Abstract;Judgment — ECLI:EU:C:2024:596
Date: 2024-07-11
Language of the case: Spanish
Court formation: Second Chamber
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-196/23 – 1 
Case C-196/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
24 March 2023 
Referring court:  
Tribunal Superior de Justicia de Cataluña (Spain) 
Date of the decision to refer:  
20 January 2023 
Applicants:  
CL 
GO 
GN 
VO 
TI 
HZ 
DN 
DL 
Defendants:  
DB 
Fondo de Garantía Salarial (Fogasa) 
  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-196/23 
 
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Subject matter of the main proceedings 
Social policy – Protection of workers – Collective redundancies – Charter of 
Fundamental Rights of the European Union – Directive 98/59/EC – Termination 
of contracts of employment as a result of the retirement of the employer 
Subject matter and legal basis of the request 
Protection of workers – Collective redundancies – Charter of Fundamental Rights 
of the European Union – Articles 27 and 30 – Directive 98/59/EC – Articles 1 and 
2 – Case-law of the Court of Justice – Termination of contracts of employment as 
a result of the retirement of the employer – Period of consultation with workers’ 
representatives – Horizontal effect of Directive 98/59/EC 
Questions referred for a preliminary ruling 
1) Is legislation such as the Spanish legislation (Article 49(1)(e) of Real 
Decreto Legislativo 2/2015 por el que se aprueba el texto refundido de la Ley del 
Estatuto de los Trabajadores (Royal Legislative Decree 2/2015 approving the 
consolidated text of the Law on the Workers’ Statute) of 23 October 2015), which 
does not establish a period of consultation in situations where contracts of 
employment in excess of the number laid down in Article 1 of that directive are 
terminated as a result of the retirement of the natural person employer, compatible 
with 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? 
2) If the answer to the preceding question is in the negative, does Directive 
98/59 have direct horizontal effect between individuals? 
Provisions of European Union law relied on 
Treaty on the Functioning of the European Union: Article 267(b). 
Charter of Fundamental Rights of the European Union (‘the Charter’): Articles 27 
and 30. 
Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of 
the Member States relating to collective redundancies: Articles 1(1) and 2. 
Judgments of the Court of Justice of the European Union of 21 December 2016, 
AGET Iraklis (C-201/15, EU:C:2016:972, paragraphs 27 to 32); of 12 October 
2004, Commission v Portugal (C-55/02, EU:C:2004:605, point 1) of the operative 
part; of 11 November 2015, Pujante Rivera (C-422/14, EU:C:2015:743, point 2) 
of the operative part; and of 10 December 2009, Rodríguez Mayor and Others 
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(C-323/08, EU:C:2009:770, paragraphs 41 to 44) and points 1 and 2 of the 
operative part. 
Provisions of national law and case-law relied on 
Consolidated text of the Law on the Workers’ Statute, approved by Royal 
Legislative Decree 2/2015 of 23 October 2015 (‘ET’): Articles 49(1)(g) and 51(1) 
and (2). 
Judgment of the Tribunal Supremo (Supreme Court, Spain) of 17 October 2016, 
Rec. 36/20. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 10 July 2020, the applicants brought proceedings against the defendant 
business and Fogasa (Fondo de Garantía Salarial (Wages Guarantee Fund, Spain)) 
as a result of their dismissal, which occurred on 6 July 2020. 
2 The application sought a declaration that the constructive dismissals of the 
applicants by the business on 6 July 2020 constituted invalid dismissal, and an 
order imposing the corresponding legal consequences on the business and, in the 
alternative, a declaration of unfair dismissal and an order imposing the ensuing 
legal consequences on the business. 
3 On 12 January 2022, the Juzgado de lo Social n.º 1 de Barcelona (Social Court 
No 1, Barcelona, Spain) delivered a judgment dismissing the claimants’ 
application against the defendant business (in the person of its sole successor in 
title). 
4 On 17 June 2020, with effect from 17 July 2020, the claimants were informed that 
their employment contracts had been terminated as a result of the retirement of 
their employer. On 17 July 2020, the claimants were removed from the general 
social security scheme. 
