Provisional text
OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 27 February 2025 (1)
Case C‑134/24 [Tomann] (i)
UR, acting as liquidator of V GmbH
v
DF
(Request for a preliminary ruling from the Bundesarbeitsgericht (Federal Labour Court, Germany))
( Reference for a preliminary ruling – Social policy – Directive
98/59/EC – Collective redundancies – Article 4(1) – No prior notification to the competent authority – Consequences for the validity of the redundancy – Determination of the date of expiry of the prohibition on dismissal by the competent authority )
I.      Introduction
1.        This reference for a preliminary ruling, the legal framework for which is Directive 98/59/EC, (2) follows on from the judgment in Junk, (3) by which the Court held that Articles 3 and 4 of that directive do not preclude termination of the contracts of employment during the course of the procedure which they institute, on condition that such termination occurs after the projected collective redundancies have been notified to the competent public authority.
2.        This reference arises in the context of a dispute between the liquidator of a company incorporated under German law and an employee of that company concerning the validity of the termination of the latter’s employment contract, which arose in the context of a collective redundancy.
3.        In the present case, the questions referred by the Second Chamber of the Bundesarbeitsgericht (Federal Labour Court, Germany) will lead the Court to consider once again the procedure for the prior notification of collective redundancies provided for by Directive 98/59 in the particular context of the termination of employment contracts by the employer in the absence of such notification. More specifically, those questions concern, in particular, first, the scope of the obligation to notify under Article 3(1) of that directive and that of the effects of the period provided for in Article 4(1) thereof and, second, the possibility of and conditions for subsequent regularisation of the situation resulting from the employer’s breach of that obligation to notify.
4.        Since the national court has referred the matter to the Court within the framework of an internal consultation procedure aimed at resolving differences of interpretation between various chambers of the Bundesarbeitsgericht (Federal Labour Court), the present case raises, as a preliminary point, the question of the admissibility of the request for a preliminary ruling.
II.    Legal framework
A.      European Union law
5.        Article 2 of Directive 98/59, which forms part of Section
II thereof, entitled ‘Information and consultation’, provides in paragraphs 1 and 3:
‘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.
…
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;
(v)      the criteria proposed for the selection of the workers to be made redundant in so far as national legislation and/or practice confers the power therefor upon the employer;
…
The employer shall forward to the competent public authority a copy of, at least, the elements of the written communication which are provided for in the first subparagraph, point
(b), subpoints
(i) to (v).’
6.        Article 3 of that directive, which appears in Section
III thereof, entitled ‘Procedure for collective redundanc[i]es’, states, in the first and fourth subparagraphs of paragraph 1:
‘1.      Employers shall notify the competent public authority in writing of any projected collective redundancies.
…
This notification shall contain all relevant information concerning the projected collective redundancies and the consultations with workers’ representatives provided for in Article 2, and particularly the reasons for the redundancies, the number of workers to be made redundant, the number of workers normally employed and the period over which the redundancies are to be effected.’
7.        Article 4 of that directive, which is also contained in Section
III thereof, provides in paragraphs 1 to 3:
‘1.      Projected collective redundancies notified to the competent public authority shall take effect not earlier than 30 days after the notification referred to in Article 3(1) without prejudice to any provisions governing individual rights with regard to notice of dismissal.
Member States may grant the competent public authority the power to reduce the period provided for in the preceding subparagraph.
2.      The period provided for in paragraph 1 shall be used by the competent public authority to seek solutions to the problems raised by the projected collective redundancies.
3.      Where the initial period provided for in paragraph 1 is shorter than 60 days, Member States may grant the competent public authority the power to extend the initial period to 60 days following notification where the problems raised by the projected collective redundancies are not likely to be solved within the initial period.
Member States may grant the competent public authority wider powers of extension.
The employer must be informed of the extension and the grounds for it before expiry of the initial period provided for in paragraph 1.’
B.      German law
8.        Paragraph 134 of the Bürgerliches Gesetzbuch (German Civil Code), in the version applicable to the dispute in the main proceedings (‘the BGB’), provides:
‘Any legal act contrary to a statutory prohibition shall be void except as otherwise provided by law.’
9.        Paragraph 615 of the BGB is worded as follows:
‘If the person entitled to services is in default in accepting the services, the party owing the services may then demand the agreed remuneration for the services not rendered as the result of the default without being obliged to provide subsequent service. …’
10.      Paragraph 17 of the Kündigungsschutzgesetz (Law on protection against unfair dismissal), in the version applicable to the dispute in the main proceedings (‘the KSchG’), provides:
‘(1)      The employer is under an obligation to notify the Employment Agency before it makes redundant:
1.      more than 5 workers in establishments normally employing more than 20 and fewer than 60 workers,
…
over a period of 30 calendar days. …
…
(3)      …  The notice referred to in subparagraph
1 shall be given in writing and shall enclose the observations of the works council on the redundancies. If the works council has not made any observations, the notice shall be valid if the employer can demonstrate that the works council was notified at least two weeks prior to the notice given in accordance with the first sentence of subparagraph
2 and the stage reached in consultations. The notice must include information on the name of the employer, the registered office and type of establishment, as well as the reasons for the projected redundancies, the number and professional categories of workers to be made redundant, the number of workers normally employed, the period over which it is planned to carry out the redundancies and the criteria for selecting the workers to be made redundant. The notice shall also include, for the purposes of job placement and in agreement with the works council, information on the sex, age, profession and nationality of the workers to be made redundant. …’
11.      Paragraph 18(1) and (2) of the KSchG reads as follows:
‘(1)      Redundancies which must be notified under Paragraph 17 may take effect less than one month after the labour office has received the notification only with the latter’s consent; consent may be given retroactively to the time at which the application was filed.
(2)      In certain cases, the labour office may decide that the redundancies shall take effect not earlier than two months after receipt of the notification.’
12.      Paragraph 45 of the Arbeitsgerichtsgesetz (Law on labour courts), in the version applicable to the dispute in the main proceedings (‘the ArbGG’), provides:
‘(1)      A Grand Chamber shall be established at the [Bundesarbeitsgericht (Federal Labour Court)].
(2)      The Grand Chamber shall decide where a chamber wishes to deviate from the decision of another chamber or the Grand Chamber on a matter of law.
(3)      A submission to the Grand Chamber shall be admissible only if the chamber from whose decision it is proposed to deviate has declared, at the request of the chamber seised, that it maintains its legal position …. The respective chamber shall rule on the question and the response by means of an order in the composition required for judgments.
…’
III. The facts in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
13.      DF had been employed by V Handelsgesellschaft mbH (‘V’) since 1994. On 1 December 2020, insolvency proceedings were initiated against that company and UR was appointed as liquidator.
14.      On 2 December 2020, UR terminated DF’s contract of employment with effect from 31 March 2021 and, until 29 December 2020, it terminated all 22 of the debtor company’s employment contracts still in force in October 2020. It thus dismissed more than five employees over a period of 30 calendar days.
15.      DF subsequently brought an action for protection against his dismissal before the Arbeitsgericht Hamburg (Labour Court, Hamburg, Germany) seeking, first, a declaration that the employment relationship continued to exist and, second, that UR be ordered to continue to employ DF until the proceedings against the dismissal have been definitively concluded. In support of his action, DF submits that the termination of his contract of employment is null and void because UR had not given prior notification of the collective redundancy in accordance with Paragraph 17(1) of the KSchG.
16.      UR contended that DF’s action should be dismissed, submitting that the rules on collective redundancies were not applicable since V
had only 19 employees at the time the insolvency proceedings were initiated. Thus, the threshold for notification laid down in Paragraph 17(1) of the KSchG was not reached. It did not make such a notification until after 31 March 2021.
