Opinion of the Advocate General — ECLI:EU:C:2004:139
Date: 2004-03-11
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws;Social Policy
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Portugal

Summary of the Judgment Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Definition of collective redundancy – Termination of contract of employment without the consent of the worker dependent on external circumstances not contingent on the employer’s will – Included (Council Directive 98/59, Art. 1(1)(a)) The concept of ‘redundancy’, as mentioned in Article 1(1)(a) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies, has meaning in Community law and may not be defined by any reference to the laws of the Member States. It has to be interpreted as including not only redundancies for structural, technological or cyclical reasons, but any termination of contract of employment not sought by the worker, and therefore without his consent. Therefore, termination of a contract of employment without the worker’s consent cannot escape the application of the directive just because it depends on external circumstances not contingent on the employer’s will. The objectives of the directive which is designed, inter alia, to strengthen the protection of workers in the case of collective redundancies would be attained only in part if such a termination of a contract of employment were to be excluded from the body of rules laid down by the directive. (see paras 49-50, 52-53, 60, 66, operative part 1)