Opinion of the Advocate General — ECLI:EU:C:2025:202
Date: 2025-03-20
Language of the case: French
Procedure: Reference for a preliminary ruling
Origin: France

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Translation C-249/24 - 1 
Case C-249/24 
Request for a preliminary ruling 
Date lodged: 
4 April 2024 
Referring court: 
Cour de cassation (France) 
Date of the decision to refer: 
3 April 2024 
Appellants: 
RT 
ED 
Respondent: 
Ineo Infracom 
  
[…] JUDGMENT OF THE COURT OF CASSATION, SOCIAL CHAMBER, 
OF 3 APRIL 2024 
1. RT, […] 84320 Entraigues-sur-la-Sorgue, 
2. ED, […] 84300 Cavaillon, 
have respectively lodged Appeals Nos. […] against two judgments delivered 
on 1 February 2022 by the cour d’appel de Nîmes (Court of Appeal, Nîmes) […], 
in the disputes between them and the company Ineo Infracom, […] 21000 Dijon, 
respondent in the appeal on a point of law. 
The appellants each reply, in support of their appeals, on two grounds of appeal in 
cassation. 
EN 
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[…] the Social Chamber of the Court of Cassation, […] has delivered the 
following judgment. 
Joinder 
1 On account of the connection between them, Appeals Nos. [OMISSIS] have been 
joined. 
Facts and procedure 
2 According to the judgments under appeal (Nîmes, 1 February 2022) and the 
submissions, after the company France Télécom informed it of its decision not to 
renew the contract covering the Departments of Gard and Lozère, the company 
Inéo Infracom, pending more lasting solutions, offered to the 82 employees 
attached to the Sud-Est branch temporary posts in other regions from 1 July 2013, 
under the long-distance travelling to work regime provided for in the applicable 
national collective agreement for public works workers of 15 December 1992. 
3 It accordingly notified RT and ED of their long-distance duty travel to the Ivry-
sur-Seine branch and the Vitrolles branch respectively, from 1 July 
to 28 September 2013, and informed them that the address to which they were 
attached for administrative purposes was changing to the city of Nîmes. 
4 The employees refused those changes on 28 June 2013 and, contemporaneously 
with nine other employees, applied to the labour court asking it to terminate their 
employment contracts. 
5 Taking the view that the undertaking’s current activity regularly involved the 
geographical redeployment of site staff as a result of losing or winning contracts 
and that no reduction in staff was planned, the employer and several 
representative trade union organisations concluded, on 29 July 2013, an internal 
mobility agreement. Pursuant to that agreement, two job offers were sent to each 
of the employees who refused them, on 30 September and 30 December 2013 in 
the case of RT, and on 27 November 2013 and 20 January 2014 in the case of ED. 
6 Having been dismissed, along with nine other employees, on economic grounds 
on 10 June 2014 pursuant to Article L. 2242-23 of the code du travail (French 
Labour Code), they brought alternative proceedings before the industrial relations 
court challenging their dismissal. 
7 By judgments of 3 April 2017, a Conseil de prud’hommes (Labour Court, France) 
ruled that RT’s employment contract should be terminated on the ground of fault 
on the part of the employer, ordered the employer to pay to the employee sums by 
way of damages and dismissed ED’s applications. 
8 By judgments of 1 February 2022, the Court of Appeal, setting aside the judgment 
concerning RT and ruling again, dismissed RT’s applications and upheld the 
judgment concerning ED. 
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9 In order to come to that ruling, the Court of Appeal held, first, that the mobility 
agreement signed on 29 July 2013 by the majority of the representative trade 
union organisations within the undertaking after the enactment of 
Law No 2013-504 of 14 June 2013 expressly mentioned that it has been 
negotiated outside the context of any planned staff reduction and the possibility of 
any fraud was excluded. It inferred from this that the employer had not infringed 
Articles 1 and 2 of Council Directive 98/59/EC of 20 July 1998 on the 
approximation of the laws of the Member States relating to collective 
redundancies, since they were not applicable in the absence of collective 
redundancies. 