17.      By judgment of 20 April 2021, the Arbeitsgericht Hamburg (Labour Court, Hamburg) upheld DF’s action.
18.      By judgment of 3 February 2022, the Landesarbeitsgericht Hamburg (Higher Labour Court, Hamburg, Germany) dismissed UR’s appeal against that judgment.
19.      UR then brought an appeal on a point of law against that judgment before the Bundesarbeitsgericht (Federal Labour Court), the referring court, which was assigned to the Sixth Chamber (Sechster Senat) of that court (‘the Sixth Chamber’).
20.      By order of 11 May 2023, that chamber found that V
‘normally’ employed more than 20 workers at the time of the dismissal in question, and therefore UR should have issued a collective redundancy notification under Paragraph 17(1)(1) of the KSchG before terminating DF’s contract of employment.
21.      By a further order of 14 December 2023, the Sixth Chamber stated that it expressed doubts as to the penalty to be imposed in the event of the absence of such notification and in the presence of other possible infringements in connection with the notification procedure under the KSchG. Contrary to its previous case-law, that chamber held that that penalty could not be a ground for the termination of the contract to be null and void under Paragraph 134 of the BGB. First, Paragraph 17(1) and (3) of the KSchG, which provides for the obligation to give prior notification of collective redundancies, cannot be regarded as a statutory prohibition within the meaning of Paragraph 134 of the BGB. Second, a penalty of nullity is also not provided for in Article 4(1) of Directive 98/59.
22.      The Sixth Chamber thus considers that penalties for errors vitiating the notification procedure or failure to issue a collective redundancy notification cannot be a ground for the termination of the employment contract to be null and void. It is for the national legislature alone to provide for such a penalty.
23.      However, that chamber considers that, in the present case, it is prevented from ruling to that effect, since the case-law of the Second Chamber (Zweiter Senat) of the Bundesarbeitsgericht (Federal Labour Court) (‘the Second Chamber’) concerning the penalties to be imposed in the event of failings in the notification procedure does not allow it to depart from its own earlier case-law, since Paragraph 45(3) of the ArbGG provides for an internal consultation procedure aimed at resolving differences of interpretation between the various chambers of that court.
24.      On the basis of that provision, the Sixth Chamber, in its order of 14 December 2023, therefore asked the Second Chamber whether ‘[it adhered to] the opinion … that the termination of an employment contract as a legal act infringes a statutory prohibition within the meaning of Paragraph 134 of the [BGB] and that the [termination] is therefore invalid if there is no effective notification pursuant to Paragraph 17(1)(3) of the [KSchG] when it is announced’. The Second Chamber has thus far held that a termination of an employment contract effected in the absence of such prior notification was null and void and could not terminate that employment contract.
25.      In the light of the question referred to it, the Second Chamber also considers it possible that it would be disproportionate, particularly by virtue of the obligations imposed by EU law, for such a termination of the employment contract, effected in the absence of prior notification of the collective redundancy, to be rendered null and void.
26.      In those circumstances, the Second Chamber of the Bundesarbeitsgericht (Federal Labour Court), by decision of 1 February 2024, received at the Court on 20 February 2024, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Must Article 4(1) of [Directive 98/59] be interpreted as meaning that a dismissal as part of a collective redundancy subject to compulsory notification can terminate the employment relationship of an employee concerned only once the standstill period has expired?
If the answer to Question
1 is in the affirmative:
(2)      Does the expiry of the standstill period not only require a collective redundancy notification, but must it also satisfy the conditions laid down in the fourth subparagraph of Article 3(1) of Directive 98/59?
(3)      Can an employer who has announced dismissals subject to compulsory notification without a (proper) collective redundancy notification give such notification at a later stage with the consequence that, after the expiry of the standstill period, the employment relationship of the employees concerned can be terminated by the dismissals previously announced?
If the answers to Questions
1 and 2 are in the affirmative:
(4)      Is it compatible with Article 6 of Directive 98/59 for national law to leave it to the competent authority to determine, in a manner which is incontestable for the employee and binding on the labour courts, when the standstill period expires in a particular case, or must the employee necessarily be able to bring an action before a court for review of the accuracy of the authority’s determination?’
27.      Written observations were submitted to the Court by UR and the European Commission. The Court decided not to hold a hearing in the present case.
IV.    Analysis
28.      As I stated in the introduction to this Opinion, before analysing the substance of the request for a preliminary ruling (Section
B), and although the admissibility of that request has not been called into question by any of the interested parties who have lodged written observations, I consider it appropriate, in view of the particular features of the procedure under which the Second Chamber referred the matter to the Court, to address that aspect in order to dispel any doubts as to the admissibility of that request (Section
A).
A.      Admissibility of the request for a preliminary ruling
29.      It follows from the order for reference that Paragraph 45 of the ArbGG provides for a special procedure where there are differences of interpretation between chambers of the Bundesarbeitsgericht (Federal Labour Court). The referring court explains that, under Paragraph 45(2) and (3) of the ArbGG, a chamber of the Bundesarbeitsgericht may deviate from the case-law of another chamber only if the latter has relinquished its view in response to a corresponding question or – failing that – the Grand Chamber of the Bundesarbeitsgericht (Federal Labour Court) has adopted a decision on the correct answer to the legal question at the heart of that difference. This is therefore an internal consultation procedure aimed at resolving differences of interpretation between different chambers of that court, the conduct of which is a condition of admissibility for the submission of a question to the Grand Chamber. (4) It was in the context of that procedure that, by decision of 14 December 2023, the Sixth Chamber referred a question to the Second Chamber, pursuant to the first sentence of Paragraph 45(3) of the ArbGG.
30.      In view of the particular features of that procedure, the question may arise as to whether the Second Chamber constitutes a court or tribunal within the meaning of Article 267 TFEU. However, I am of the view that the approach to be taken in that context could be guided by the following considerations.
31.      In the first place, it is well established that the preliminary ruling mechanism is an instrument for cooperation between the Court and the national courts. In accordance with Article 267 TFEU, all courts or tribunals of the Member States are entitled to make a reference for a preliminary ruling. According to the settled case-law of the Court, in order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. (5)
32.      In that regard, it is clear that, institutionally, the Second Chamber satisfies all of those criteria. Subject to verification by the referring court, the file before the Court contains no evidence capable of calling into question whether it is a court or tribunal within the meaning of Article 267 TFEU. (6)
33.      In the second place, it is important to note that the conditions in which the Court performs its duties in respect of preliminary rulings are independent of the nature and objective of the proceedings brought before the national courts. Article 267 TFEU refers to the judgment to be given by the national court without laying down special rules in terms of the nature of such judgments. (7) In that context, the case-law of the Court attaches particular importance to the question of whether a case is pending before the national courts and whether those courts are called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. It is only if those two conditions are satisfied that those courts may refer a question to the Court. (8)
34.      Moreover, the Court has emphasised in its case-law that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. (9) The Court has thus recalled on several occasions that that court or tribunal must be called upon to give a decision which is capable of taking account of the preliminary ruling. (10)
35.      It is true that no dispute is pending before the Second Chamber, since the specific dispute between the parties to the main proceedings is pending before the Sixth Chamber. The present request for a preliminary ruling thus seeks to answer legal questions which lie at the heart of the difference of interpretation between those two chambers. However, as is apparent from the order for reference, the matter has been referred to the Court by the Second Chamber in the context of a mandatory internal consultation procedure within the Bundesarbeitsgericht (Federal Labour Court) which, according to my understanding of Paragraph 45 of the ArbGG, has the nature of interlocutory proceedings. Subject to verification by the referring court, that procedural stage is therefore an integral part of the German judicial procedure pending before that court, which, taken as a whole, is capable of resolving the dispute between UR and DF.  In other words, the internal consultation mechanism provided for in Paragraph 45 of the ArbGG forms part, as an intermediate stage, of the German judicial procedure, considered as a whole, leading to the judgment of the Sixth Chamber. (11) Consequently, the Second Chamber’s response pursuant to Paragraph 45(3) of the ArbGG, having regard to the facts of the dispute pending before the Sixth Chamber, which will be given in the light of the preliminary ruling by the Court, will enable the Sixth Chamber to rule on the substance of the case in the main proceedings pending before it.
