Opinion of the Advocate General — ECLI:EU:C:1998:435
Date: 1998-09-24
Language of the case: Danish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Denmark

summary, I consider that the second
subparagraph of Article 3(1) and Article 4(4)
of Directive 75/129, as amended by Directive
92/56, apply solely to the case of collective
redundancies due to the termination of the
activities of an establishment subsequent to
the date on which a judicial decision is given,
which is the necessary consequence of that
decision.
21 — I would point out that in its judgment in Joined Cases
C-58/95, C-75/96, C-112/95, C-119/95, C-123/95, C-135/95,
C-140/95, C-141/95, C-154/95 and C-157/95 Gallotti and
Others [1996] ECR 1-4345, paragraph 14, the Court empha­
sised that the Member States are required, within the bounds
of the freedom left to them by the third paragraph of Article
189 of the EC Treaty, to choose the most appropriate forms
and methods to ensure the effectiveness of directives (see
also Case 48/75 Royer [1976] ECR 497, paragraph 75), whilst
Article 5 of the Treaty requires the Member States, in the
abovementioned conditions, to take all measures necessary
to guarantee the application and effectiveness of Community
law (see Cases C-382/92 Commission v United Kingdom
[1994] ECR I-2435, paragraph 55, and C-383/92 Commis­
sion v United Kingdom [1994] ECR 1-2479, paragraph 40).
22 — The Commission underlines the fact that there may be a
judicial decision within the meaning of the Directive not
only in the context of the winding-up procedure but also in
any procedure which, under national law, is aimed at the
overall satisfaction of debts (paiement global) in respect of
the employer's creditors. As stated, it is possible for a judi­
cial decision to be adopted, for example concerning the
maintenance of work-place safety requirements, environ­
mental protection or compliance with special manufacturing
conditions for the protection of public health.
23 — As the Commission noted, moreover, at the hearing, after
the petition has been lodged it is possible that there will be
a settlement between the debtor and creditors and that pros­
pect might result in the postponement of the judicial deci­
sion. Also it should not escape notice that a winding-up
petition will frequently be lodged by a creditor and that
means that the court dealing with the matter will have to
decide whether the petition is well founded which will cer­
tainly have an effect on the length of the procedure.
24 — As the Commission states(both at paragraph 40 of its written
observations and at the hearing), without being contradicted,
the sole fact that the management of the undertaking docs
not appear to have carried out the necessary consultations
with the workers' representatives, despite the fact that it was
contemplating collective redundancies, is sufficient to bring
about the consequences of Article 11 of Law No 414 of 1994
on compensation of workers and Article 12 providing for a
penalty in the form of a fine.
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OPINION OF MR COSMAS — CASE C-250/97
VI — Conclusion
51. Consequently, in view of the foregoing analysis, I would suggest that the Court
answer the question referred to it for a preliminary ruling by the Civilret, Hillerød,
as follows:
On a proper construction of the second subparagraph of Article 3(1) and Article 4(4)
of Council Directive 75/129/EEC of 17 February 1975 on the approximation of the
laws of the Member States relating to collective redundancies, as amended by Council
Directive 92/56/EEC of 24 June 1992, the phrase 'collective redundancies arising
from termination of the establishment's activities as a/where this is a result of a judi­
cial decision' does not cover the case in which the collective redundancies occur on
the same day as that on which the employer filed a winding-up petition and termi­
nated the establishment's activities, and the Skifteret subsequently, albeit without any
deferment other than that resulting from the date which the court set for the hearing,
issues a winding-up order pursuant to the winding-up petition and takes the date of
that winding-up petition as the operative date.
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