Examination of the grounds of appeal 
The second ground of appeal 
Wording of the ground of appeal 
10 The employees criticise the judgments for dismissing their application for a 
declaration that the redundancies were void and for dismissing their application 
for payment of sums by way of damages for invalid dismissal and for failing to 
meet the obligation to implement an employment protection plan, when 
‘according to Articles 1 and 2 of Directive No 98/59/EC, where an employer is 
contemplating collective redundancies for one or more reasons not related to the 
individual workers concerned, he or she must begin consultations with the 
workers’ representatives in good time with a view to reaching an agreement; those 
consultations must, at least, cover ways and means of avoiding collective 
redundancies or reducing the number of workers affected, and of mitigating the 
consequences by recourse to accompanying business measures aimed, inter alia, at 
aid for redeploying or retraining workers made redundant; Article 27 of the 
Charter of Fundamental Rights of the European Union establishes the right of 
“workers or their representatives …, at the appropriate levels [to] be guaranteed 
information and consultation in good time in the cases and under the conditions 
provided for by [Union] law and national laws and practices”; Article 21 of the 
European Social Charter provides that “with a view to ensuring the effective 
exercise of the right of workers to be informed and consulted within the 
undertaking, the Parties undertake to adopt or encourage measures enabling 
workers or their representatives, in accordance with national legislation and 
practice … to be consulted in good time on proposed decisions which could 
substantially affect the interests of workers, particularly on those decisions which 
could have an important impact on the employment situation in the undertaking”; 
under the fourth paragraph of Article L. 2242-23, of the Labour Code, as amended 
by Law No 2013-504 of 14 June 2013, “where one or more employees refuse the 
application to their employment contracts of the terms of the internal mobility 
agreement mentioned in the first paragraph of Article L. 2242-21, their dismissal 
is based on economic grounds, shall be declared in accordance with the procedure 
for an individual redundancy for economic reasons and gives the right to support 
and redeployment measures which must be envisaged in the agreement adapting 
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the scope and implementation arrangements of the internal redeployment laid 
down in Articles L. 1233-4 and L. 1233-4-1”; it is for the national court to verify, 
taking into account the whole body of rules of national law and applying the 
methods of interpretation recognised by national law, whether it can arrive at an 
interpretation of that law that ensures the full effect of Articles 1 and 2 of 
Directive 98/59/EC and achieves an outcome consistent with the objective 
pursued by it; where it is impossible to interpret a national rule in a manner 
consistent with Articles 1 and 2 of Directive No 98/59/EC and Articles 21 of the 
European Social Charter and 27 of the Charter of Fundamental Rights of the 
European Union, the national court must disapply that national legislation, since 
that obligation applies to the national court under Articles 1 and 2 of 
Directive No 98/59/EC and Articles 21 of the European Social Charter and 
Article 27 of the Charter of Fundamental Rights of the European Union where the 
dispute is between an employee and an employer which has the status of a public 
authority and under Articles 21 of the European Social Charter and 27 of the 
Charter of Fundamental Rights where the dispute is between an employee and an 
employer who is a private individual; it follows from this that, notwithstanding the 
reference in the fourth paragraph of Article L. 2242-23 of the Labour Code to “an 
individual redundancy for economic reasons”, an employer who, for one or more 
reasons not related to the individual employees concerned, intends to abolish posts 
in the case of their refusal of the professional or geographical mobility proposals 
made to them under an internal mobility agreement is required to establish an 
employment protection plan where the conditions laid down in Article L. 1233-61 
of the Labour Code have been fulfilled; in order to state that the provisions of 
Article L. 1235-10 of the Labour Code on the employment protection plan are 
inapplicable and that the application for the invalidity of the dismissal is 
unjustified, the Court of Appeal held that “according to the fourth paragraph of 
Article L. 2242-23 of the Labour Code, which has since been amended, where one 
or more employees refuse the application to their employment contracts of the 
terms of the internal mobility agreement mentioned in the first paragraph of 
Article L. 2242-21, their dismissal is based on economic grounds, [and] is to be 
declared in accordance with the procedure for an individual dismissal for 
economic reasons” and that “the employee was notified of his individual dismissal 
