Keywords

Summary



Keywords

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1. Social policy ° Approximation of laws ° Collective redundancies ° Directive 75/129 ° Obligation on employers to inform and consult workers' representatives ° National rules not providing for a system for the designation of workers' representatives in the event of opposition by an employer ° Not permissible

(Council Directive 75/129, Arts 2 and 3)

2. Social policy ° Approximation of laws ° Collective redundancies ° Directive 75/129 ° Collective redundancy ° Concept ° Dismissal of workers resulting from new working arrangements within an undertaking unconnected with its volume of business ° Included

(Council Directive 75/129, Art. 1(1)(a))

3. Social policy ° Approximation of laws ° Collective redundancies ° Directive 75/129 ° Obligation on employers to inform and consult workers' representatives ° National rules which fail to impose an obligation to seek agreement and limit the scope of the duty to consult ° Not permissible

(Council Directive 75/129, Art. 2)

4. Social policy ° Approximation of laws ° Collective redundancies ° Directive 75/129 ° Obligation on Member States to penalize infringements of Community rules ° Scope ° Penalty imposed on an employer who has failed to comply with his obligation to inform and consult workers' representatives ° Compensation which may be set off against amounts due to the employee under his contract of employment and by reason of its breach ° Non-deterrent sanction ° Not permissible

(EEC Treaty, Art. 5; Council Directive 75/129)

Summary

1. Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for the designation of workers' representatives in an undertaking where an employer refuses to recognize such representatives, allow an employer to frustrate the protection provided by Articles 2 and 3 of Directive 75/129 must be regarded as contrary to the provisions of that directive.

2. According to Article 1(1)(a) of Directive 75/129, the directive applies to collective redundancies in the sense of dismissals for one or more reasons not related to the individual workers concerned, including dismissals resulting from new working arrangements within an undertaking unconnected with its volume of business.

Its scope cannot for that reason be limited to cases of redundancy defined as resulting from a cessation or reduction of the business of an undertaking or a decline in demand for work of a particular type.

3. National rules which merely require an employer to consult trade union representatives about proposed dismissals, to "consider" representations made by such representatives and, if he rejects them, to "state his reasons", whereas Article 2(1) of the directive requires the workers' representatives to be consulted "with a view to reaching an agreement" and Article 2(2) lays down that such consultation must "at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and mitigating the consequences", fail correctly to transpose Directive 75/129.

4. Where a Community directive does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.

In the case where an employee may be entitled to payment of various amounts under his contract of employment and by reason of its breach, an award which may be set off against such amounts cannot be regarded as sufficiently deterrent for an employer who, in the event of collective redundancies, fails to comply with his obligations under Directive 75/129 to consult and inform his workers' representatives.