Judgment;Summary — ECLI:EU:C:2024:155
Date: 2024-02-22
Language of the case: Spanish
Court formation: Seventh Chamber
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-589/22 – 1 
Case C-589/22 
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:  
7 September 2022 
Referring court:  
Tribunal Superior de Justicia de las Islas Baleares (Spain) 
Date of the decision to refer:  
29 August 2022 
Appellants:  
J.L.O.G. 
J.J.O.P. 
Respondent:  
Resorts Mallorca Hotels International, S.L. 
  
Subject matter of the main proceedings 
Dismissals on objective grounds disregarding the procedure for collective 
redundancies – Collective redundancy – Concept – Temporal scope – 
Requirement for a prior consultation – Contracts terminated through voluntary 
redundancy 
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on interpretation – Article 267 TFEU – 
Interpretation of Article 1(1), final subparagraph, and of Article 2 of Directive 
98/59/EC – Collective redundancies 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-589/22 
 
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Questions referred for a preliminary ruling 
(1) Should 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, read in the light of the case-law the Court of Justice of the 
European Union set out in the judgment of 10 September 2009 (C-44/08, 
EU:C:2009:533),  
be interpreted as meaning that the consultation and notification 
requirements, which underpin the effectiveness of the Directive, arise as 
soon as an undertaking, as part of a restructuring process, projects a number 
of terminations of employment contracts which may exceed the collective 
redundancy threshold, irrespective of the fact that, ultimately, the number of 
assimilable dismissals or terminations does not reach that threshold on 
account of measures taken by the employer, without prior consultation with 
the workers’ representatives, to reduce that number? 
(2) Does the provision in the final subparagraph of Article 1(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, which states that ‘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’,  
in the context of a crisis in which a reduction in the workforce, including 
through dismissals, is expected, cover worker redundancies proposed by an 
undertaking, which although not sought by the workers, were accepted by 
them on receipt of a firm offer of immediate employment at another 
undertaking, when it was the employer who arranged for its employees to 
have the option of being interviewed by that other undertaking with a view 
to their possible recruitment? 
Provisions of EU law relied on 
Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of 
the Member States relating to collective redundancies. 
Article 1: 
‘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: 
RESORTS MALLORCA HOTELS INTERNATIONAL 
 
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(i) either, over a period of 30 days: 
– 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. 
…’ 
Article 2: 
‘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. 
…’ 
Provisions of national law relied on 
Estatuto de los Trabajadores (Workers’ Statute). 
Article 51: 
‘1. For the purposes of this law, “collective redundancy” shall mean the 
termination of contracts of employment for economic, technical or organisational 
reasons or reasons related to production, where, over a period of 90 days, the 
termination affects at least: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-589/22 
 
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(a) 10 workers in undertakings employing fewer than 100 workers; 
(b) 10% of the number of workers in undertakings employing between 100 and 
300 workers; 
(c) 30 workers in undertakings employing more than 300 workers. 
… 
2. Collective redundancy must be preceded by a period of consultation with the 
workers’ legal representatives for a maximum period of 30 calendar days or 
15 days in the case of undertakings with fewer than 50 workers. Consultation with 
workers’ legal representatives must include, as a minimum, consideration of the 
possibilities of avoiding or reducing collective redundancy and of mitigating the 
consequences thereof by recourse to social support measures, such as 
outplacement or vocational training or retraining to improve employability.’ 
Brief summary of the facts and the main proceedings 
1 The appellants in the main proceedings were employed by the undertaking 
RESORTS MALLORCA HOTELS INTERNATIONAL, S.L., the respondent in 
the main proceedings (‘RESORTS MALLORCA’), belonging to the British 
international group Thomas Cook, which is engaged in the management and 
operation of hotels. Given its complicated economic situation, on 25 September 
2019, RESORTS MALLORCA informed the juzgado de lo mercantil de Palma de 
Mallorca (Commercial Court, Palma de Mallorca, Spain) that it had commenced 
negotiations for refinancing or entry into an arrangement with creditors. 