for economic reasons pursuant to those provisions by letter of 10 June 2014”; it 
inferred from this that “the employer does not appear to have infringed 
Article L. 1233-61 et seq. of the Labour Code on the employment protection plan 
or Articles 1 and 2 of Council Directive 98/59/EC of 20 July 1998 on the 
approximation of the laws of the Member States relating to collective 
redundancies, since they were not applicable in the absence of collective 
redundancies”; in so ruling, when the employer was obliged to implement an 
employment protection plan guaranteeing that employees be informed and 
consulted in good time, as well as guaranteeing support and redeployment 
measures, if the redundancies declared by the employer, irrespective of their status 
as individual redundancies for economic reasons as laid down in 
Article L. 2242-23 of the Labour Code, concerned at least ten employees in the 
same thirty-day period, the Court of Appeal erred in law in its application of the 
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fourth paragraph of Article L. 2242-23 of the Labour Code, as amended by 
Law No 2013-504 of 14 June 2013, by refusing to apply Articles L. 1233-3 of the 
Labour Code, as amended by Law No 2008-67 of 21 January 2008, L. 1233-61 of 
the Labour Code, as amended by Law No 2012-387 of 22 March 2012, 
L. 1233-62 of the Labour Code in the version prior to its amendment by 
Law No 2016-1088 of 8 August 2016, and L. 1235-10 of the Labour Code, as 
amended by Law No 2013-504 of 14 June 2013, as interpreted in the light of 
Articles 1 and 2 of Directive No 98/59/EC, 27 of the Charter of Fundamental 
Rights and 21 of the European Social Charter.’ 
11 In the alternative, they request that the following questions be referred to the 
Court of Justice of the European Union: 
‘Is Article 2 of Directive 98/59/EC of the Council of the European Union 
of 20 July 1998 to be interpreted as meaning that an employer must begin the 
consultations provided for in that article if it plans to make a number of individual 
redundancies for economic reasons owing to the employees’ refusal to consent to 
the amendment of their employment contracts under an internal mobility 
agreement, where the number of redundancies planned over the same period may 
be classified as collective redundancies within the meaning of Article 1[a](i) and 
(ii) of the directive? 
Does the informing or consultation of the works council before the conclusion of 
an internal mobility agreement with representative trade union organisations, 
pursuant to Article L. 2242-21 et seq. of the Labour Code, relieve the employer of 
its obligation to inform and consult the staff representatives, in accordance with 
Article 2(2) to 2(4) of Directive 98/59/EC, in the case of dismissal of employees 
who have refused the application to their contracts of the terms of that agreement, 
where the number of planned redundancies exceeds the number of redundancies 
specified in Article 1(a) of that directive?’ 
Applicable legislation 
European Union law 
12 According to Article 1 of Council Directive 98/59/EC of 20 July 1998 on the 
approximation of the laws of the Member States relating to collective 
redundancies: 
‘1. For the purposes of this Directive: 
(a) “collective redundancies” means dismissals effected by an employer for one 
or more reasons not related to the individual workers concerned where, according 
to the choice of the Member States, the number of redundancies is: 
(i) either, over a period of 30 days: 
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- at least 10 in establishments normally employing more than 20 and less 
than 100 workers; 
- at least 10% of the number of workers in establishments normally 
employing at least 100 but less than 300 workers; 
- at least 30 in establishments normally employing 300 workers or more; 
(ii) or, over a period of 90 days, at least 20, whatever the number of 
workers normally employed in the establishments in question; 
(b) “workers’ representatives” means the workers’ representatives provided for 
by the laws or practices of the Member States. 
For the purpose of calculating the number of redundancies provided for in the first 
subparagraph of point (a), terminations of an employment contract which occur on 
the employer’s initiative for one or more reasons not related to the individual 
workers concerned shall be assimilated to redundancies, provided that there are at 
least five redundancies.’ 
13 Article 2 of Directive 98/59/EC provides that: 
‘1. Where an employer is contemplating collective redundancies, he shall begin 
consultations with the workers’ representatives in good time with a view to 
reaching an agreement. 
2. These consultations shall, at least, cover ways and means of avoiding 
collective redundancies or reducing the number of workers affected, and of 
mitigating the consequences by recourse to accompanying social measures aimed, 
inter alia, at aid for redeploying or retraining workers made redundant. Member 
States may provide that the workers’ representatives may call on the services of 
experts in accordance with national legislation and/or practice. 
