Opinion of the Advocate General — ECLI:EU:C:1997:478
Date: 1997-10-09
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

summary form, of the nature 
of the duties he is required to perform. 
Whilst a designation of the work might meet 
that requirement in some cases, this may not 
be the case for other types of job, a descrip­
tion of which requires the individual listing 
of the relevant characteristics. Consequently, 
Paragraph 2(1)(5) of the Law of 20 July 1995 
did not correctly transpose Article 2(2)(c)(ii) 
of the directive, with the result that it can 
effectively be relied on by an individual, 
either so that it is applied instead of the 
equivalent domestic provision or so that the 
domestic provision is interpreted in confor­
mity with it. 
The third question 
19. In its third question, the national court 
asks the Court of Justice to interpret the 
expression 'nature or category of the work', 
which, under Article 2(2)(c)(i) of the direc­
tive, is one of the aspects of which an 
employee must be notified. In particular, the 
national court seeks to ascertain whether an 
employee must be able to see, from his clas­
sification in a particular salary grade and 
category of activity, whether he is entitled to 
advancement to a higher grade provided he 
meets certain requirements. 
20. Let me point out, first of all, that, in the 
light of the answer I have suggested to the 
previous question, this question is of no rel­
evance. Given that the national legislature 
was permitted to implement the directive 
without requiring notification of the 'nature 
or category of the work', but only of a brief 
specification or description of the work, and 
that the German legislature chose precisely 
the latter option in Paragraph 2(1)(5) of the 
Law of 20 July 1995, the answer to this ques­
tion no longer seems relevant. However, 
should the Court of Justice take the opposite 
view, I would make the following points. 
21. The directive merely requires an 
employer to inform an employee of his grad­
ing under the contract on commencing 
employment and to notify him of any 
changes which may occur during the course 
of his employment relationship in regard to 
the aspects of the contract notified to him 
initially. I do not believe that the relevant 
Community provision imposes an obligation 
on an employer to provide the sort of infor­
mation which would enable an employee to 
foresee the course of his own career; this 
would depend, in the main, on the applicable 
collective agreement. Moreover, it is signifi­
cant that the directive seeks to ensure that an 
employee is informed, not of every aspect of 
23 — There was perhaps greater justification for that interpreta­
tion in the wording of the Commission proposal, which 
required notification of 'a description of the job and cat­
egory of employment'. See, however, the opinion of the 
Economic and Social Committee, which found the require­
ment 'excessive'. 
I-6919 
OPINION OF MR TESAURO — JOINED CASES C-253/96, C-254/96, C-255/96, C-256/96, C-257/96 A N D C-258/96 
his contract and of all its implications, but 
only of its 'essential aspects' (Article 2(1)). 
Equally significant is the fact that the direc­
tive seeks to provide the employee with a 
'minimum' of information, 24 thereby implic­
itly accepting that further information on the 
legal position of the employee does not fall 
within the terms of the employer's duty of 
notification. 
The fifth question 
22. In its fifth question, the national court 
asks the Court of Justice to interpret Article 
9(2) of the directive, under which, in the case 
of contracts in existence at the time of the 
entry into force of the implementing provi­
sions, an employee is to be given the docu­
ment containing the information listed in 
Article 2 at his own request; in the absence 
of such a request, therefore, the employer is 
not obliged to inform him of the essential 
aspects of his contract. In particular, the Ger­
man court asks the Court of Justice to assess 
the compatibility with the aforesaid provi­
sion of the directive of Paragraph 4 of the 
Law of 20 July 1995 which waives the 
employer's obligation to provide an 
employee with a written document where a 
previous written notification or a previous 
written contract of employment contains the 
information required. 25 In those circum­
stances, the German court argues that, as the 
previous notification is valid, an employer 
who provides a new notification contradict­
ing the previous one must prove the accu­
racy of its contents. 