2 Between August 2019 and January 2020, RESORTS MALLORCA went from 
managing and operating 20 hotels in Spain to managing only seven. As regards 
the 13 hotels which it ceased to manage, on 30 December 2019 it signed an 
agreement with the seven companies that owned those hotels, which were part of 
the GRUPO GLOBALES group, and with the entity AMLA EXPLOTACIONES 
TURÍSTICAS, S. A., which was also part of that group. That agreement, which 
took effect on 1 January 2020, was for the early termination of the leases of the 
seven hotels. By a single decision, the hotel owners were to transfer the leases to 
AMLA EXPLOTACIONES TURÍSTICAS, S. A., which would take over as the 
operating licensee of the seven establishments from that date. Similarly, all the 
employment contracts of the staff of the seven hotels were transferred to GRUPO 
GLOBALES with effect from 31 December 2019. 
3 In that context, RESORTS MALLORCA asked all the staff at its central offices to 
provide a response, in a document drawn up on an ad hoc basis, as to whether they 
were prepared to be interviewed by the management of GRUPO GLOBALES to 
fill 10 job vacancies that the new operator might have, due to the increased 
workload in its common services, after the recovery of the seven hotels. Following 
the interviews, nine workers formally expressed their wish to leave RESORTS 
RESORTS MALLORCA HOTELS INTERNATIONAL 
 
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MALLORCA, with effect from 14 January 2020. Subsequently, on 15 January 
2020, those nine workers signed employment contracts with AMLA 
EXPLOTACIONES TURÍSTICAS, S. A. in which their length of service, 
category and remuneration at RESORTS MALLORCA was recognised and in 
which it was specified that there was no subrogation, since the employment 
relationship with the previous undertaking had been terminated beforehand. 
4 At the time when RESORTS MALLORCA informed the juzgado de lo mercantil 
(Commercial Court) of its intention to enter into negotiations with the creditors, it 
employed 43 workers at its central services establishment (in the administration, 
finance, commercial, maintenance, operations, procurement, organisation and 
systems, occupational risk prevention and human resources departments). That 
workforce was reduced to 32 workers after the departure, with effect from 
14 January 2020, of, inter alia, the nine workers who had taken voluntary 
redundancy which was notified to the undertaking on 30 December 2019. On 
31 January 2020, the two workers who are the appellants in the main proceedings 
and seven other workers were notified of their objective dismissal for 
organisational and production reasons, so the number of staff employed at the 
undertaking’s central services establishment was reduced to 23. 
5 The appellant workers challenged their dismissals before the juzgado de lo social 
(Social Court), arguing that the respondent undertaking should have followed the 
collective redundancy procedure and that it had fraudulently circumvented that 
procedure through the artifice of voluntary redundancies. The juzgado de lo social 
de Palma de Mallorca (Social Court, Palma de Mallorca) dismissed that action and 
found that it was appropriate to effect individual dismissals on objective grounds 
because the number of dismissals was below the collective redundancy threshold. 
The appellant workers appealed against that judgment, reiterating the arguments 
they put forward at first instance. The respondent undertaking claims that the nine 
voluntary redundancies cannot be counted as dismissals, so the collective 
redundancy threshold was not exceeded. In addition, it maintains that the decision 
to dismiss nine workers on objective grounds was made independently of the 
outcome of the interview process, which was transparent and voluntary, since the 
offer of voluntary redundancy had been accepted by the workers who considered 
it appropriate to do so. 
Principal arguments of the parties in the main proceedings 
6 The workers’ representatives were in favour of the referral of the question for a 
preliminary ruling, whereas the respondent undertaking objected to it, taking the 
view that the question which should be asked of the Court of Justice of the 
European Union is whether the voluntary redundancies of nine workers effected 
prior to the dismissals of the appellants and other workers should be taken into 
account for the purpose of calculating the number of redundancies referred to in 
Article 1(1)(a) of Directive 98/59. 