3. To enable workers’ representatives to make constructive proposals, the 
employers shall in good time during the course of the consultations: 
(a) supply them with all relevant information and 
(b) in any event notify them in writing of: 
(i) the reasons for the projected redundancies; 
(ii) the number of categories of workers to be made redundant; 
(iii) the number and categories of workers normally employed; 
(iv) the period over which the projected redundancies are to be effected; …’ 
 
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National law 
14 Under the first paragraph of Article L. 2242-21 of the Labour Code, as amended 
by Law No 2013-504 of 14 June 2013, the employer may start negotiations on the 
conditions of the professional or geographical mobility internal to the company as 
part of collective measures of common project organisation without downsizing. 
15 Under Article L. 2242-22 of the Labour Code, as amended by Law No 2013-504 
of 14 June 2013, the agreement resulting from the negotiations provided for in 
Article L. 2242-21 must contain in particular: 
1. Limitations on mobility beyond the geographical area of employment of the 
employee, as specified in the agreement, with respect for the private and family 
life of the employee in accordance with Article L. 1121-1; 
2. Measures to reconcile work and personal and family life and to take into 
account situations related to disability and health constraints; 
3. Accompanying measures for mobility, in particular training activities as well 
as aid for geographical mobility, including employer participation in 
compensation for any loss of purchasing power and transport expenses. 
The terms of the collective agreement concluded under Article L. 2242-21 and the 
present article cannot have the effect of causing a decrease in the level of 
remuneration or personal classification of the employee and must ensure the 
maintenance or improvement of the employee’s in-service training. 
16 According to Article L. 2242-23 of the Labour Code, as amended by 
Law No 2013-504 of 14 June 2013, the collective agreement resulting from the 
negotiations provided for in Article L. 2242-21 must be brought to the attention of 
each of the employees concerned. 
The terms of the agreement concluded under Articles L. 2242-21 and L. 2242-22 
are applicable to the employment contract. Any terms of the employment contract 
which are contrary to the agreement are to be suspended. 
Where, following a consultation phase enabling the employer to take into account 
the personal and family constraints of each of the employees potentially 
concerned, the employer wishes to implement an individual mobility measure 
provided for in the agreement concluded under this article, it must obtain the 
employee’s agreement in accordance with the procedure laid down in 
Article L. 1222-6. 
Where one or more employees refuse the application to their employment contract 
of the terms of the internal mobility agreement referred to in the first paragraph of 
Article L. 2242-21, their dismissal is based on economic grounds, is to be declared 
in accordance with the procedure for an individual dismissal for economic reasons 
and gives the right to support and redeployment measures which must be 
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envisaged in the agreement adapting the scope and implementation arrangements 
of the internal redeployment laid down in Articles L. 1233-4 and L. 1233-4-1. 
17 According to Article L. 2323-6 of the Labour Code, in the version prior to its 
amendment by Law No 2015-994 of 17 August 2015, the works council must be 
informed and consulted before any decision by the employer on matters 
concerning the organisation, management and general running of the undertaking 
and, in particular, on measures likely to affect the volume or structure of the staff, 
working hours, conditions of employment, working conditions and professional 
training. 
18 According to the settled case-law of the Court of Cassation (Soc., 5 May 1998, 
Appeal No 96-13.498, Bull., V, no 219), it follows from a reading of 
Article L. 2323-2 in conjunction with Article L. 2323-6, (formerly L. 431-5 
and L. 432-1) of the Labour Code applicable at the time that the decision taken by 
the employer must be preceded by consultation of the works council where it 
relates to one of the matters or measures referred to in the second of those articles, 
there being no need to distinguish whether the decision at issue is a unilateral 
decision or takes the form of the negotiation of a universally applicable collective 
agreement concerning one of the items legally submitted to the opinion of the 
works council. 
