Opinion of the Advocate General — ECLI:EU:C:2009:241
Date: 2009-04-22
Language of the case: Finnish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the Judgment 1. Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Procedure for informing and consulting employees (Council Directive 98/59, Art. 2(1) and (2)) 2. Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Procedure for informing and consulting employees (Council Directive 98/59, Art. 2(3), first para., (b)) 3. Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Procedure for informing and consulting employees (Council Directive 98/59, Art. 2(1) and (4)) 4. Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Procedure for informing and consulting employees (Council Directive 98/59, Art. 2(1) and (4)) 1. Article 2(1) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies 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 workers’ representatives. As is clear from the first subparagraph of that Article 2(2), the 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. (see paras 47, 49, operative part 1) 2. The creation of the obligation on the employer to start consultations on contemplated collective redundancies cannot depend on whether the employer is already able to supply to the workers’ representatives all the information required in Article 2(3), first paragraph, (b) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies. The time at which consultations are to start cannot be dependent on whether the employer is already able to supply to the workers’ representatives all the necessary information referred to in that provision. The logic of that provision is that the employer is to supply to the workers’ representatives the relevant information throughout the course of the consultations. Flexibility in that regard is essential, given that that information may become available only at various stages in the consultation process, which implies that the employer both can and must add to the information supplied in the course of that process. (see paras 53-55, operative part 2) 3. Article 2(1) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies, read in conjunction with the first paragraph of Article 2(4) of that directive, should be interpreted to mean that, in the case of a group of undertakings consisting of a parent company and one or more subsidiaries, the obligation for the subsidiary which has the capacity of employer to consult workers’ representatives arises only where that subsidiary, within which collective redundancies may be made, has been identified. Consultations with the workers’ representatives can be started only if it is known in which undertaking collective redundancies may be made. Where the parent company of a group of undertakings adopts decisions likely to have repercussions on the jobs of workers within that group, it is for the subsidiary whose employees may be affected by the redundancies, in its capacity as their employer, to start consultations with the workers’ representatives. It is therefore not possible to start such consultations until such time as that subsidiary has been identified. (see paras 63, 65, operative part 3) 4. Article 2(1) of Directive 98/59 on the approximation of the laws of the Member States relating to collective redundancies, read in conjunction with Article 2(4) of that directive, must be interpreted to mean that, in the case of a group of undertakings, the consultation procedure must be concluded by the subsidiary affected by the collective redundancies before that subsidiary, on the direct instructions of its parent company or otherwise, terminates the contracts of employees who are to be affected by those redundancies. (see para. 72, operative part 4)