Opinion of the Advocate General — ECLI:EU:C:2015:65
Date: 2015-02-05
Language of the case: English
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain;United Kingdom

Summary — Judgment of the Court (Fifth Chamber), 13 May 2015 1. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Meaning of establishment — Autonomous and uniform interpretation (Council Directive 98/59, Art. 1(1)(a)(i) and (ii)) 2. Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Scope — Method of calculating the number of workers made redundant — National legislation laying down an obligation to inform and consult workers in the event of the dismissal, within a period of 90 days, of at least 20 workers from a particular establishment of an undertaking — Lawfulness (Council Directive 98/59, Art. 1(1)(a)(i) and (ii)) 1. The term ‘establishment’ in Article 1(1)(a)(ii) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted in the same way as the term in Article 1(1)(a)(i) of that directive. There is nothing in the wording of Article 1(1)(a) of Directive 98/59 to suggest that a different meaning is to be given to the terms ‘establishment’ or ‘establishments’ in the same subparagraph of that provision. The fact that the legislature offers Member States a choice between the alternative and substantially equivalent options set out in Article 1(1)(a)(i) and (a)(ii) of Directive 98/59 indicates that the term ‘establishment’ cannot have a completely different meaning depending on which option the Member State concerned chooses and such a major difference would be contrary to the need, emphasised in recital 7 in the preamble to Directive 98/59, to promote the approximation of the laws of the Member States relating to collective redundancies. The term ‘establishment’, which is not defined in Directive 98/59, is a term of EU law and cannot be defined by reference to the laws of the Member States. It must, on that basis, be interpreted in an autonomous and uniform manner in the EU legal order. (see paras 26, 38, 40, 41, 53, operative part) 2. Article 1(1)(a)(ii) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as not precluding national legislation that lays down an obligation to inform and consult workers in the event of the dismissal, within a period of 90 days, of at least 20 workers from a particular establishment of an undertaking, and not where the aggregate number of dismissals across all of the establishments or across some of the establishments of an undertaking over the same period reaches or exceeds the threshold of 20 workers. The Court has already held that where an undertaking comprises several entities meeting the criteria set out in the judgment in Rockfon (C‑449/13) and the judgment in Athinaïki Chartopoiïa (C‑270/05), it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the ‘establishment’ for the purposes of Article 1(1)(a) of Directive 98/59. Interpreting the term ‘establishment’ as meaning all of the establishments of an undertaking would, first, be contrary to the objective of ensuring comparable protection for workers’ rights in all Member States and, secondly, entail very different costs for the undertakings that have to satisfy the information and consultation obligations under Articles 2 to 4 of that directive in accordance with the choice of the Member State concerned, which would also go against the EU legislature’s objective of rendering comparable the burden of those costs in all Member States. It follows that the definition in Article 1(1)(a)(i) and (a)(ii) of Directive 98/59 requires that account be taken of the dismissals effected in each establishment considered separately. (see paras 33, 42, 44, 49, 53, operative part)