Joined Cases C‑61/17, C‑62/17 and C‑72/17

Miriam Bichat and Others

v

Aviation Passage Service Berlin GmbH & Co. KG

(Requests for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg)

(Reference for a preliminary ruling — Social policy — Collective redundancies — Directive 98/59/EC — First subparagraph of Article 2(4) — Definition of ‘undertaking controlling the employer’ — Procedures for consultation of workers — Burden of proof)

Summary — Judgment of the Court (Fifth Chamber), 7 August 2018

Social policy — Approximation of laws — Collective redundancies — Directive 98/59 — Procedures for informing and consulting employees — Definition of ‘undertaking controlling the employer’ — Scope — Autonomous and uniform interpretation

(Council Directive 98/59, Art. 2(4), first subpara.)

The first subparagraph of Article 2(4) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that the term ‘undertaking controlling the employer’ covers all undertakings linked to that employer by shareholdings in the latter or by other links in law which allow it to exercise decisive influence in the employer’s decision-making bodies and compel it to contemplate or to plan for collective redundancies.

In that regard, it must be noted, first, that the first subparagraph of Article 2(4) of Directive 98/59 does not define ‘undertaking controlling the employer’, nor does it refer to the law of the Member States on that issue. According to the Court’s settled case-law, the need for uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union (see, inter alia, judgments of 27 January 2005, Junk, C‑188/03, EU:C:2005:59, paragraphs 29 and 30, and of 13 May 2015, Lyttle and Others, C‑182/13, EU:C:2015:317, paragraph 26 and the case-law cited).

In those circumstances, it follows from an interpretation of the origins and the objective of the first subparagraph of Article 2(4) of Directive 98/59, first, that the term ‘undertaking controlling the employer’ covers all undertakings which, by virtue of belonging to the same group or having a shareholding that gives it the majority of votes in the general meeting and/or the decision-making bodies within the employer, are able to require the latter to adopt a decision contemplating or planning for collective redundancies.

Moreover, situations in which an undertaking, while not having the majority of votes referred to in the preceding paragraph, is able to exercise decisive influence within the meaning of paragraph 31 of this judgment, which is expressed in the results of votes in company bodies owing, inter alia, to the employer having dispersed capital, a relatively low level of participation by the members at general meetings or the existence of pacts between members within that employer, must also be regarded as falling within that notion.

Second, in order to ensure protection of the principle of legal certainty, purely factual criteria such as the existence of a common patrimonial interest between the employer and the other undertaking or the ‘undertaking’s own best interests to satisfy its information, consultation and notification obligations provided for by Directive 98/59’, put forward by the Commission in its written and oral submissions, cannot establish the existence of a situation in which an undertaking controls the employer within the meaning of the first subparagraph of Article 2(4) of Directive 98/59.

(see paras 29, 40-42, 45, operative part)