36.      Accordingly, the procedure for internal consultation, which forms an integral part of the entire judicial proceedings pending before the Bundesarbeitsgericht (Federal Labour Court), meets an objective need, namely to put an end to differences of interpretation between different chambers of that court, (12)thereby enabling the pending dispute to be resolved. (13)
37.      It seems to me that an approach other than the one set out in point 35 of this Opinion could ultimately lead to a ‘fictitious fragmentation’ of that type of national procedure, even though at issue is a single dispute, since it has its origin in the same facts. Such an artificial fragmentation of the German judicial procedure would have the consequence that the Bundesarbeitsgericht (Federal Labour Court) would be prevented from making a reference to the Court under the preliminary ruling mechanism during the internal consultation stage between its chambers, whereas that possibility exists in other stages of the same procedure. (14) In my opinion, such an outcome would be inconsistent in that, for reasons of procedural economy, that court should be able to refer the matter to the Court as soon as a question relating to the interpretation of EU law proves necessary, even if that question is raised during the internal consultation stage between its chambers.
38.      In that regard, I would point out, first, that the Court has already held that the concept ‘give judgment’, within the meaning of the second paragraph of Article 267 TFEU, ‘must be interpreted broadly’ and ‘must … be understood as encompassing the whole of the procedure leading to the judgment of the referring court’. (15) According to the Court, that concept therefore covers ‘the entire process of creating the judgment’. (16)
39.      Second, in the judgment in Garofalo and Others, (17) the Court has already found to be admissible a request for a preliminary ruling under Article 267 TFEU concerning questions referred by a high national court relating to the interpretation of that article and of Directive 86/457/EEC, (18) and raised in a number of extraordinary petitions brought by Ms Garofalo and ten other doctors.  In his Opinion, Advocate General Ruíz-Jarabo Colomer took the view that that body ‘[could] retain its character as a judicial body even when it [did] not itself adjudicate but when it deliver[ed] opinions within the particular procedure for challenging administrative acts afforded by an extraordinary petition’. (19) Thus, in finding that ‘such an opinion, which comprises both reasoning and an operative part, is an integral part of a procedure, which … is the only one capable of resolving a dispute between private individuals and the administration’, the Court accepted the request for a preliminary ruling as admissible, stating that, ‘when it issues an opinion in the context of an extraordinary petition, [that body] constitutes a court or tribunal for the purposes of Article [267 TFEU]’. (20)
40.      In the present case, I would point out that, under Paragraph 45(3) of the ArbGG, the internal consultation stage aimed at resolving differences of interpretation between the various chambers of the Bundesarbeitsgericht (Federal Labour Court) will result in a decision of a judicial nature, namely an order with a statement of reasons and an operative part. (21)
41.      In the third and last place, it should be noted that the Court has held that a lower court must be free to refer to the Court questions which concern it. (22) As a consequence, where a national court before which a case is pending considers that a question concerning the interpretation of EU law has arisen in that case, it has the discretion, or is under an obligation, to request a preliminary ruling from the Court, and national rules imposed by legislation or case-law cannot interfere with that discretion or that obligation. (23)
42.      Consequently, it must be held that, in the context of the internal consultation stage aimed at resolving differences of interpretation between the various chambers of the Bundesarbeitsgericht (Federal Labour Court), for the reasons set out in the preceding points of this Opinion, the Second Chamber fulfils the conditions laid down by the Court in its case-law (24) and, therefore, is entitled to make a reference to it in the context of the present reference for a preliminary ruling.
43.      It follows from all the foregoing considerations that the request for a preliminary ruling must be declared admissible.
B.      Consideration of the questions referred for a preliminary ruling
44.      In the remainder of this Opinion, I shall examine, in the first place, in the light of the arguments put forward in that regard by UR and the Commission, whether the second and fourth questions are inadmissible. Taking the view that that is the case, I shall analyse, in the second place, the substance of the first and third questions.
1.      Admissibility
45.      In its written observations, UR submits that the second and fourth questions are inadmissible. In that regard, it submits that the referring court has not specifically stated the reasons why those questions are relevant to the resolution of the dispute. No notification of the collective redundancy was issued by the employer and, consequently, those questions are not decisive.
46.      For its part, the Commission considers that the fourth question is inadmissible. The dispute in the main proceedings does not concern the conformity of a notification with Directive 98/59 but the consequences, under that directive, of the absence of prior notification of the collective redundancy by the employer.
47.      In that regard, it must be recalled that it is well established that the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court and the national courts by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. (25) The aim of that procedure is to make direct and complementary contributions to the working out of a decision to ensure that EU law is applied in a unified manner in all Member States. (26)
48.      According to the settled case-law of the Court, in the context of that judicial cooperation, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of each case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. (27) Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. (28)
49.      While it is true that questions referred for a preliminary ruling relating to EU law enjoy a presumption of relevance, it should be emphasised that, according to settled case-law, the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered, but rather that it is necessary for the effective resolution of a dispute. (29)
50.      As regards the second question, the referring court asks, in essence, whether, if the answer to the first question is in the affirmative, Article 4(1) of Directive 98/59 must be interpreted as meaning that the expiry of the 30-day standstill period (‘the standstill period’) referred to in that provision requires not only notification of the collective redundancy, but also that such notification complies with the fourth subparagraph of Article 3(1) of that directive.
51.      In the present case, I am of the opinion that that question falls within the situations referred to above, in which the presumption of relevance of a question referred may be rebutted. (30) That question seeks to determine the consequences of a possible prior notification of collective redundancies to the competent public authority, carried out in a manner which does not comply with the requirements of the fourth subparagraph of Article 3(1) of Directive 98/59. In other words, the referring court is seeking to ascertain whether the collective redundancy can take effect after the expiry of the standstill period, despite the fact that a notification made by the employer does not comply with that provision. Therefore, the interpretation of EU law sought in that question is not directly related to the subject matter of the dispute in the main proceedings.
52.      In that regard, it is clear from the documents before the Court that, in the dispute in the main proceedings, the employer in question did not, prior to the termination of the employment contract at issue, fulfil its obligation to issue such prior notification laid down in the first subparagraph of Article 3(1) of Directive 98/59. The fact that that question might prove to be relevant in connection with the internal consultation procedure, pursuant to Paragraph 45 of the ArbGG, cannot remove the hypothetical character of that question. (31)
53.      In the light of the foregoing, I propose that the Court find that question to be inadmissible.
54.      As regards the fourth question, the referring court seeks to ascertain, in essence, whether, if the answer to the first two questions is in the affirmative, Article 6 of Directive 98/59 must be interpreted as meaning that national law leaves it to the competent public authority to determine in a manner which is incontestable for the employee and binding on the labour courts, when the standstill period expires in a particular case, or whether the employee must necessarily be able to bring an action before a court for review of the accuracy of the authority’s determination.
55.      I would point out that, in the absence of prior notification of the collective redundancy in the circumstances of the dispute in the main proceedings, there is nothing in the documents before the Court to suggest that the competent public authority actually fixed, in a manner which was definitive and binding on the employees, the date of expiry of the standstill period provided for in Article 4(1) of Directive 98/59. Consequently, the issue raised by that question is hypothetical and is therefore irrelevant for the purposes of resolving the dispute in the main proceedings. In those circumstances, the presumption of relevance of that question, as recalled above, is rebutted. (32)
56.      In the light of the foregoing, I propose that the Court should declare the fourth question inadmissible.
2.      Substance
57.      In the remainder of this Opinion, I shall address, in the first place, the legal consequences of failure to comply with the obligation to notify the competent public authority under Article 3(1) of Directive 98/59 and, in particular, the effects of the period provided for in Article 4(1) of that directive, before examining, in the second place, the possibility of and conditions for subsequent regularisation of the situation resulting from that notification which was initially not issued.
