Opinion of the Advocate General — ECLI:EU:C:2012:160
Date: 2012-03-22
Language of the case: English
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling - inadmissible
Origin: United Kingdom

Summary – Judgment of the Court (Third Chamber), 18 October 2012 1. Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Scope – Workers in public administrations or public law establishments – Civilian staff of a military base – Not included – Military base belonging to a non-member country (Council Directive 98/59, Art. 1(2)(b)) 2. Questions referred for a preliminary ruling – Jurisdiction of the Court – Provisions of EU law rendered directly and unconditionally applicable by national law to situations outside their scope – Inclusion – Limit – Provisions of EU law expressly excluding certain situations from their scope (Art. 267 TFEU; Council Directive 98/59, Art. 1(2)(b)) 1. By virtue of the exclusion laid down by Article 1(2)(b) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies, the dismissal of staff of a military base does not, fall within the scope of that directive, irrespective of whether or not it is a military base belonging to a non-member State. In those circumstances, it is not necessary specifically to take into account the fact that it was a military base belonging to a non-member State, that question having implications in international law. Given that armed forces fall within the public administration or equivalent body, it is clear from the wording of Article 1(2)(b) of Directive 98/59 that the civilian staff of a military base is covered by the exclusion laid down by that provision. Directive 98/59 is aimed at improving the protection of workers and the functioning of the internal market. Whilst the size and functioning of the armed forces does have an influence on the employment situation in a given Member State, considerations concerning the internal market or competition between undertakings do not, however, apply to them. Activities which, like national defence, fall within the exercise of public powers are in principle excluded from classification as economic activity. Article 1(2) of that directive does not in any way lay down a distinction between the public administrations of Member States and those of non-member States. (see paras 34, 39, 41-43) 2. An interpretation by the Court of Justice of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way, in order to ensure that internal situations and situations governed by EU law are treated in the same way. Where the documents from the national court do not contain sufficiently precise indications that national law made the solutions adopted by the relevant EU law automatically applicable, it cannot be considered that the provisions of the EU measure concerned by the question referred for a preliminary ruling have been, as such, made applicable in a direct and unconditional way by national law. It is true that it is in the interests of the Union to safeguard the uniformity of the interpretations of a provision of an EU measure and those of national law which transpose it and make it applicable outside the scope of that measure. However, such is not the case where an EU measure expressly provides a case of exclusion from its scope. If the EU legislature states unequivocally that the measure which it has adopted does not apply to a precise area, it renounces, at least until the adoption of possible new EU rules, the objective seeking uniform interpretation and application of the rules of law in that excluded area. (see paras 47, 51-55)