Judgment;Summary — ECLI:EU:C:2023:548
Date: 2023-07-06
Language of the case: Greek
Court formation: Seventh Chamber
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary C-404/22 – 1 
Case C-404/22 
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: 
16 June 2022 
Referring court: 
Dioikitiko Protodikeio Athinon (Greece) 
Date of the decision to refer: 
3 May 2022 
Applicant:  
Ethnikos Organismos Pistopoiisis Prosonton & Epaggelmatikou 
Prosanatolismou (Ε.Ο.P.P.Ε.P.) 
Defendant:  
Elliniko Dimosio 
  
Subject matter of the main proceedings 
Application by the Ethnikos Organismos Pistopoiisis Prosonton & 
Epaggelmatikou Prosanatolismou (Ε.Ο.P.P.Ε.P.) (National Organisation for the 
Certification of Qualifications and Vocational Guidance, ‘the ΕΟPPΕP’) 
contesting the notice issued on 12 July 2018 by the Head of the Tmima 
Epitheorisis Ergasiakon Scheseon Neas Ionias (Nea Ionia Labour Relations 
Inspectorate, ‘the ΤΕΕS’) imposing a fine on it for infringement of the 
information and consultation requirements under national legislation transposing 
Article 4(2), (3) and (4) of Directive 2002/14/EC into the national legal system.  
Subject matter and legal basis of the request 
The request for a preliminary ruling has been made pursuant to Article 267 TFEU, 
taking account in particular of the fact that the provisions of Article 2(a) and 
Article 4(2)(b) of Directive 2002/14, which give rise to reasonable doubt as to the 
meaning of the terms ‘economic activity’, ‘situation’, ‘structure’ and ‘probable 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-404/22 
 
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development of employment’, have not been interpreted by the courts of the 
European Union. 
Questions referred for a preliminary ruling 
1) (a) What does the term ‘undertaking carrying out an “economic activity”’ 
mean for the purposes of Article 2(a) of Directive 2002/14/EC? 
(b) Does it include private-law legal entities such as the EOPPEP which, in the 
exercise of its powers of certification of vocational training bodies, acts as a 
public-law legal entity and exercises public powers, inasmuch as (i) for certain of 
its activities, such as the provision of all manner and form of vocational guidance 
services to the competent ministerial bodies, centres and vocational education and 
training bodies, undertakings, and employers’ and workers’ associations 
(Article 14(2)(ib) of Law 4115/2013, Government Gazette I/24), it follows from 
Article 14(2)(ie) of that law laying down the requirements for the provision of 
advisory and vocational guidance services by private individuals and legal entities 
in Greece that there may be a market in which commercial undertakings are 
carrying out an activity in competition with the applicant, and (ii) according to 
Article 23(1)(d) of that law, the applicant’s resources include revenue from the 
performance of work and the provision of services either allocated to it by the 
Minister or performed on behalf of third parties, including government 
departments, national and international organisations, public- or private-law legal 
entities and private individuals, whereas (iii) for its other activities, Article 20 of 
Law 4115/2013 provides for the payment of fees? 
(c) Does the answer to the above question depend on whether, in relation to 
most of the activities (Article 14(2) of Law 4115/2013) of the private-law legal 
entity, a few appear to be carried out only in a market environment and, if the 
answer to that is in the negative, whether it suffices that the legislature provided 
(Article 14(2)(ib) and Article 23(1)(d) of Law 4115/2013) for that legal entity to 
act, in part at least, as a market operator or whether it is necessary to prove that it 
does indeed carry out a particular activity in a market environment? 
2) (a) What do the terms ‘situation’, ‘structure’ and ‘probable development of 
employment’ in the undertaking, on which workers must be informed and 
consulted, mean for the purposes of Article 4(2)(b) of Directive 2002/14/EC? 
(b) Do the above terms include the removal of employees from positions of 
responsibility in which they were placed temporarily after the private-law legal 
entities EKEPIS and EKEP had merged with the EOPPEP and operating 
regulations had been adopted for that legal entity which did not abolish those 
positions, and must the workers therefore be informed and consulted prior to their 
removal? 