(a)    The scope of the obligation to notify the competent public authority: the effects of the period provided for in the first subparagraph of Article 4(1) of Directive 98/59
58.      By its first question, the referring court seeks to ascertain, in essence, whether Article 4(1) of Directive 98/59 must be interpreted as meaning that the termination of an employment contract as part of a collective redundancy, which must be notified in advance to the competent public authority under Article 3(1) of that directive, can terminate the employment relationship of an employee only once the standstill period provided for in that article has expired.
59.      In that regard, that court considers that it is crucial to distinguish between the situation of a complete failure to notify the collective redundancy and that of a notification which does not satisfy the formal or substantive conditions laid down by national law or by EU law. (33)
60.      In the present case, as I have already stated, it is apparent from the order for reference that, prior to the termination of DF’s employment contract, the employer did not comply with the obligation of prior notification laid down in the first subparagraph of Article 3(1) of Directive 98/59. (34) This is therefore a situation of a complete failure to give prior notification of the collective redundancy, in respect of which that court explains that, under national law, the employment relationship which has been terminated would continue, in accordance with Paragraph 18(1) of the KSchG, until the expiry of the one-month standstill period.
61.      In that context, the question therefore arises as to the legal consequences of an employer’s failure to comply with the obligations laid down in Articles 3 and 4 of Directive 98/59.
62.      UR and the Commission are divided as to the interpretation to be given to that provision.
63.      In that regard, I would like to recall at the outset that, in accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. The origins of the provisions may also provide information relevant to their interpretation. (35) I shall therefore begin by briefly examining the wording of the provision at issue.
(1)    Wording
64.      Under the first subparagraph of Article 4(1) of Directive 98/59, ‘projected collective redundancies notified to the competent public authority shall take effect not earlier than 30 days after the notification referred to in Article 3(1) without prejudice to any provisions governing individual rights with regard to notice of dismissal’.
65.      In that regard, as the Commission points out, there is no doubt that the termination of an employment contract can terminate the employment relationship only after the expiry of the period provided for in the first subparagraph of Article 4(1) of Directive 98/59. (36)
66.      That interpretation follows, in my view, not only from the clear wording of the first subparagraph of Article 4(1) of Directive 98/59, but also from the context and general scheme of that provision.
(2)    Context and general scheme
67.      It should be recalled at the outset that, once the conditions concerning numbers and periods of time laid down in Article 1 of Directive 98/59 for its application are satisfied, the two sets of procedural obligations imposed on an employer contemplating collective redundancies must be complied with. (37)
68.      As regards, in the first place, the obligations established in the context of the procedure for informing and consulting workers’ representatives, (38) provided for in Article 2 of Directive 98/59, it should be noted that the first subparagraph of Article 2(2) thereof states that 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. (39) In particular, under the first subparagraph of Article 2(3) of that directive, the employers are to supply [workers’ representatives] with all relevant information and in any event notify them in writing of the information referred to in that provision. Thus, the forwarding of information to the competent public authority, as referred to in Article 2(3), second subparagraph of that directive, occurs only for information and preparatory purposes so that the competent public authority can, if necessary, exercise the powers provided for in Article 4 of Directive 98/59 effectively. (40)
69.      As regards, in the second place, the obligations laid down in the context of the notification procedure established by the EU legislature in Articles 3 and 4 of Directive 98/59, it should be recalled that, under Article 3(1) of that directive, ‘employers shall notify the competent public authority in writing of any projected collective redundancies’. (41) I note that that provision contains a substantive rule containing an obligation on the employer to give prior notification of any projected collective redundancies.
70.      In that regard, it should not be overlooked that the fact that that obligation forms part of the procedure for prior notification to the competent public authority implies, contrary to the obligations laid down in the context of the procedure for informing and consulting workers’ representatives, that the workers who will be affected by the collective redundancy have already been designated and that the collective redundancy will certainly take place. Consequently, although there is a clear link between the obligations laid down, first, in Article 2(3) of Directive 98/59 and, second, in Article 3(1) thereof, they are different obligations, which are imposed in the context of two different procedures in the course of a collective redundancy procedure and, therefore, their non-fulfilment has different legal consequences. That difference appears to be the source of the referring court’s doubts.
71.      That having been clarified, I must point out that the Court has held that Articles 3 and 4 of Directive 98/59 provide that the competent public authority must be notified of projected collective redundancies and that such redundancies cannot take effect until the end of a period which that authority must use to seek solutions to the problems raised by them. (42) That search for solutions is, in accordance with Article 4(2) of that directive, the objective of the notification procedure.
72.      More specifically, as the Court has already explained, that obligation to notify must allow the competent public authority to explore, on the basis of all the information forwarded to it by the employer, the possibilities of limiting the negative consequences of those redundancies by means of measures tailored to the data characterising the labour market and economic activity to which those collective redundancies relate. (43) To that end, the period of 30 days provided for in the first subparagraph of Article 4(1) of Directive 98/59 for cases where the employer has fulfilled the obligation to notify laid down in Article 3(1) of that directive corresponds, in the Court’s view, to the ‘minimum period’ which must be available to the competent authority. (44) In that regard, the Court has already stated that, by setting out an express proviso in regard to provisions governing individual rights with regard to notice of dismissal, the first subparagraph of Article 4(1) of that directive is necessarily contemplating a situation in which contracts of employment have already been terminated, thereby setting such a period in motion. (45)
73.      It follows, in my view, that the standstill period has the legal consequence of suspending the effects of the termination of the employment relationship for each worker affected by collective redundancies whose employment contract has been terminated in order, ultimately, to enable the competent public authority to explore possible solutions, in accordance with Article 4(2) of Directive 98/59. That authority is therefore entitled to consider that the employment relationship with the workers concerned does not end before the expiry of the standstill period. Accordingly, I am of the view that the termination of a contract of employment can terminate the employment relationship only after the expiry of the period laid down in the first subparagraph of Article 4(1) of that directive.
74.      That interpretation also seems to me to be supported by the objectives pursued by that directive and its origin.
(3)    Objectives and origin of Directive 98/59
75.      I would point out, first of all, that it is clear from recital 2 of Directive 98/59 that that directive seeks to afford greater protection to workers in the event of collective redundancies while taking into account the need for balanced economic and social development within the European Union. According to recitals 3 and 7 of the directive, the differences still remaining between the provisions in force in the Member States concerning measures apt to alleviate the consequences of collective redundancies are among the matters to be covered by a harmonisation of laws. (46) Moreover, according to recital 4 of that directive, distortions between the levels of protection afforded by national laws with regard to collective redundancies can have a direct effect on the functioning of the internal market. (47)
76.      Next, I would point out that it is apparent from the settled case-law of the Court that the main objective of Directive 98/59 is to make collective redundancies subject to prior consultation with the workers’ representatives and prior notification to the competent public authority. (48) That directive provides for only a partial harmonisation of the rules for the protection of workers in the event of collective redundancies, that is to say, harmonisation of the procedure to be followed when such redundancies are to be effected. (49)
77.      Thus, the Court has already stated in the context of the consultation and information procedure, inter alia, that, in the light of the purpose of the obligation to forward information and of the fact that it occurs at a stage where the collective redundancies are merely contemplated by the employer, the action of the competent public authority is intended not to deal with each worker’s individual situation but to gain an overall understanding of the projected collective redundancies. (50)
78.      Similarly, it could be argued that the obligation to issue prior notification of collective redundancies cannot be intended to confer individual protection on the workers affected by that collective redundancy either. (51) It is sufficient to point out, in that regard, that Directive 98/59 does not seek to establish a mechanism of general financial compensation at Union level in the event of loss of employment. (52) The means of protection to be afforded to a worker who has been unlawfully dismissed as part of a collective redundancy, following a failure to comply with the criteria on the basis of which the employer is required to determine the workers to be dismissed, are manifestly unrelated to the notification and consultation obligations arising from that directive. According to the Court, neither those means nor those selection criteria fall within the scope of that directive. Consequently, they remain within the Member States’ competence. (53)
79.      That said, the main objective of Directive 98/59 of making collective redundancies subject to prior consultation with the workers’ representatives and prior notification of the competent public authority would be compromised if, contrary to what is provided for in Article 4(1) of that directive, the employer could terminate an employee’s employment relationship before notification and, therefore, before the expiry of the standstill period, which begins to run from the date of that notification, thus preventing the competent public authority from seeking solutions to the problems raised by the projected collective redundancies, as required by Article 4(2) of that directive.