5 The employer retired on 3 August 2020. The employer’s retirement entailed the 
termination of 54 contracts, affecting 8 establishments, including the Alcarrás 
(Lérida) establishment where the applicants worked. The defendant died on 
26 March 2021. His sole heir was DB, who accepted the inheritance on the basis 
of liability only for the debts of the estate, and it is not possible to reinstate the 
applicants. 
The essential arguments of the parties in the main proceedings 
6 The applicants argue that their dismissals are invalid because they were not 
preceded by a period of consultation as provided for in Article 51 ET, since the 
retirement of the natural person employer entailed the termination of 54 contracts, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-196/23 
 
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which affected 8 establishments, including the Alcarrás establishment with their 8 
employment contracts. Article 2 of Directive 98/59 was infringed because there 
was no period of consultation with the workers’ representatives. 
7 The defendants argued that the Spanish legislation is compatible with Directive 
98/59 and that, in any event, it has no direct horizontal effect between individuals, 
without prejudice to the possible existence of State liability. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 It is clear from recital 2 of Directive 98/59 that that directive is designed to 
strengthen the protection of workers in the event of collective redundancies. 
Whilst, by harmonising the rules applicable to collective redundancies, the EU 
legislature sought both to ensure comparable protection for workers’ rights in the 
various Member States and to harmonise the costs which such protective rules 
entail for EU undertakings, that directive is nevertheless also intended to provide 
minimum protection with regard to informing and consulting workers in the event 
of collective redundancies and the Member States remain free to adopt national 
measures that are more favourable to those workers (Case C-201/15, 
paragraphs 27 and 32). 
9 In its judgment in Case C-55/02, Commission v Portugal, the Court held that, by 
restricting the concept of collective redundancies to redundancies for structural, 
technological or cyclical reasons, and by failing to extend that concept to 
dismissals for any reason not related to the individual workers concerned, the 
Portuguese Republic had failed to fulfil its obligations under Articles 1 and 6 of 
Directive 98/59. 
10 Furthermore, in Rodríguez Mayor and Others (C-323/08), on whether Directive 
98/59 applies where an employer has died, the Court held that Article 1(1) of the 
directive does not preclude national legislation according to which the termination 
of the 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, meaning that different compensation may be established 
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. The Court states in particular 
that the concept of collective redundancies 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. 
Similarly, according to Article 2(2) of the directive, those consultations are to 
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. Lastly, according to Articles 2(3) and 3(1) of 
that directive, employers are to notify the competent public authority in writing of 
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any projected collective redundancies and to notify them of the factors and 
information mentioned in those provisions (paragraphs 41 and 43 and operative 
part of the judgment cited). 
11 Accordingly, in contrast to the situation that gave rise to the judgment in 
C-323/08, that is to say, the death of the employer, in the scenario before us – the 
termination of contracts of employment as a result of the employer’s retirement – 
the consultations could have taken place and it was possible at least to mitigate the 
consequences of those terminations. 
12 Specifically, it is necessary to determine whether or not the termination of the 
applicants’ eight contracts of employment (all those at the establishment) as a 
result of the voluntary retirement of the employer, the natural person defendant, 
who was succeeded by his sole heir, should have been dealt with as a collective 
redundancy. 
13 The retirement of the employer is a reason for termination of the contract of 
employment not related to the worker (Article 49(1)(g) ET). 
14 Spanish law does not envisage the holding of consultations where the retirement 
of a natural person employer presupposes the termination of a number of contracts 
of employment above the threshold under Directive 98/59, and that termination is 
not subject to the collective redundancy procedure under Article 51 ET, which 
transposes Directive 98/59. 
15 Under Article 51 ET, collective redundancy is confined to situations where there 
are economic, technical, organisational or production grounds, provided it affects 
a particular number of workers, but the article does not cover other situations, 
such as that before us, where contracts of employment are terminated at the 
initiative of the employer for reasons not related to the wishes of the workers, in 
which the number of people affected may only be taken into account if any of the 
dismissals is on economic, technical, organisational or production grounds. 