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Brief summary of the reasons for the referral 
7 The referring court is uncertain, first of all, whether the respondent undertaking 
may have undermined the effectiveness of Directive 98/59 by projecting the 
departure of a number of workers which could have, and in fact did, exceed the 
collective redundancy threshold without fulfilling the notification and consultation 
requirements. In the second place, the referring court is uncertain whether the 
voluntary redundancies of nine workers effected prior to the dismissals of the 
appellants and other workers should be assimilated to redundancies and, 
consequently, be counted in the calculation of the number of redundancies for the 
purposes of Article 1(1)(a) of Directive 98/59. 
First question: the time at which the consultation and notification requirements 
arise in the interests of the effectiveness of Directive 98/59 
8 The question arises whether the undertaking should have begun consultations with 
the workers’ representatives when, given its economic difficulties, it projected the 
departure of a number of workers which could exceed the collective redundancy 
threshold, having entered into negotiations with the creditors and agreed to cease 
managing a significant proportion of the hotels it was operating, or whether it 
could seek ways and means of avoiding or reducing the redundancies without 
having to comply with the consultation and notification requirements which 
underpin the effectiveness of the Directive. 
9 The respondent undertaking found it necessary to reduce staff numbers at its 
central offices with effect from 1 January 2020 because of the loss of business 
which was due to the fact that it had divested itself of 13 of the 20 hotels it 
managed, under the terms agreed with GRUPO GLOBALES and AMLA 
EXPLOTACIONES TURÍSTICAS, S. A, as described above (terminating the 
leases, returning the hotels to the owners and transferring the operation of those 
hotels with subrogation of the employment contracts). 
10 In that context, the respondent undertaking offered the workers employed at its 
central services establishment the opportunity to be interviewed by the new 
undertaking operating the hotels, with the intention of reducing the number of 
redundancies or terminations assimilated thereto, thereby avoiding collective 
redundancy requirements. The voluntary redundancies and recruitment of staff to 
the new undertaking took place in January 2020 by individual agreements and 
without any consultation of the workers’ representatives or notification to the 
employment authority. Taking into account the voluntary redundancies and the 
dismissals, the number of terminations of contracts was 18, so it is reasonable to 
think that the number of projected departures of workers exceeded ten before the 
interview process began. 
11 It is apparent from the documents in the file that the respondent undertaking itself 
stated in that regard that ‘the number of workers who ultimately signed contracts 
with [GRUPO GLOBALES] could have been higher, in which case the number of 
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terminations on objective grounds would probably have been lower or, 
conversely, [GRUPO GLOBALES] could have retained fewer workers, and in 
that case, had the terminations affected ten or more workers, initiated a collective 
redundancy procedure. That is to say that decisions were taken on the basis of the 
reality of the situation at the time, and the decision to terminate nine contracts on 
objective grounds was made in response to the assessment of the undertaking’s 
organisational and production needs after [GRUPO GLOBALES] took on part of 
the workforce.’ It is therefore clear that the voluntary redundancies and the 
dismissals were directly interconnected, and therefore, the increase in the former 
would lead to a reduction in the latter and vice versa, in view of the fact that all 
the contract terminations were part of the same workforce reduction plan. 