23. The provision in question obviously rep­
resents a compromise between the employ­
ee's right to be informed, a right in respect of 
which any discrimination between employ­
ees taken on before and those taken on after 
the transposition of the directive 26 is unac­
ceptable, and the need to avoid imposing an 
excessive bureaucratic burden on the 
employer, who would otherwise be obliged 
to provide potentially large numbers of 
employees with written notification within a 
short period. 
The directive strikes a balance between those 
two divergent interests in that it makes noti­
fication subject to a request from the 
employee. As this constitutes a derogation 
from the fundamental obligation contained 
in the directive, I believe that the national 
legislature cannot extend its scope beyond 
what is expressly laid down. The German 
legislation in question allows an employer 
not to notify an employee, even at his 
request, wherever previous documents are in 
existence from which the information 
required by the directive is apparent. The 
employee's right to information is thus unac-
ceptably compromised, compelling him to 
24 — This can be inferred from the fact that Article 2(2) requires 
that the information cover 'at least' the aspects listed there­
under and that Article 2(2)(j) allows the content of the 
information to be supplemented by reference to bodies 
with which collective agreements have been concluded. 
25 — See footnote 8 for the wording of the second sentence of 
Paragraph 4. 
26 — The need for equal treatment is emphasized by J. Clark and 
M. Hall in The Cinderella Directive?', cited in footnote 12, 
page 111. 
I - 6920 
KAMPELMANN AND OTHERS v LANDSCHAFTSVERBAND WESTFALEN-LIPPE AND OTHERS 
deduce his contractual position from a num­
ber of previous documents, to the detriment 
of the precision which he exhibited in 
requesting information from his employer. 
24. Turning to the other matter raised in the 
fifth question, namely the binding nature of 
written notification given prior to the trans­
position of the directive, I would refer to my 
previous comments in connection with the 
first and fourth questions. Written notifica­
tion is not a substitute for a contract of 
employment and the obligations (and rights) 
of the parties derive from the employment 
contract alone. A new notification which dif­
fers from the previous one can be justified 
only by a change in some aspect of the con­
tract. Anyone who wishes to rely on such a 
change in court may provide evidence of it 
by producing the new notification in the 
proceedings, subject to the limits and effects 
laid down by the national rules of procedure. 
Conclusion 
25. In the light of the foregoing considerations, therefore, I propose that the 
Court of Justice reply to the questions referred by the Landesarbeitsgericht, Hamm, 
as follows: 
(1) Article 2(2) of Directive 91/533/EEC on an employer's obligation to inform 
employees of the conditions applicable to the contract or employment rela­
tionship is to be interpreted as meaning that its purpose is not to reverse the 
burden of proof where the aspects of the contract or employment relationship 
contained in the written notification are to be relied on in court; that notifica­
tion, although not the source of contractual obligations, constitutes evidence 
to be assessed within the limits and subject to the rules of procedure of the 
national legal system (first and fourth questions). 
(2) Article 2(2)(c) of Directive 91/533 has had direct effect as of 1 July 1993, at 
least in so far as it lays down the minimum obligation on the part of an 
employer to notify to an employee a brief specification or description of his 
work; in the period following the transposition of the directive into national 
law, that article may be relied on in proceedings before the national courts 
where the directive has not been correctly transposed into national law (sec­
ond question). 
I - 6921 
OPINION OF MR TESAURO — JOINED CASES C-253/96, C-254/96, C-255/96, C-256/96, C-257/96 AND C-258/96 
(3) The expression 'nature or category of the work' in Article 2(2)(c)(i) of Direc­
tive 91/533 is not to be interpreted as imposing an obligation on the employer 
to provide the kind of information which would enable an employee to fore­
see the course of his own career (third question). 
(4) Article 9(2) of Directive 91/533 is to be interpreted as precluding the applica­
tion of national legislation, such as the second sentence of Paragraph 4 of the 
German Law implementing the directive, which relieves the employer of the 
obligation to provide an employee with written notification, even if the 
employee requests it, where a previous written notification or a previous writ­
ten contract contains the information required (fifth question). 
I - 6922