(c) Does the answer to the above question depend on (i) whether the smooth 
functioning of the legal entity and its operational needs were cited as the reason 
ETHNIKOS ORGANISMOS PISTOPOIISIS PROSONTON & EPAGGELMATIKOU PROSANATOLISMOU (Ε.Ο.P.P.Ε.P.) 
 
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for the removal of a worker from a position of responsibility, so that it can achieve 
the objectives which it was established to pursue, or whether poor performance of 
the worker’s duties as acting head was the reason for the worker’s removal; (ii) 
the fact that the employees removed from positions of responsibility were retained 
as members of the legal entity’s staff; or (iii) the fact that other persons were 
temporarily placed in positions of responsibility by the decision of the competent 
body removing employees from positions of responsibility? 
Provisions of European Union law relied on 
Article 151 TFEU 
1989 Community Charter of the Fundamental Social Rights of Workers, 
Article 18 
Directive 2002/14/EC of the European Parliament and of the Council of 11 March 
2002 establishing a general framework for informing and consulting employees in 
the European Community (OJ 2002 L 80, p. 29), recitals 7 and 8, Article 2, 
Article 3(1), Article 4(2), (3) and (4) and Article 8(2) 
Judgments of the Court of 17 November 2016, Betriebsrat der Ruhrlandklinik, 
C-216/15, EU:C:2016:883, paragraph 44; of 11 November 2021, Manpower Lit, 
C-948/19, EU:C:2021:906, paragraphs 39, 43 and 45; of 6 September 2011, 
Scattolon, C-108/10, EU:C:2011:542, paragraph 44; of 25 October 2001, 
Ambulanz Glöckner, C-475/99, EU:C:2001:577, paragraph 21; of 17 March 2011, 
Peñarroja Fa, C-372/09 and C-373/09, EU:C:2011:156, paragraph 37; of 
17 March 1993, Sloman Neptun, C-72/91 and C-73/91, EU:C:1993:97, 
paragraph 26; and of 2 February 1988, Blaizot and Others, 24/86, EU:C:1988:43, 
paragraph 17. 
Opinion of Advocate General V. Trstenjak of 7 July 2011, KHS AG, C-214/10, 
EU:C:2011:465, point 60. 
Provisions of national law relied on 
Presidential Decree 240/2006 establishing a general framework for informing and 
consulting employees in accordance with Directive 2002/14/ΕC of the European 
Parliament and of the Council of 11 March 2002 (OJ 2002 L 80) (Government 
Gazette I/252) (‘Presidential Decree 240/2006’), Article 2 and Article 4(2), (3) 
and (4) 
Law 4115/2013 on the organisation and operation of a youth and lifelong learning 
foundation and a national organisation for the certification of qualifications and 
vocational guidance and other provisions (Government Gazette I/24) (‘Law 
4115/2013’), Articles 13, 14, 20 and 23 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-404/22 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 By a joint ministerial decision adopted in 2011, the private-law legal entity 
registered as Ethniko Kentro Pistopoiisis Domon Dia Biou Mathisis (National 
Centre for the Certification of Lifelong Learning Structures, ‘the EKEPIS’) and 
the private-law legal entity registered as Ethniko Kentro Epaggelmatikou 
Prosanatolismou (National Centre for Vocational Guidance, ‘the EKEP’) were 
merged with the private-law legal entity registered as Ethnikos Organismos 
Pistopoiisis Prosonton (National Organisation for the Certification of 
Qualifications, ‘the EOPP’) and ceased to be independent legal entities. By that 
same joint ministerial decision, the EOPP was renamed Ethnikos Organismos 
Pistopoiisis Prosonton & Epaggelmatikou Prosanatolismou (E.O.P.P.E.P.). 
2 Two EKEPIS employees, P.M. and D.M., were among those transferred to the 
EOPPEP following its establishment. 