Grounds for the reference for a preliminary ruling 
19 The Court of Justice of the European Union has ruled (CJEU, judgment 
of 21 September 2017, Socha, C-149/16) that Article 1(1) and Article 2 of Council 
Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the 
Member States relating to collective redundancies must be interpreted as meaning 
that an employer is required to engage in the consultations provided for in 
Article 2 when it intends, to the detriment of the employees, to make a unilateral 
amendment to the terms of remuneration which, if refused by the employees, will 
result in termination of the employment relationship, to the extent that the 
conditions laid down in Article 1(1) of that directive are fulfilled. 
20 Moreover, the Court of Justice of the European Union (CJEU, judgment 
of 22 April 2009, Akavan Erityisalojen Keskusliitto AEK and Others, C-44/08) 
has stated that the raison d’être and effectiveness of consultations with the 
workers’ representatives presuppose that the factors to be taken into account in the 
course of those consultations have been determined, given that it is impossible to 
undertake consultations in a manner which is appropriate and consistent with their 
objectives when there has been no definition of the factors which are of relevance 
with regard to the collective redundancies contemplated. Where a decision 
deemed likely to lead to collective redundancies is merely contemplated and 
where, accordingly, such collective redundancies are only a probability and the 
relevant factors for the consultations are not known, those objectives cannot be 
achieved. It has stated that: ‘2. Whether the obligation has arisen for the employer 
to start consultations on the collective redundancies contemplated does not depend 
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on whether the employer is already able to supply to the workers’ representatives 
all the information required in Article 2(3)(b) of Directive 98/59.’ 
21 The fourth paragraph of Article L. 2242-23 of the Labour Code, which provides 
that dismissal based on the employee’s refusal of the application to his or her 
contract of the terms of the mobility agreement negotiated must be declared in 
accordance with the procedure for an individual redundancy for economic 
reasons, therefore precludes the application of the provisions of 
Articles L. 1233-28 to L. 1233-33 of the Labour Code on the procedure for 
informing and consulting the works council or staff representatives where the 
employer is contemplating the collective redundancies for economic reasons of at 
least ten employees in the same thirty-day period. 
22 Therefore, the question arises as to whether the dismissals for economic reasons 
based on the refusal by the employees to consent to the terms of a collective 
mobility agreement being applied to their employment contract must be regarded 
as constituting a termination of the employment contract which occurs on the 
employer’s initiative for one or more reasons not related to the individual workers 
concerned, within the meaning of the second subparagraph of Article 1(1) of 
Council Directive 98/59/EC, with the result that they must be taken into account 
for the purpose of calculating the total number of redundancies. 
23 If the first question is answered in the affirmative, where the number of planned 
redundancies exceeds the number of redundancies specified in Article 1(a) of the 
aforementioned directive, does the informing and consultation of the works 
council before the conclusion of an internal mobility agreement with 
representative trade union organisations, pursuant to Article L. 2242-21 et seq. of 
the Labour Code, relieve the employer of its obligation to inform and consult the 
staff representatives, in accordance with Article 2(2) and 2(4) of 
Directive 98/59/EC? 
ON THOSE GROUNDS, the Court: 
Having regard to Article 267 of the Treaty on the Functioning of the European 
Union; 
REFERS the following questions to the Court of Justice of the European Union: 
‘1. Is the second subparagraph of Article 1(1) of Council Directive 98/59/EC on 
the approximation of the laws of the Member States relating to collective 
redundancies to be interpreted as meaning that dismissals for economic reasons 
based on the refusal by employees to consent to the terms of a collective mobility 
agreement being applied to their employment contract must be regarded as 
constituting a termination of the employment contract which occurs on the 
employer’s initiative for one or more reasons not related to the individual workers 
concerned, with the result that they must be taken into account for the purpose of 
calculating the total number of redundancies? 
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2. If the first question is answered in the affirmative, where the number of 
redundancies contemplated exceeds the number of redundancies specified in 
Article 1(a) of the aforementioned directive, is Article 2(2) to 2(4) of 
Directive 98/59/EC to be interpreted as meaning that the informing and 
consultation of the works council before the conclusion of an internal mobility 
agreement with representative trade union organisations, pursuant to 
Article L. 2242-21 et seq. of the code du travail (French Labour Code), relieve the 
employer of its obligation to inform and consult the staff representatives?’ 
STAYS the appeal proceedings pending the decision of the Court of Justice of the 
European Union; 
[…]