80.      Finally, I must emphasise that, contrary to UR’s submissions, that interpretation is also supported by the legislative history of Directive 98/59. That directive recast Directive 75/129/EEC, (54) reproducing, in Articles 3 and 4 thereof, Articles 3 and 4 of the latter directive without making any substantial changes. (55) Thus, the fact that those articles have remained unchanged attests, in my view, to the determination of the EU legislature to lay down in those provisions the obligation to give prior notification in writing of any projected redundancies to the competent public authority, those redundancies taking effect at the earliest 30 days after such notification, thus placing that period of time at the disposal of that authority.
81.      It is true, as UR points out, that the Commission’s initial proposal for Directive 75/129 provided for the insertion of an obligation on the Member States to ensure ‘that judicial procedures exist for the enforcement of obligations under this Directive at the suit of the workers’ representatives and workers and in particular procedures rendering null and void the collective redundancies concerned, notwithstanding the availability of recourse to other procedures’. (56) UR infers from this that the EU legislature did not follow the Commission’s proposal to include the obligation to declare collective redundancies ineffective in the event of non-compliance with Directive 98/59. Accordingly, it submits that those legal consequences do not stem from that directive and could therefore be provided for in the legislation of the Member States.
82.      However, I am of the view that UR’s argument does not call into question the interpretation set out above according to which the employer cannot terminate the employment relationship of an employee before notification and, therefore, before the expiry of the standstill period, which begins to run from the date of that notification. (57) Moreover, that argument tends to confuse, on the one hand, the Commission’s (unsuccessful) proposal to provide for specific judicial procedures in the Member States for the purpose of enforcing the obligations under the future directive and, on the other, the legal consequences of non-compliance with Directive 98/59. Although the invalidity of the collective redundancies does not follow explicitly from the wording of the provisions of that directive, it nevertheless follows from the wording of the first subparagraph of Article 4(1) and from the logic and scheme of that directive. It is sufficient to observe that, in accordance with that provision, read a contrario, projected collective redundancies notified to the competent public authority may not take effect before the expiry of the period of 30 days following notification, with the result that that legal consequence is implicitly envisaged by that provision. (58)
83.      Accordingly, the interpretation according to which it would be open to the Member States to provide for different legal consequences, in particular administrative penalties, as UR has suggested, is contrary, first, to the main objective of Directive 98/59, which is to provide a framework for the procedure for collective redundancies, that is to say, to provide for consultation with workers’ representatives and notification of the competent authority prior to such dismissals and, second, to the objective of affording greater protection to workers in the event of collective redundancies. (59) Moreover, such an interpretation would not guarantee fair competition. (60)
84.      To sum up, it is clear to me that failure by the employer concerned to comply with the obligations laid down in Articles 3 and 4 of Directive 98/59 must not be without consequence, so as not to undermine not only the objective of that directive but also its effectiveness.
85.      Accordingly, I am of the view that the answer to the first question referred for a preliminary ruling is that Article 4(1) of Directive 98/59 must be interpreted as meaning that the termination of an employment contract as part of a collective redundancy, which must be notified in advance to the competent public authority under Article 3(1) of that directive, can terminate the employment relationship of an employee only once the standstill period provided for in that article has expired.
(b)    The possibility of and conditions for subsequent regularisation of prior notification
86.      By its third question, the referring court is essentially asking whether Article 3(1) and Article 4(1) of Directive 98/59 must be interpreted as meaning that an employer who has terminated contracts of employment without giving prior notification of the collective redundancies to the competent public authority, within the meaning of Article 3(1), first subparagraph thereof, may subsequently give such notification with the consequence that, after the expiry of the standstill period provided for by Article 4(1), first subparagraph of that directive, the employment relationships may be terminated as a result of the earlier terminations of contracts of employment.
87.      The referring court considers that a termination in the context of a collective redundancy subject to the obligation of prior notification can take effect only once such notification has been issued. According to that court, the effects of such a termination are ‘suspended’, pursuant to Paragraph 18(1) KSchG, until the notification which was initially omitted has been effected, in order to enable the competent employment agency to find employment for the employees affected by the collective redundancies. In that regard, that court considers that the fact that the standstill period does not begin to run until the subsequent notification ensures that the competent public authority has the minimum period, namely the standstill period, to seek solutions to the problems raised by the collective redundancies, in accordance with Article 4(2) and (3) of Directive 98/59. In its view, this is not precluded by the judgment in Junk.
88.      UR and the Commission disagree as to whether an employer who has terminated employment contracts without prior notification may give notification subsequently, with the consequence that the terminations of the employment contracts concerned take effect on expiry of the standstill period, without the need for the employment contract to be terminated again.
89.      Contrary to UR’s submission that the validity of the collective redundancies must not be affected in the event of non-compliance with Directive 98/59 and that the employment relationship must end on expiry of the notice period, it follows from my analysis of the first question that, in so far as the termination of an employment contract as part of a collective redundancy, which must be notified, can terminate the employment relationship of an employee only once the standstill period provided for in that directive has expired, an interpretation to the effect that terminations may take effect before prior notification is not possible in the light of the wording, scheme and objectives of that directive. Nor does such an interpretation follow from the judgment in Junk.
90.      First, as regards the importance of the procedural obligations laid down in Directive 98/59, it should once again be recalled that the partial harmonisation of the rules for the protection of workers in the event of collective redundancies provided for in Directive 98/59 concerns the procedure to be followed when such redundancies are to be effected. (61) That means that, in order to terminate contracts of employment, the employer contemplating collective redundancies must comply with the obligations imposed by that directive, which are structured around two separate, successive procedures concerning, first, information and consultation (Article 2 of that directive) and, second, notification (Articles 3 and 4 of that directive). (62) In other words, those two procedures form a two-stage sequence in which, first, the framework for information and consultation by the employer with workers’ representatives on contemplated collective redundancies was conceived by the EU legislature as being prior to notifying the competent public authority of the projected collective redundancies and, second, that mandatory notification is understood as preceding the projected termination of contracts of employment.
91.      I would point out, in that regard, that a literal, systematic and teleological interpretation does not support the possibility of either reversing the order of the obligations on the employer laid down in Articles 2, 3 and 4 of Directive 98/59 or omitting them. (63) In particular, it should be borne in mind that, under the fourth subparagraph of Article 3(1) of that directive, the notification ‘shall contain all relevant information concerning the projected collective redundancies and the consultations with workers’ representatives provided for in Article 2, and particularly the reasons for the redundancies, the number of workers to be made redundant, the number of workers normally employed and the period over which the redundancies are to be effected’. (64)
92.      In other words, it follows from the links between the two procedures provided for in Directive 98/59 that, in accordance with Article 3(1) thereof, the role of the competent public authority depends on the conduct and outcome of the procedure for informing and consulting workers’ representatives. The obligation to forward information in writing from the employer to workers’ representatives, laid down in the first subparagraph of Article 2(3) of that directive, is intended to gain an overall understanding of the projected collective redundancies. Thus, depriving the competent public authority of the transmission of information, referred to in Article 2(3), second subparagraph, of that directive, would prevent it from exercising effectively its powers provided for in Article 4 thereof. (65)
93.      It follows, in my view, that, in order to assess the importance of compliance with the procedural obligations laid down by Directive 98/59, it should be borne in mind that those procedures were designed by the EU legislature to contribute to the protection of employees, and, as a consequence, to ensure, first, that, when making collective redundancies, the employer consults and informs the workers’ representatives and, second, that it notifies the competent public authority in writing of any projected collective redundancies, so as to preserve legal certainty for those workers throughout the collective redundancy procedure.