3 The organisation chart of the EOPPEP was approved by decision of its board of 
directors adopted on 9 December 2011. By decision adopted by that board on 
16 February 2012, P.M. was assigned to the position of acting head of the 
Qualifications Certification Department and D.M. was assigned to the position of 
acting deputy director of the Directorate of Administration & Economic Services 
and acting head of the Finance Department. Lastly, that decision was amended by 
decision adopted by the board of directors on 17 June 2013, further to which D.M. 
temporarily took over the Directorate of Administrative & Economic Services 
alone. 
4 Following the publication on 19 December 2017 of the applicant’s operating 
regulations, under which the directorates and departments referred to above were 
maintained, the applicant’s board of directors adopted two decisions: by the first 
decision, adopted on 18 January 2018, the board decided that D.M. should 
continue to hold the position of acting head of the Directorate of Administrative & 
Economic Affairs pending the selection and appointment of a head of that 
directorate and, by the second decision, adopted by the board on 14 February 
2018, D.M. was released from her duties as acting head of the directorate but 
remained in the Administration Department. According to the contents of the 
decision adopted on 14 February 2018, D.M. was removed because, as head of the 
Directorate of Administrative & Economic Affairs, she had failed, first, to apply 
the correct value for staff salaries in accordance with the legislation in force and 
the ‘final finding’ of the Geniko Logistirio tou Kratous (General Accounting 
Office of State) and, second, to issue a salary classification verification notice for 
the applicant’s employees. 
5 By the decision adopted by the applicant’s board of directors on 21 February 
2018, P.M. was released from her duties as acting head of the Qualifications 
Certification Department, but continued to work as an employee of that 
department. The preamble to the decision states that it was adopted by the board 
of directors with due regard for the need to serve the applicant’s requirements and 
ETHNIKOS ORGANISMOS PISTOPOIISIS PROSONTON & EPAGGELMATIKOU PROSANATOLISMOU (Ε.Ο.P.P.Ε.P.) 
 
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safeguard its smooth functioning and operational needs, so that it can achieve the 
objectives which it was established to pursue. By the same decision of the board 
of directors, K.G. was also released from his position as head of the Structure 
Licensing Department, but continued to work as an employee of the applicant’s 
Knowledge Management and e-Governance Department, and A.A. was assigned 
to the position of acting head of the Finance Department. 
6 Following the adoption of the above decisions, P.M. and D.M. filed complaints 
against them with the Nea Ionia TEES on 26 February 2018 and 15 March 2018, 
respectively, by which they requested that industrial dispute proceedings be 
initiated. The Nea Ionia TEES found from its on-site investigation that the 
applicant, which employs 80 workers, had failed to inform or consult its works 
council, as required by Presidential Decree 240/2006, before removing the above 
employees from their positions of responsibility. 
7 Based on the findings of that investigation, the Head of the Nea Ionia TEES 
issued a notice dated 12 July 2018 imposing a fine of EUR 2 250 on the applicant 
for infringement of Article 4(2), (3) and (4) of Presidential Decree 240/2006. 
Specifically, the fine was imposed for the infringement consisting in the 
applicant’s failure to submit, first, written information to the works council and, 
second, the minutes of the consultation ‘before removing two employees as heads 
of operational units’. 
8 The applicant lodged an application for annulment of the notice imposing the fine. 
The essential arguments of the parties in the main proceedings 
9 The EOPPEP submits, inter alia, that (a) it is not an undertaking carrying on an 
economic activity, in that, when it exercises its powers of certification of 
vocational training bodies, it is exercising public powers; (b) when the EOPPEP 
was established, P.M. and D.M. were assigned to the positions of acting head of 
department and acting head of directorate, respectively, and were aware of the fact 
that their appointments were temporary; and (c) the infringement at issue concerns 
two isolated staff cases to which the information and consultation procedure does 
not apply and in which, conversely, the applicant is, in the present case, exercising 
its own managerial rights. 
