has a majority holding enabling it to exert a definite influence over the decisions of that company and to determine its activities falls within freedom of establishment. Accordingly, even if national legislation conferring upon an administrative authority the power to oppose collective redundancies after assessing the conditions in the labour market, the situation of the undertaking and the interests of the national economy were to have restrictive effects on the free movement of capital, those effects would be the unavoidable consequence of any restriction on freedom of establishment and would not warrant independent examination in the light of Article 63 TFEU on the free movement of capital. (see para. 59)