12 The relevant case-law of the Court of Justice of the European Union in that 
particular regard is set out, in the first place, in the judgment of 10 September 
2009, Akavan Erityisalojen Keskusliitto AEK ry and Others (C-44/08, 
EU:C:2009:533), in which it was held, inter alia, that: 
‘… the present case relates to economic and commercial decisions which might 
have repercussions on the employment of a number of workers within an 
undertaking, and not to decisions which are directly concerned with terminating 
specific employment relationships.’ (paragraph 37) 
‘… the obligations of consultation and notification imposed on the employer come 
into being prior to the employer’s decision to terminate employment contracts 
(see, to that effect, Case C-188/03 Junk [2005] ECR I‑ 885, paragraphs 36 and 
37). In such a case, there is still a possibility of avoiding or at least reducing 
collective redundancies, or of mitigating the consequences.’ (paragraph 38) 
‘Under Article 2(1) of Directive 98/59, the employer has the obligation to start 
consultations with the workers’ representatives in good time if he “is 
contemplating collective redundancies”. … [I]t is clear from comparison of 
various language versions of that provision that the Community legislature 
envisaged that the obligation at issue to hold consultations would arise in 
connection with the existence of an intention on the part of the employer to make 
collective redundancies.’ (paragraph 39) 
‘The references in [the] Directive … to “projected” collective redundancies 
confirm that the existence of such an intention is the factor which triggers the 
[information and consultation] obligations.’ (paragraph 40) 
It follows that the obligation to hold consultations laid down in Article 2 of 
Directive 98/59 is deemed to arise where the employer is contemplating collective 
redundancies or is drawing up a plan for collective redundancies (see, to that 
effect, Case 284/83 Dansk Metalarbejderforbund and Specialarbejderforbundet i 
Danmark [1985] ECR 553, paragraph 17).’ (paragraph 41) 
‘Moreover, … a premature triggering of the obligation to hold consultations 
could lead to results contrary to the purpose of Directive 98/59, such as 
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restricting the flexibility available to undertakings when restructuring, creating 
heavier administrative burdens and causing unnecessary uncertainty for workers 
about the safety of their jobs.’ (paragraph 45) 
‘… 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. Those 
objectives are … to avoid termination of employment contracts or to reduce the 
number of workers affected, and to mitigate the consequences. … However, 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.’ (paragraph 46) 
‘On the other hand, it is clear that to draw a link between the requirement to hold 
consultations … and the adoption of a strategic or commercial decision which 
makes the collective redundancies of workers necessary may deprive that 
requirement, in part, of its effectiveness … [T]he consultations must cover, inter 
alia, the possibility of avoiding or reducing the collective redundancies 
contemplated. A consultation which began when a decision making such collective 
redundancies necessary had already been taken could not usefully involve any 
examination of conceivable alternatives with the aim of avoiding them.’ 
(paragraph 47) 
‘It must therefore be held that … the consultation procedure must be started by 
the employer once a strategic or commercial decision compelling him to 
contemplate or to plan for collective redundancies has been taken.’ 
(paragraph 48) 
‘In those circumstances, the answer to be given to the first question referred is 
that Article 2(1) of Directive 98/59 must be interpreted to mean that the adoption, 
within a group of undertakings, of strategic decisions or of changes in activities 
which compel the employer to contemplate or to plan for collective redundancies 
gives rise to an obligation on that employer to consult with workers’ 
representatives.’ (paragraph 49) 
In the judgment of 21 September 2017, Małgorzata CIPA and Others (C-429/16, 
EU:C:2017:711), the Court confirms the foregoing considerations (paragraphs 32, 
33 and 34). 
13 Given that, unlike the situation in the present case, the main proceedings in the 
case which gave rise to the judgment of 10 September 2009 in Case C-44/08 
concerned an undue delay in the start of the consultation period, which is a 
different scenario, the referring court proposes an interpretation extending the 
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protection afforded by Directive 98/59 to any situation in which an undertaking 
takes decisions that are likely to affect the employment of a number of workers 
which might exceed the collective redundancy threshold, irrespective of whether 
the number of dismissals does ultimately exceed that threshold or not. 
Accordingly, as soon as that situation arises, the undertaking in question must 
consult the workers’ representatives with a view to reaching an agreement to 
reduce the number of redundancies or mitigate the effects thereof, since measures 
to that end cannot be taken through individual negotiations with workers and 
without prior consultation, as that would undermine the effectiveness of the 
Directive. Only that interpretation ensures the effectiveness of Directive 98/59. 