10 The defendant requests that the application for annulment be dismissed as 
unfounded in law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 According to the case-law of the Symvoulio tis Epikrateias (Council of State, 
Greece), the applicant, which is a private-law legal entity, is acting as a public-law 
legal entity exercising public powers when it exercises its powers of certification 
of vocational training bodies. Moreover, when it exercises those powers, it does 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-404/22 
 
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not qualify as an undertaking carrying out an ‘economic activity’ within the 
meaning of Article 2(a) of Directive 2002/14. 
12 However, for certain of its other activities, such as the provision of all manner and 
form of vocational guidance services to the competent ministerial bodies, centres 
and vocational education and training bodies, undertakings, and employers’ and 
workers’ associations (Article 14(2)(ib) of Law 4115/2013), it follows from the 
provisions of Article 14(2)(ie) of that law laying down the requirements for the 
provision of advisory and vocational guidance services by private individuals and 
legal entities in Greece that there may be markets in which commercial 
undertakings are carrying out an activity in competition with the applicant. It must 
also be borne in mind that, under Article 23(1)(d) of Law 4115/2013, the 
applicant’s resources include revenue from the performance of work and the 
provision of services either allocated to it by the Minister or performed on behalf 
of third parties, including government departments, national and international 
organisations, public- or private-law legal entities and private individuals, whereas 
for its other activities, Article 20 of Law 4115/2013 provides for the payment of 
fees. It follows from this, first, that the legislature provided for the applicant to act 
as a market operator in part at least, as the essential characteristic of remuneration 
lies in the fact that it constitutes consideration for the service in question which is 
normally agreed upon between the provider and the recipient of the service (see 
judgment of 11 November 2021, Manpower Lit, C-948/19, EU:C:2021:906, 
paragraphs 43 and 45). 
13 Furthermore, Article 4(2)(b) of Directive 2002/14 establishes a requirement to 
inform and consult workers on matters relating to the ‘situation’, ‘structure’ and 
‘probable development of employment’ within the undertaking and ‘any 
anticipatory measures envisaged, in particular where there is a threat to 
employment’. 
14 According to Article 18 of the 1989 Community Charter of the Fundamental 
Social Rights of Workers, that requirement applies, for example, where 
restructuring operations in undertakings or mergers have an impact on 
employment. That is true, as a general rule, of the case under consideration, as the 
applicant is the product of a merger with other legal entities, the EKEPIS and the 
EKEP, and P.M. and D.M. were removed from their positions of responsibility in 
February 2018, following the adoption of the applicant’s first operating regulation 
in December 2017. 
15 Although those employees had been placed in those positions of responsibility 
temporarily, P.M. was relieved of her duties as acting head of the Qualifications 
Certification Department in order to serve the applicant’s requirements, so that it 
could achieve the objectives which it was established to pursue, not due to 
shortcomings in the performance of her duties, as was the case with D.M., and the 
position of head of the Qualifications Certification Department continued to exist 
even after the applicant’s operating regulations had been adopted. 
ETHNIKOS ORGANISMOS PISTOPOIISIS PROSONTON & EPAGGELMATIKOU PROSANATOLISMOU (Ε.Ο.P.P.Ε.P.) 
 
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16 That fact, assuming that the case at issue comes within the scope of Directive 
2002/14, gives rise to doubts as to the interpretation of the terms ‘situation’, 
‘structure’ and ‘probable development of employment’ within the meaning of 
Article 4(2)(b) of the directive. 
17 Moreover, by its decision of 21 February 2018, the board of directors allocated 
and removed other workers to and from positions of responsibility, again in order 
to serve the applicant’s requirements and safeguard its smooth functioning and 
operational needs, so that it can achieve the objectives which it was established to 
pursue. 
18 The applicant’s claim that there was no requirement in the case under 
consideration to inform and consult its workers, as the contested removal from 
positions of responsibility concerns two isolated cases, has been asserted to no 
avail, as the labour dispute under consideration arose in the wake of the 
application submitted by those two workers alone, even though other workers 
were also removed from positions of responsibility further to the same decision by 
the applicant’s board of directors.