CELEX: 62002CJ0055
Language: en
Date: 2004-10-12
Title: Judgment of the Court (Second Chamber) of 12 October 2004.#Commission of the European Communities v Portuguese Republic.#Member State's failure to fulfil obligations - Articles 1, 6 and 7 of Directive 98/59/EC - Concept of 'collective redundancy' - Rules governing dismissals assimilated to redundancies - Incomplete transposition.#Case C-55/02.

Case C-55/02
      Commission of the European Communities
      v
      Portuguese Republic
      (Failure of a Member State to fulfil obligations – Articles 1, 6 and 7 of Directive 98/59/EC – Definition of ‘collective redundancy’ – Rules governing dismissals assimilated to redundancies – Incomplete transposition)
      Summary of the Judgment
      Social policy – Approximation of laws – Collective redundancies – Directive 98/59 – Definition of collective redundancy –
            Termination of contract of employment without the consent of the worker dependent on external circumstances not contingent
            on the employer’s will – Included
      (Council Directive 98/59, Art. 1(1)(a))
      The concept of ‘redundancy’, as mentioned in Article 1(1)(a) of Directive 98/59 on the approximation of the laws of the Member
         States relating to collective redundancies, has meaning in Community law and may not be defined by any reference to the laws
         of the Member States. It has to be interpreted as including not only redundancies for structural, technological or cyclical
         reasons, but any termination of contract of employment not sought by the worker, and therefore without his consent. Therefore,
         termination of a contract of employment without the worker’s consent cannot escape the application of the directive just because
         it depends on external circumstances not contingent on the employer’s will. The objectives of the directive which is designed,
         inter alia, to strengthen the protection of workers in the case of collective redundancies would be attained only in part
         if such a termination of a contract of employment were to be excluded from the body of rules laid down by the directive.
      
      (see paras 49-50, 52-53, 60, 66, operative part 1)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Second Chamber)12 October 2004(1)
         
         
            
         
               (Member State's failure to fulfil obligations  –  Articles 1, 6 and 7 of Directive 98/59/EC  –  Concept of ‘collective redundancy’  –  Rules governing dismissals assimilated to redundancies  –  Incomplete transposition)
               
             In Case C-55/02,ACTION under Article 226 EC for failure to fulfil obligations,brought on 22 February 2002,
            
            
            Commission of the European Communities,  represented by J. Sack and M. França, acting as Agents, with an address for service in Luxembourg,
            
            
            applicant,
            
            v
            Portuguese Republic, represented by L. Fernandes and F. Ribeiro Lopes, acting as Agents, with an address for service in Luxembourg,
            
            defendant,
            
            
            THE COURT (Second Chamber),,
            
             composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann, F. Macken, N. Colneric (Rapporteur), and J.N. Cunha Rodrigues,
            Judges,  
            
             Advocate General: A. Tizzano, Registrar: R. Grass,
             having regard to the written procedure,
            
            after hearing the Opinion of the Advocate General at the sitting on 11 March 2004,
         gives the following
         
         
         Judgment
         1
            
          By its application, the Commission of the European Communities asks the Court to declare that, by restricting the concept
         of collective redundancies to redundancies for structural, technological or cyclical reasons, and by failing to extend that
         concept to dismissals for any reason not related to the individual workers concerned, the Portuguese Republic has failed to
         fulfil its obligations under the EC Treaty and under Articles 1, 6 and 7 of Council Directive 98/59/EC of 20 July 1998 on
         the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16).
         
         
            
               Legal background
            The relevant provisions of Community law
         
         2
            
          Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective
         redundancies (OJ 1975 L 48, p. 29), as amended by Council Directive 92/56/EEC of 24 June 1992 (OJ 1992 L 245, p. 3), was repealed
         with a view to its being consolidated by Directive 98/59 (‘the Directive’).  At that point no new period for transposition
         was prescribed.
         
         
         
         3
            
          The second recital in the preamble to the Directive states that ‘it is important that greater protection should be afforded
         to workers in the event of collective redundancies while taking into account the need for balanced economic and social development
         within the Community’.
         
