Opinion of the Advocate General — ECLI:EU:C:2009:480
Date: 2009-07-16
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits (Art. 234 EC; Council Directive 98/59, Arts 1 and 5) 2. Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Concept of collective redundancy (Council Directive 98/59, Art. 1(1)(a)) 3. Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Scope (Council Directive 98/59) 1. Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies provides in Article 5 thereof that it does not affect the right of Member States to apply or to introduce laws, regulations or administrative provisions more favourable to workers or to promote or to allow the application of collective agreements more favourable to workers. However, since a national legislature has chosen to include in the concept of collective redundancies within the meaning of that directive cases which do not fall within the scope of that directive, such as certain types of termination of employment contracts concerning a number of workers not passing the thresholds provided for by Article 1 of Directive 98/59, whilst excluding from that concept cases such as those where the termination of employment contracts of an entire staff, which may concern the same number of workers, occurs as a result of the death of the employer, it is clearly in the Community interest that, in order to forestall future differences of interpretation, that concept and the solutions taken from Community law connected thereto should be interpreted uniformly, irrespective of the circumstances in which they are relied on. (see paras 23, 27-28) 2. Article 1(1) 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 according to which the termination of contracts of employment of a number of workers, whose employer is a natural person, as a result of the death of that employer, is not classified as collective redundancy. The concept of collective redundancies within the meaning of Article 1(1)(a) of the directive presupposes the existence of an employer who contemplated such redundancies and who is capable, first, of carrying out, for that purpose, the acts referred to in Articles 2 and 3 of the directive and, second, of effecting, where appropriate, such redundancies. Moreover, the main objective of Directive 98/59, which is to make collective redundancies subject to prior consultation with the workers’ representatives and the notification of the competent public authority, cannot be fulfilled by classifying as a ‘collective redundancy’ the termination of contracts of employment of the entire staff of an undertaking run by a natural person as a result of the cessation of the activities of that undertaking resulting from the death of the employer, given that that consultation could not have taken place and that it was thus not possible to avoid or to limit terminations of contracts of employment or to attenuate the consequences. (see paras 41, 44, 53, operative part 1) 3. Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies does not preclude national legislation which provides for different compensation depending on whether the workers lost their jobs as a result of the death of the employer or as a result of a collective redundancy. First, the termination of contracts of employment linked to the death of an employer who is a natural person do not fall within the scope of the concept of collective redundancies, within the meaning of Directive 98/59. Second, the directive carries out only a partial harmonisation of the rules for the protection of workers in the event of collective redundancies and does not seek to establish a mechanism of general financial compensation at Community level in the case of loss of employment. In that context, the question of the extent of the compensation for workers in the case of termination of their work does not fall within the scope of the directive. (see paras 55-57, operative part 2)