94.      Second, as regards the Court’s case-law, as I have already stated, it is clear from the judgment in Junk that an employer cannot terminate contracts of employment before he has engaged in those procedures. (66) That is why the Court recalled that, under the first subparagraph of Article 4(1) of Directive 98/59, the termination of contracts of employment may take effect only after expiry of the period of 30 days following notification, which corresponds to the minimum period which must be available to the competent authority for the purpose of seeking solutions for the workers concerned. (67) Thus, the Court emphasised that the period of notice expires only subject to compliance with that period following notification and that that proviso in regard to the expiry of a period of notice differing from that provided for by that directive would make no sense if no period of notice had started to run. (68) In those circumstances, the Court held that Articles 3 and 4 of that directive do not preclude termination of the contracts of employment during the course of the procedure which they institute, on condition that such termination occurs after the projected collective redundancies have been notified to the competent public authority. (69)
95.      Third and lastly, I share the Commission’s view that that interpretation, first, ensures not only that the competent public authority has an actual standstill period for the purpose of seeking solutions for the workers concerned, but also that those workers can assume that the termination of their employment contract will take effect in their regard. Second, such an interpretation allows the workers concerned to use that period in order to verify whether the notification was given in accordance with the requirements applicable to collective redundancies under Directive 98/59. That interpretation is thus capable of ensuring the protection of employees in the event of collective redundancies while avoiding the adverse effects resulting from the employer’s failure to comply with the procedural obligations laid down by that directive, namely, first, the failure to inform and consult the workers’ representatives and, second, the uncertainty of those workers as to when the termination of their employment contracts takes effect, in such a way as to preserve their legal certainty. (70)
96.      Accordingly, unlike the referring court, I do not consider that the legal consequences of the late issue of a proper notification can consist of a temporary suspension of the legal effects of that termination of employment contracts. The sequence of the procedures and, correspondingly, of the obligations laid down in those procedures, as conceived by the EU legislature, would be called into question if the employer was able to issue the notification after terminating the employment contracts concerned by means of temporary suspension of that kind. In my view, to consider that, after the expiry of the standstill period provided for by the first subparagraph of Article 4(1) of Directive 98/59, the employment relationships may be terminated as a result of the earlier terminations of contracts of employment, would run counter to the effectiveness of that directive.
97.      In the present case, since the employment contracts at issue were terminated without prior notification of the collective redundancy being issued, it follows from the first subparagraph of Article 4(1) of Directive 98/59 that those terminations never took effect in so far as, in the absence of that notification, the 30-day period never began to run.
98.      I am therefore of the view that Article 3(1) and Article 4(1) of Directive 98/59 must be interpreted as meaning that an employer who has terminated contracts of employment without giving prior notification of the collective redundancies to the competent public authority, within the meaning of Article 3(1), first subparagraph, thereof, cannot subsequently give such notification, since the result of that is that, after the expiry of the standstill period provided for by Article 4(1), first paragraph of that directive, the employment relationships may be terminated as a result of the earlier terminations of contracts of employment. In order to regularise the situation resulting from a notification which was initially not issued, the employer must first notify the competent public authority properly of the projected collective redundancies and then terminate the employment contracts concerned again, such terminations taking effect, in accordance with the first subparagraph of Article 4(1) of Directive 98/59, at the earliest 30 days after submission of the notification. (71)
V.      Conclusion
99.      Having regard to all the foregoing considerations, I propose that the Court should reply to the Second Chamber of the Bundesarbeitsgericht (Federal Labour Court, Germany) as follows:
1.      Article 4(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, as amended by Directive (EU) 2015/1794 of the European Parliament and of the Council, of 6 October 2015,
must be interpreted as meaning that the termination of an employment contract as part of a collective redundancy, which must be notified in advance to the competent public authority under Article 3(1) thereof, can terminate the employment relationship of an employee only once the standstill period provided for in that article has expired.
2.      Article 3(1) and Article 4(1) of Directive 98/59, as amended by Directive 2015/1794,
must be interpreted as meaning that an employer who has terminated contracts of employment without giving prior notification of the collective redundancies to the competent public authority, within the meaning of Article 3(1), first subparagraph, thereof, cannot subsequently give such notification, with the result that, after the expiry of the standstill period provided for by Article 4(1), first paragraph, of that directive, the employment relationships may be terminated as a result of the earlier terminations of contracts of employment.
In order to regularise the situation resulting from a notification which was initially not issued, the employer must first notify the competent public authority properly of the projected collective redundancies and then terminate the employment contracts concerned again, such terminations taking effect, in accordance with the first subparagraph of Article 4(1) of Directive 98/59, as amended by Directive 2015/1794, at the earliest 30 days after submission of the notification.
1      Original language: French.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      Council Directive of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16) as amended by Directive (EU) 2015/1794 of the European Parliament and of the Council of 6 October 2015 (OJ 2015 L 263, p. 1) (‘Directive 98/59’).
3      Judgment of 27 January 2005 (C‑188/03, ‘the judgment in Junk’, EU:C:2005:59, paragraph 53).
4      On the composition of the Grand Chamber, see Wullenkord, S., ‘ArbGG §
45(1)’, in Rolfs, C., Giesen, R., Meßling, M., Udsching, P., Beck’scher Online-Kommentar, 73rd ed., Beck, Munich, 1 September 2024, paragraph 1.
5      See, inter alia, judgments of 30 June 1966, Vaassen-Göbbels (61/65, EU:C:1966:39, p. 395); of 17 September 1997, Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 23); of 31 May 2005, Syfait and Others (C‑53/03, EU:C:2005:333, paragraph 29), and of 26 September 2024, Fautromb (C‑368/23, EU:C:2024:789, paragraph 35 and the case-law cited). The criterion of impartiality was added by the Court in the judgment of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraph 48).
6      That aspect is, however, raised in Case C‑402/24, Sewel, currently pending before the Court, brought by the Sixth Chamber in the context of another dispute in the main proceedings concerning situations and facts which are different from but related to those in the present case (see, in that regard, footnote
33 of this Opinion). That chamber expresses doubts as to the adversarial nature of the procedure referred to in Paragraph 45 of the ArbGG and, accordingly, as to whether the Second Chamber is a ‘court or tribunal’ within the meaning of Article 267 TFEU. In that regard, it should be borne in mind that Article 267 TFEU does not make a reference to the Court subject to that procedure being inter partes. It is sufficient, at this stage, to reiterate that the Court has already held that the requirement that the procedure must be inter partes is not an absolute criterion for determining whether a body is a court or tribunal within the meaning of that article. However, there must be a possibility for the parties to be heard, without there being a need for an inter partes hearing (see, inter alia, judgments of 17 September 1997, Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 31); of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 63), and of 31 January 2013, D. and A. (C‑175/11, EU:C:2013:45, paragraph 88)). In any event, even though, in the consultation procedure in the main proceedings before the Second Chamber, the parties did not have to formally object as applicant and defendant, those parties nevertheless clearly have the opportunity to submit written and oral observations. It is apparent from the documents before the Court that the hearing before the Sixth Chamber was suspended pending the decision of the Second Chamber. Moreover, German academic writers commenting on Paragraph 45 of the ArbGG explain in this respect that the parties have the opportunity to submit observations in the context of a possible submission to the Grand Chamber of the Bundesarbeitsgericht (Federal Labour Court). Furthermore, if the resolution of the dispute pending before the chamber seised (in this case, the Sixth Chamber) requires a new hearing, the decision of the Grand Chamber is communicated to the parties and a hearing is then held. On the contrary, where a hearing is no longer necessary at that stage, the parties must be heard (see Zimmermann, B., ‘ArbGG §
45 Großer Senat’, Natter, E., and Gross, R. (dir.), Arbeitsgerichtsgesetz, Handkommentar, 2nd Edition, Nomos, Baden-Baden, 2013, paragraphs 1 to 27, § 23 and 24).