         
         
         4
            
          According to the third recital in the preamble to the Directive, ‘despite increasing convergence, differences still remain
         between the provisions in force in the Member States concerning the practical arrangements and procedures for such redundancies
         and the measures designed to alleviate the consequences of redundancy for workers’.
         
         
         
         5
            
          Under the fourth recital in the preamble, ‘these differences can have a direct effect on the functioning of the internal market’.
         
         
         
         6
            
          The seventh recital in the preamble states that ‘this approximation must … be promoted while the improvement is being maintained
         within the meaning of Article 117 of the Treaty’.
         
         
         
         7
            
          Under the eighth recital in the preamble, ‘in order to calculate the number of redundancies provided for in the definition
         of collective redundancies within the meaning of this Directive, other forms of termination of employment contracts on the
         initiative of the employer should be equated to redundancies, provided that there are at least five redundancies’.
         
         
         
         8
            
          Under the ninth recital in the preamble, the Directive ‘applies in principle also to collective redundancies resulting where
         the establishment’s activities are terminated as a result of a judicial decision’.
         
         
         
         9
            
          Article 1 of the Directive is worded as follows:
         ‘1.     For the purposes of this Directive:
         
         (a)
            “collective redundancies” means dismissals effected by an employer for one or more reasons not related to the individual workers
               concerned where, according to the choice of the Member States, the number of redundancies is:
            
         
         
            
               (i)
                  either, over a period of 30 days:
               
         
         
         
         
         
          
         
            
               
                  
                     –
                        at least 10 in establishments normally employing more than 20 and less than 100 workers,
                     
               
         
         
         
         
          
         
            
               
                  
                     –
                        at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers,
                     
               
         
         
         
         
          
         
            
               
                  
                     –
                        at least 30 in establishments normally employing 300 workers or more,
                     
               
         
         
         
         
            
               (ii)
                  or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question;
                     
                  
               
         
         
         (b)
            “workers’ representatives” means the workers’ representatives provided for by the laws or practices of the Member States.
         
          For the purpose of calculating the number of redundancies provided for in the first subparagraph of point (a), terminations
         of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers
         concerned shall be assimilated to redundancies, provided that there are at least five redundancies.
          2.       This Directive shall not apply to:
         
         (a)
            collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks
               except where such redundancies take place prior to the date of expiry or the completion of such contracts; 
            
         
         … ’.
         
         
         
         10
            
          Article 2 of the Directive lays down a procedure for consulting and informing workers’ representatives.
         
         
         
         11
            
          The first paragraph of Article 2(2) of the Directive provides:
         ‘These consultations shall, at least, cover ways and means of avoiding collective redundancies or reducing the number of workers
         affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying
         or retraining workers made redundant.’
         
         
         
         12
            
          Articles 3 and 4 of the Directive set out the rules governing the procedure for collective redundancies. 
         
         
         
         13
            
          Article 3(1) of the Directive provides:
         ‘Employers shall notify the competent public authority in writing of any projected collective redundancies.
          However, Member States may provide that in the case of planned collective redundancies arising from termination of the establishment’s
         activities as a result of a judicial decision, the employer shall be obliged to notify the competent public authority in writing
         only if the latter so requests.
          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.’
         
         
         
         14
            
          Under Article 4 of the Directive:
         ‘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.
         …
          4.       Member States need not apply this Article to collective redundancies arising from termination of the establishment’s activities
         where this is the result of a judicial decision.’
         
         
         
         15
            
          Article 6 of the Directive states:
         ‘Member States shall ensure that judicial and/or administrative procedures for the enforcement of obligations under this Directive
         are available to the workers’ representatives and/or workers.’
         
         
         
         16
            
          Article 7 of the Directive is worded as follows:
         ‘Member States shall forward to the Commission the text of any fundamental provisions of national law already adopted or being
         adopted in the area governed by this Directive.’
         
         The relevant  provisions of domestic law
         
         17
            
          Article 53 of the Portuguese Constitution provides:
         ‘Workers shall be guaranteed security of employment.  Dismissals without good cause or for political or ideological reasons
         shall be prohibited.’
         