14 Second question: terminations of employment contracts which may be taken into 
account for the purpose of calculating the number of redundancies under 
Article 1(1)(a) of Directive 98/59 
15 The referring court considers the second question to be particularly relevant if the 
circumstances to be taken into consideration are those which existed at the time of 
the adoption of the decision to dismiss the appellant workers and the other seven 
workers, and not those which existed prior to that. 
16 In particular, an interpretation of the last subparagraph of Article 1(1) of Directive 
98/59 (other terminations of an employment contract which occur on the 
employer’s initiative) is required. It is not disputed in the main proceedings that, if 
the nine voluntary redundancies of 14 January 2020 were counted as dismissals, 
this would reduce the number of assimilable dismissals or terminations which 
triggers the obligation to begin consultations with the workers’ representatives. 
17 As regards the case-law on the subject, the Court of Justice has held that the 
concept of redundancy ‘must be regarded as a concept of EU law which cannot be 
defined by reference to the laws of the Member States. … [T]hat concept must be 
interpreted as encompassing any termination of an employment contract not 
sought by the worker, and therefore without his consent’ (judgment of 
11 November 2015, (C-422/14, EU:C:2015:743, paragraph 48)). Similarly, it has 
held that ‘redundancies are to be distinguished from terminations of the contract 
of employment which, on the conditions set out in the second paragraph of 
Article 1(1) of Directive 98/59, are assimilated to redundancies for want of the 
worker’s consent’ (judgment of 11 November 2015, (C-422/14, EU:C:2015:743) 
paragraph 49). It has also held that ‘the concept [of redundancy] has to be 
interpreted as including any termination of contract of employment not sought by 
the worker …’ (judgment of 12 October 2004, (C-55/02, EU:C:2004:605, 
paragraph 50). In the Portuguese version of that judgment, Portuguese being the 
language of the case, paragraph 50 reads ‘qualquer cessação do contrato de 
trabalho não pretendida pelo trabalhador’. 
18 There is no doubt that, in principle, even though voluntary redundancies are 
terminations which occur for reasons not related to the worker concerned, they are 
terminations which occur on the workers’ initiative, and not on the employers’ 
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initiative. However, in this case, although the proposed termination of the contract 
was accepted and agreed to by the workers, the voluntary redundancies occurred 
as a consequence of the employer’s proposal for interviews to be held with the 
transferee undertaking and of offers of immediate recruitment into that 
undertaking. 
19 In any event, for the referring court, acceptance of the proposal does not mean that 
the terminations were sought by the workers. Rather, they were terminations of an 
employment contract effected on the employer’s initiative and accepted by the 
workers because of the situation in which the undertaking found itself. It may be 
the case that the terminations were sought, but only in so far as they occurred in a 
situation of uncertainty in which the alternative entailed a high probability of 
dismissal on account of the loss of business and economic crisis suffered by the 
undertaking. Arguably, what the workers wanted was not to leave the company, 
but to find a positive solution, or at least one that was as painless as possible, in 
the light of the existing situation, by accepting a proposal whereby they would 
remain in employment under the same conditions. The workers’ agreement in 
response to the undertaking’s initiative was therefore influenced to a large extent 
by the circumstances. 
20 The referring court considers that, in conclusion, the final subparagraph of 
Article 1(1) of Directive 98/59 must be interpreted as meaning that the concept of 
dismissal covers all terminations of contracts for reasons not related to the 
individual worker concerned, which have occurred, in a situation where the 
undertaking is in critical difficulties and plans to reduce staff numbers, on the 
employer’s initiative, and have not been sought by the worker, even if the worker 
concerned has agreed to or accepted the employer’s proposal for him to take 
voluntary redundancy from that undertaking and immediately take up employment 
in another, thus avoiding the risk of dismissal. 
21 Both of the questions referred for a preliminary ruling are essential to the proper 
resolution of the dispute in the main proceedings, in which the fundamental basis 
for the claim made by the representatives of the appellant workers is precisely that 
the legal formalities for collective redundancies have been circumvented, which 
would render the dismissals at issue void.