7      Judgments of 16 December 1981, Foglia (244/80, EU:C:1981:302, paragraph 33), and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, ‘the judgment in W.Ż.’, EU:C:2021:798, paragraph 83).
8      See, inter alia, judgments of 31 May 2005, Syfait and Others (C‑53/03, EU:C:2005:333, paragraph 29); of 31 January 2013, Belov (C‑394/11, EU:C:2013:48, paragraph 39); in W.Ż. (paragraph 84 and the case-law cited), and of 26 September 2024, Fautromb (C‑368/23, EU:C:2024:789, paragraph 36 and the case-law cited).
9      See, to that effect, judgments of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 44 and 45); of 23 November 2023, Commissaire général aux réfugiés et aux apatrides (Family unity) (C‑374/22, EU:C:2023:902, paragraph 15), and of 16 May 2024, Toplofikatsia Sofia (Concept of the defendant’s domicile) (C‑222/23, EU:C:2024:405, paragraph 40 and the case-law cited).
10      See judgment of 16 May 2024, Toplofikatsia Sofia (Concept of the defendant’s domicile) (C‑222/23, EU:C:2024:405, paragraph 41 and the case-law cited).
11      According to my understanding of Paragraph 45 of the ArbGG, and subject to verification by the referring court, the German judicial proceedings under way in the present case comprise several stages, namely the dispute pending before the chamber seised (in this case, the Sixth Chamber), the consultation of another chamber in the event of a difference of interpretation (in this case, the Second Chamber), bringing the matter before the Grand Chamber if the requested chamber declares that it maintains its position and the judgment delivered by the chamber seised to resolve the dispute pending before it.
12      I would point out that, in the judgment in W.Ż.
(paragraph 94 and the case-law cited), the Court held that requests for a preliminary ruling from the Sąd Najwyższy (Izba Cywilna) (Supreme Court (Civil Chamber), Poland), sitting as a panel of seven judges, with the aim of allowing it to settle the questions raised in limine litis before the Sąd Najwyższy (Izba Cywilna) (Supreme Court (Civil Chamber)), sitting as a panel of three judges, were admissible in order to enable the latter court to rule on the substance of the case in the main proceedings pending before it.
13      In that regard it should be recalled that the Court has already dealt with the substance of a reference for a preliminary ruling in which a question of a declaratory nature arose, since that reference was permitted under national law and that question met an objective need for the purpose of settling the dispute properly brought before the referring court. See judgment of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 31 and the case-law cited).
14      See footnote
6 of this Opinion. See, also, Wullenkord, S., ArbGG73. Ed. 1.9.2024, ArbGG § 45(1), in Rolfs, C., Giesen, R., Meßling, M., Udsching, P., Beck’scher Online-Kommentar, paragraph 1, op. cit.
15      See, by analogy, judgment of 11 June 2015, Fahnenbrock and Others (C‑226/13, C‑245/13 and C‑247/13, EU:C:2015:383, paragraph 30 and the case-law cited). Emphasis added. Those joined cases concerned questions on the interpretation of procedural provisions of EU law which concerned the main proceedings only indirectly.
16      See, by analogy, judgment of 17 February 2011, Weryński (C‑283/09, EU:C:2011:85, paragraph 42).
17      Judgment of 16 October 1997 (C‑69/96 to C‑79/96, EU:C:1997:492).
18      Council Directive of 15 September 1986 on specific training in general medical practice (OJ 1986 L 267, p. 26).
19      Opinion of Advocate General Ruiz-Jarabo Colomer in Garofalo and Others (C‑69/96 to C‑79/96, EU:C:1997:330, point 27).
20      Judgment of 16 October 1997, Garofalo and Others (C‑69/96 to C‑79/96, EU:C:1997:492, paragraphs 24 and 27). Emphasis added.
21      Admittedly, in its order of 9 January 2024, Sąd Najwyższy (C‑658/22, EU:C:2024:38, paragraph 35), the Court declared that a request for a preliminary ruling made by the Civil Chamber (full composition) of the Sąd Najwyższy (Supreme Court) was manifestly inadmissible. When the latter is hearing legal questions raised by the First President of that court, in order to put an end to differences of interpretation between the lower courts, that composition is to rule by a general decision which acquires the force of a legal principle, without being called upon to resolve any dispute between the parties.  However, in the present case, as I have already pointed out, the situation is different in that the order of the Second Chamber which will be made in the context of the internal consultation phase and which will take into account the judgment to be delivered by the Court will enable the Sixth Chamber to rule on the substance of the dispute pending before it (see, in that regard, points 35 and 40 of this Opinion).
22      Judgments of 16 January 1974, Rheinmühlen-Düsseldorf (166/73, EU:C:1974:3, paragraph 4); of 9 March 2010, ERG and Others (C‑378/08, EU:C:2010:126, paragraph 32); of 15 November 2012, Bericap Záródástechnikai (C‑180/11, EU:C:2012:717, paragraph 55); and of 6 November 2014, Cartiera dell’Adda (C‑42/13, EU:C:2014:2345, paragraph 27).  See, also, judgment of 18 May 2021, Asociaţia “Forumul Judecătorilor din România” and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 133).
23      See, inter alia, judgments of 5 April 2016, PFE (C‑689/13, EU:C:2016:199, paragraph 34), and of 23 November 2021, IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:949, paragraph 70).
24      See points 33 and 34 of this Opinion.
25      Order of 26 January 1990, Falciola (C--286/88, EU:C:1990:33, paragraph 7). See, also, judgments of 16 July 1992, Meilicke (C‑83/91, EU:C:1992:332, paragraph 22); of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraph 83); and of 24 October 2024, Kwantum Nederland and Kwantum België (C‑227/23, EU:C:2024:914, paragraph 33).
26      See judgment of 1 December 1965, Schwarze (16/65, EU:C:1965:117), and order of 5 March 1986, Wünsche (69/85, EU:C:1986:104, paragraph 12).
27      Judgments of 29 November 1978, Redmond (83/78, EU:C:1978:214, paragraph 25); of 21 April 1988, Pardini (338/85, EU:C:1988:194, paragraph 8); of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 41); and of 14 September 2023, Tuk Tuk Travel (C‑83/22, EU:C:2023:664, paragraph 28).
28      See judgments of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 35); of 15 December 1995, Bosman (C‑415/93, EU:C:1995:463, paragraph 59); of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709, paragraph 35), and of 6 October 2022, Contship Italia (C‑433/21 and C‑434/21, EU:C:2022:760, paragraph 23).
29      See judgment of 7 November 2024, Adusbef (Morandi Bridge) (C‑683/22, EU:C:2024:936, paragraph 38 and the case-law cited).
30      See point
49 of this Opinion.
31      See, by analogy, judgment of 10 November 2016, Private Equity Insurance Group (C‑156/15, EU:C:2016:851, paragraph 58).
32      See point 49 of this Opinion.
33      It is apparent from the order for reference that the present case concerns the situation in which no notification of the collective redundancy was given at all. By contrast, in Case C‑402/24, Sewel, currently pending before the Court, the referring court has asked the Court, inter alia, about the possibility of correcting or supplementing an incorrect notification under Article 3 of Directive 98/59.