         
         
         18
            
          The Directive was transposed into the Portuguese legal order by Decree-Law No 64-A/89 of 27 February 1989 concerning the legal
         rules governing the termination of individual contracts of employment and the conclusion and expiry of fixed-term contracts
         of employment (Diário da República I, Series I, No 48, of 27 February 1989, ‘the LCCL’).  Law No 32/99 of 18 May 1999 (Diário da República I, Series I-A, No 115, of 18 May 1999) amended the rules on collective redundancies, laid down in the legal rules governing
         the termination of individual contracts of employment and the conclusion of fixed-term contracts of employment, approved by
         that decree-law.
         
         
         
         19
            
          Article 3 of the LCCL, headed ‘Forms of termination of contracts of employment’, forms part of Chapter I of that law, itself
         headed ‘General principles’.  It provides:
         ‘(1)   Dismissals without just cause shall be prohibited.
         (2)     A contract of employment may be terminated by:
         (a)     expiry;
         (b)     rescission by agreement of the parties;
         (c)     dismissal decided on by the employer;
         (d)     cancellation, with or without cause, on the employee’s initiative;
         (e)     cancellation by either party during the probationary period;
         (f)     job losses for structural, technological or cyclical reasons’.
         
         
         
         20
            
          Article 4 of the LCCL, headed ‘Causes of expiry’, forms part of Chapter II of that law, which is headed ‘Expiry of the contract
         of employment’.  It provides:
         ‘Contracts of employment shall expire in accordance with the general provisions of law, in particular:
         …
         (b)     Where, after the contract has been concluded, it becomes absolutely and definitively impossible for the worker to perform
         his duties or for the employer to benefit from them’.
         
         
         
         21
            
          Article 6 of the LCCL, concerning the death of an individual employer or the winding-up of a corporate employer, also forming
         part of Chapter II of that law,  provides:
         ‘(1)   The death of an individual employer shall cause the contract of employment to expire, save where the deceased’s heirs continue
         the activity for which the worker was engaged or where the undertaking is transferred, in which case Article 37 of the legal
         rules on individual contracts of employment, approved by Decree-Law No 49408 of 24 November 1969, shall apply.
         (2)     Where the contract expires by virtue of the provisions of the previous paragraph, the worker shall be entitled to compensation
         corresponding to one month’s pay for each year or part of a year of service, paid out of the undertaking’s assets.
         (3)     The winding-up of an employer which is a collective body, where the establishment is not to be transferred, shall cause the
         contracts of employment to expire in accordance with the terms provided for in the previous paragraphs.’
         
         
         
         22
            
          Chapter V of the LCCL deals with the termination of contracts of employment on the basis of job losses for objective structural,
         technological or cyclical reasons relating to the undertaking.  This chapter contains two sections, the first headed ‘Collective
         redundancy’ and the second ‘Termination of the contract of employment for job losses not included in collective redundancy’.
         
         
         
         23
            
          Article 16 of the LCCL, headed ‘Definition’, which is the first article in Section I, provides:
         ‘“Collective redundancies” means the termination, on the employer’s initiative, of individual contracts of employment, affecting
         simultaneously or in succession, at least two workers in a period of three months where the undertaking employs up to 50 persons
         or at least five workers where the undertaking employs more than 50 persons, provided that such termination is based on the
         definitive closure of the undertaking, of one or more departments or on staff reductions effected for structural, technological
         or cyclical reasons.’
         
         
         
         24
            
          In addition, Section I of Chapter V of the LCCL provides, in particular, for the communications and consultations to be effected
         by the employer, in Articles 17 and 18, the action to be taken by the competent national authority, in Article 19, workers’
         rights, in Article 23, and the consequences of unlawful redundancies, in Article 24.
         
         
         
         25
            
          Section II of Chapter V of the LCCL concerns, inter alia, the reasons for job losses, in Article 26, the conditions for termination
         of the contract of employment, in Article 27, the communications to be made by the employer, in Article 28, the procedure
         to be followed, in Article 29, termination of the contract of employment, in Article 30, and workers’ rights, in Article 32.
         