16 The concept of collective redundancies within the meaning of Article 1(1)(a) of 
Directive 98/59, presupposes: 
1) the existence of an employer; 
2) who contemplates redundancies; 
3) that those redundancies meet the requirements concerning numbers and 
periods of time; 
4) that the employer in question is able to hold a consultation and to negotiate 
with the workers’ representatives. 
17 Each and every one of those requirements is satisfied in the specific situation of an 
employer retiring voluntarily, provided for in Article 49(1)(g) ET. However, in 
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those circumstances Spanish law does not require a consultation period in order at 
least to mitigate, if not to prevent, the consequences of termination of the 
contracts of employment. The first question is referred for a preliminary ruling for 
that reason. 
18 Should the Court find that the Spanish legislation is not compatible with EU law, 
the question arises as to whether the directive has horizontal effect. Directive 
98/59 implements Article 30 of the Charter and, therefore, a fundamental right, 
namely the right of workers to appropriate protection in the event of dismissal, 
and also Article 27 of the Charter, which governs workers’ rights to be informed 
and consulted. Accordingly, the question arises as to whether or not, in the event 
that the national legislation infringes Directive 98/59, that directive has horizontal 
effect, that is to say, effect between individuals. 
19 In that respect, the Supreme Court, Spain held as follows in its judgment of 
17 October 2016: ‘In addition to regulations, since Van Duyn (Case C-41/74), the 
possible direct effect of EU law has extended – although to a very limited extent – 
to cover another part of secondary law, with establishment of the test according to 
which directives may be applied directly in the Member States if they have not 
been implemented or have been implemented incorrectly. That said, there can be 
no direct effect in the context of private relations, since “a directive may not of 
itself impose obligations on an individual and may therefore not be relied upon as 
such against such a person”, even though the Court has in some situations allowed 
the right “regulated” by a directive to be applied directly, which can potentially be 
relied upon by and against individuals. It should be noted, however, that: (a) 
strictly speaking, it is not the “horizontal effect” of the directive that has been 
established in law, but the “direct effect” of the right regulated by that directive, to 
the extent that it is a fundamental right of the European Union; and (b) so far as 
the Chamber is aware, such direct effect has been allowed on only four occasions 
(the cases Mangold, Kücükdeveci, Prigge and, very recently, Dansk Industri), all 
of which relate to the general principle of non-discrimination on grounds of age, 
addressed in Directive 2000/98/EC and enshrined in Article 21(1) of the Charter. 
20 In countering the unintended consequences of the fact that directives have no 
“direct” effect between private parties, the principal remedial tool is the principle 
of interpreting national law in conformity with EU law, which the Court has 
defined by stating that the court “has to interpret that law …, as far as possible, in 
the light of the wording and the purpose of the directive so as to achieve the result 
it has in view and thereby comply with the third paragraph of Article 189 of the 
Treaty” – now Article 288 TFEU. Summarising the foregoing, where the terms of 
a directive that has not been transposed within the time limit or has been 
transposed incorrectly are clear, decisive and unconditional, different possibilities 
present themselves: 
(1) it may apply directly in disputes between individuals and the public 
administration: vertical effect; 
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(2) where, in contrast, the dispute is between individuals, horizontal effect – the 
principle of interpreting national law in conformity with EU law comes into play, 
requiring examination of whether domestic law may be applied in a manner in 
keeping with the provisions of the directive; and 
(3) if national law cannot be interpreted in conformity with EU law, the injured 
individual has no option but to claim damages from the infringing State.’ 
21 Ultimately, in the light of the case-law of the Supreme Court, the question arises 
as to whether, where Spanish legislation infringes Directive 98/59, that directive, 
as legislation implementing the fundamental rights under Articles 27 and 30 of the 
Charter, should have direct horizontal effect (between individuals) or whether, as 
Chamber IV of the Supreme Court holds, if national law cannot be interpreted in 
conformity with EU law, the injured individual has no option but to claim 
damages from the infringing State. It is therefore appropriate to refer the second 
question for a preliminary ruling.