34      See point 51 of this Opinion.
35      See, inter alia, judgment of 13 July 2023, G GmbH (C‑134/22, ‘the judgment in G GmbH’, EU:C:2023:567, paragraph 25 and the case-law cited).
36      Judgment in Junk (paragraph 50).
37      Although Articles 2 and 3 of Directive 98/59 refer to each other, a distinction must be drawn between the two procedures provided for in that directive. As Advocate General Tizzano observed in his Opinion in Junk (C‑188/03, EU:C:2004:571, points 57 and 61), that directive sets out ‘a procedural sequence which is broken down into two distinct and consecutive stages’. As regards the notification procedure, ‘the notification must refer to [the consultation and information] stage (third subparagraph of Article 3(1) of that directive)’.
38      That procedure precedes any termination of employment contracts. See Opinion of Advocate General Tizzano in Junk (C‑188/03, EU:C:2004:571, point 58).
39      See judgment of 17 March 2021, Consulmarketing (C‑652/19, EU:C:2021:208, paragraph 40 and the case-law cited).
40      Judgment in G GmbH (paragraph 36).
41      Emphasis added. In that regard, it should be noted that the employer’s obligations laid down by Directive 98/59 in the context of the procedure for informing and consulting workers’ representatives and those provided for in the context of the procedure for the prior notification of the competent public authority, as Advocate General Pikamäe observed in his Opinion in G GmbH (C‑134/22, EU:C:2023:268, points 38 to 41), ‘both … contribute to the protection of employees in the event of collective redundancies’ and ‘are not entirely separated. On the contrary, there are links between those two obligations, from which it follows that the role of the competent public authority depends on the course and outcome of the procedure for informing and consulting workers’ representatives. That link is established in particular by … Article 3(1) [of that directive]’).
42      On the interpretation of Article 2(3) of Directive 98/59, see judgment of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraph 40) and judgment in G GmbH (paragraph 35).
43      In that regard, it should be recalled that the first subparagraph of Article 4(3) of Directive 98/59 gives Member States the option to ‘grant the competent public authority the power to extend the initial period to 60 days following notification [of the projected collective redundancies] where the problems raised by the projected collective redundancies are not likely to be solved within the initial period’. By the same token, in accordance with the second subparagraph of Article 4(1) of that directive, Member States have the option of reducing that period by 30 days.
44      See to that effect, judgment in Junk (paragraph 51).
45      See to that effect, judgment in Junk (paragraph 52). According to the Court, the proviso in regard to the expiry of a period of notice differing from that provided for by Directive 98/59 would make no sense if no period of notice had started to run.
46      See judgment of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraph 27).
47      As the Court has already pointed out, the protective rules laid down by Directive 98/59 are also intended to harmonise the costs which those rules entail for EU undertakings. See, to that effect, judgments of 13 May 2015, Lyttle and Others (C‑182/13, EU:C:2015:317, paragraph 43 and the case-law cited), and of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraph 41).
48      See, to that effect, judgment of 17 March 2021, Consulmarketing (C‑652/19, EU:C:2021:208, paragraph 40 and the case-law cited).
49      See, in that regard, points 67 and 69 of this Opinion. To that end, as Advocate General Pikamäe observed in his Opinion in G GmbH
(C‑134/22, EU:C:2023:268, point 23), Directive 98/59 helps to ensure fair competition by reducing the risk that an employer might choose to take advantage of the existence of less protective employment legislation in certain Member States.
50      See judgment in G GmbH (paragraph 37).
51      In that regard, academic writers observe that Directive 98/59 differs from many other EU directives on labour law in that it does not offer workers substantial social protection in terms of specific rights, see, inter alia, van der Mei, A.P., ‘Collective redundancies: judicial fine-tuning of a classic concept of EU labour law’, European Law Review,
Vol. 42(1), 2017, p. 82 to 91, in particular p. 82 and 91.
52      See, in that regard, judgment of 17 March 2021, Consulmarketing (C‑652/19, EU:C:2021:208, paragraph 41 and the case-law cited). For the sake of completeness, it is appropriate to recall that, correspondingly, the Court pointed out in the judgment of 30 April 2015, USDAW and Wilson (C‑80/14, EU:C:2015:291, paragraph 65), that Article 5 of Directive 98/59 gives Member States the right to apply or to introduce laws, regulations or administrative provisions which are more favourable to workers or to promote or to allow the application of collective agreements more favourable to workers. However, it has also stated that a Member State cannot, in particular, adopt a national measure which, although ensuring an enhanced level of protection of workers’ rights against collective redundancies, would, however, have the consequence of depriving Articles 2 to 4 of Directive 98/59 of their practical effect. That would be so in the case of national legislation under which collective redundancies require the prior consent of a public authority if, on account, for example, of the criteria in the light of which that authority is called upon to take a decision or of the specific way in which it interprets and applies those criteria, any actual possibility for the employer to effect such collective redundancies were, in practice, ruled out (judgment of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraphs 35 to 38)).
53      Judgment of 17 March 2021, Consulmarketing (C‑652/19, EU:C:2021:208, paragraph 42).
54      Council Directive of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1975 L 48, p. 29). That directive was amended by Council Directive 92/56/EEC of 24 June 1992 amending Directive 75/129/EEC on the approximation of the laws of the Member States relating to collective redundancies (OJ 1992 L 245, p. 3) before being recast by Directive 98/59.
55      See, in that regard, the Commission’s Proposal for a directive of the Council amending Directive 75/129 [COM(91) 292 final], of 13 November 1991, p. 14 and the Commission’s amended proposal for a directive to the Council [COM(92) 127 final] of 31 March 1992, p. 2 and 3. Obligations similar to those contained in Articles 3 and 4 of Directive 98/59 were already provided for in Article 1(1) and Article 2 of the initial proposal for Directive 75/129 (see the Commission’s proposal to the Council of 8 November 1972, COM(72) 1400, p. 5 and 6).
56      See the proposal for Article 5a in the Proposal for a directive of the Council amending Directive 75/129, [COM(91) 292 final,], of 13 November 1991, p. 20 and the amended Proposal for a directive of the Council amending Directive 75/129 [COM(92) 127 final], p. 14. Emphasis added.
57      See, inter alia, point 79 of this Opinion.
58      See Paragraph 18(1) and (2) of the KSchG.
59      See recital 2 of Directive 98/59 and point 75 of this Opinion.
60      In particular, it could be more attractive for the employer to pay a fine than to maintain workers’ remuneration for 30 days. See, in that regard, footnote
49 of this Opinion.
61      See point 76 of this Opinion.
62      See points 67 to 69 of this Opinion.
63      With regard to the main objective of Directive 98/59, see point 76 of this Opinion.
64      Emphasis added. In that regard, as some academic writers point out, prior notification can be carried out correctly only after the information and consultation procedure has been fully completed. See, inter alia, to that effect, Dorssemont, F._‘Case C‑55/02, Commission v. Portuguese Republic; Case C‑188/03, Imtraud Junk v. Wolfgang Kühnel’, Common Market Law Review, vol. 43, 2006, p. 225 to 241, in particular p. 240.
65      See points 68 and 70 of this Opinion, and the case-law cited.
66      Judgment in Junk (paragraph 41).
67      See to that effect, judgment in Junk (paragraphs 50 and 51). See points
67 to 69 of this Opinion.
68      See to that effect, judgment in Junk (paragraph 52). See point
72 of this Opinion.
69      Judgment in Junk (paragraph 53).
70      See point 93 of this Opinion.
71      As the Commission observes, it is clear from the order for reference that the termination of DF’s employment contract, by letter dated 2 December 2020, never took effect because of the lack of notification. In order to regularise that situation, the employer first notified the competent public authority after the notice period had expired, namely on 31 March 2021, then, on 21 April 2021, it terminated the employment contract again, the notice period for which expired on 31 July 2021.