         
         
         26
            
          In accordance with Article 27(1)(b) and (c) of the LCCL, termination of the contract of employment is subject, in particular,
         to the condition that it should be impossible in practice to maintain the employment relationship and that there should exist
         no fixed-term contracts for duties corresponding to those of the job lost.
         
         
         
         27
            
          In Chapter VIII of the LCCL, headed ‘Special cases of termination of the contract of employment’, Article 56, concerning situations
         where the employer is placed in compulsory liquidation or is insolvent, provides:
         ‘(1)   A judicial declaration that the employer is insolvent or placed in compulsory liquidation shall not terminate the contracts
         of employment, since the administrator of the assets of the undertaking in liquidation must continue to satisfy in full the
         obligations under those contracts for workers, until such time as the establishment is definitively closed.
         (2)     Nevertheless, before the definitive closure of the establishment, the administrator may cancel the contracts of employment
         of those employees whose services are not essential to the running of the undertaking, in accordance with the rules set out
         in Articles 16 to 25.’
         
         
         
         28
            
          Article 172 of the Portuguese Code of Special Procedures in judicial settlements and compulsory liquidation, approved by Decree-Law
         No 132/93 of 23 April 1993 (Diário da República I, Series I-A, No 95, of 23 April 1993), and amended by Decree-Law No 315/98 of 20 October 1998 (Diário da República I, Series I-A, No 242, of 20 October 1998), provides: 
         ‘The employees of the undertaking in compulsory liquidation shall be covered, with regard to the continuation of their contract
         after the declaration of compulsory liquidation, by the general rules on termination of the contract of employment, without
         prejudice to the transfer of contracts under the sale of industrial and commercial establishments.’
         
         The pre-litigation procedure
         
         29
            
          Taking the view that the LCCL was in part incompatible with the provisions of the Directive, the Commission initiated the
         infringement procedure.  Having given the Portuguese Republic formal notice to submit its observations, the Commission sent
         a reasoned opinion to that Member State on 29 December 2000 requesting it to take the measures necessary to comply therewith
         within a period of two months from the date of its notification.
         
         
         
         30
            
          Considering that the information supplied by the Portuguese authorities showed that the infringement indicated in the reasoned
         opinion still subsisted, the Commission decided to bring the present action.
         
         Concerning the action
         
         31
            
          The Commission takes the view that the concept of collective redundancies in Portuguese law does not cover all the cases of
         collective redundancies mentioned in the Directive.  As a result, the provisions of Portuguese law are more restricted in
         ambit than those of the Directive. 
         
         
         
         32
            
          The Commission states that the definition of ‘collective redundancies’, set out in Article 16 of the LCCL, does not, for example,
         include the case of redundancies made by an employer for reasons not related to the individual workers in cases of a declaration
         of compulsory liquidation, liquidation procedures similar to those just mentioned, compulsory purchase, fire or other case
         of force majeure, or in the case of termination of an undertaking’s activity following the death of the trader.
         
         
         
         33
            
          The Portuguese Government maintains that the Commission’s action is without foundation, save for the part concerning the transfer
         of contracts of employment, in the terminal stage of realising the assets in a compulsory liquidation procedure, as a result
         of the definitive closure of establishments that have not been sold in their entirety.  In fact, the situations mentioned
         by the Commission, in particular circumstances, are not in its view covered by the definition of collective redundancy provided
         in the Directive and, in other cases, are governed by the rules on collective redundancy established by the Portuguese legislation.
         
         The definition of ‘collective redundancy’ provided by the Directive Arguments of the parties
         
         
         34
            
          The Portuguese Government maintains that no effort was made to define ‘redundancy’ in the Directive because most of the legal
         orders of the Member States adopt the common definition of a voluntary act of the employer intended to bring to an end the
         employment relationship and communicated to the worker.
         
         
         
         35
            
          It contends that the Directive does not provide that any termination whatsoever of a contract of employment for reasons not
         related to the individual worker is to be classified as ‘redundancy’.
         
         
         
         36
            
          It submits, moreover, that it is impossible to apply the entire body of rules laid down by the Directive to situations in
         which the expiry of contracts of employment on the definitive termination of the undertaking’s activities is not contingent
         on the will of the employer.  That fact confirms that such situations are not classified as collective redundancies.  The
         Directive was not intended to apply to such situations.
         
         
         
         37
            
          According to the Portuguese Government, there is a dilemma, the horns of which are the full application of the Directive and
         its exclusion.  Since many serious obligations provided for by the Directive do not apply in certain situations where the
         definitive termination of the undertaking’s activities is not contingent on the employer’s will, it must be concluded that
         the Directive in its entirety does not apply to such situations.
         
         
         
         38
            
          The Commission acknowledges that the Directive does not define the concept of ‘redundancy’.  In its view, however, the lack
         of a definition does not authorise the Member States to exclude from the Directive’s ambit situations such as those subject
         to a body of rules on the expiry of contracts of employment in Portuguese law.
         
         
         
         39
            
          According to the Commission, it is a flagrant breach of Community law for the Portuguese Government, faced with the supposed
         ‘dilemma’ of a choice between ‘the full application of the Directive and its exclusion’, to opt for non-application of the
         Directive.
         
         
         
         40
            
          It remarks that, apropos of cases of compulsory purchase, fire or other cases of force majeure, the Portuguese Government
         gives evidence of misunderstanding the protective rules introduced by the Directive, probably as a result of a selective reading
         of Sections II, ‘Information and consultation’, and III, ‘Procedure for collective redundancies’, of the Directive.
         
         
         
         41
            
          In this regard, the Commission maintains, inter alia, that it is quite consistent for the consultation of workers’ representatives
         to cover means of mitigating the consequences of redundancy by considering accompanying social measures aimed at redeploying
         or retraining workers made redundant, even if it was not possible to avoid the definitive closure of the undertaking and therefore
         the termination of the contracts of employment. 
         
         
         
         42
            
          According to the Commission, the Portuguese Government has put forward an interpretation of the collective redundancies procedure
         that renders pointless the various provisions of the Directive.  That is particularly so with regard to the obligation laid
         down in Article 3 of that directive, which requires employers to notify in writing the competent public authority of any projected
         collective redundancies.  Both an employer whose undertaking has been destroyed by fire and the heirs of a deceased trader
         are in a position to perform that obligation.
         
          Findings of the Court
         
         
         43
            
          Pursuant to Article 1(1)(a) of the Directive, ‘collective redundancies’ means dismissals effected by an employer for one or
         more reasons not related to the individual workers concerned provided that certain conditions concerning  numbers and periods
         of  time are satisfied.
         
         
         
         44
            
          The Directive does not give an express definition of ‘redundancy’.  That concept must, however, be given a uniform interpretation
         for the purposes of the Directive.
         
         
         
         45
            
          It follows both from the requirements of the uniform application of Community law and the principle of equality that the terms
         of a provision of Community law which make 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 Community; that interpretation
         must take into account the context of the provision and the purpose of the legislation in question (Case C-287/98 Linster [2000] ECR I-6917, paragraph 43, and Case C‑40/01 Ansul [2003] ECR I-2439, paragraph 26). 
         
         
         
         46
            
          In this case, Article 1(1)(a) of the Directive, unlike Article 1(1)(b) thereof which expressly provides that ‘workers’ representatives’
         means the workers’ representatives provided for by the laws or practices of the Member States, does not make any express reference
         to the law of the Member States so far as the definition of ‘redundancy’ is concerned.
         
         
         
         47
            
          In addition, it follows from the title of, and from the third, fourth and seventh recitals in the preamble to, the Directive
         that the objective pursued by the latter is to further the approximation of the laws of the Member States relating to collective
         redundancies.
         
         
         
         48
            
          By harmonising the rules applicable to collective redundancies, the Community legislature intended both to ensure comparable
         protection for workers’ rights in the different Member States and to harmonise the costs which such protective rules entail
         for Community undertakings (Case C-383/92 Commission v United Kingdom [1994] ECR I-2479, paragraph 16).
         
         
         
         49
            
          Accordingly, the concept of ‘redundancy’, as mentioned in Article 1(1)(a) of the Directive, may not be defined by any reference
         to the laws of the Member States, but has instead meaning in Community law.
         
         
         
         50
            
          The concept has to be interpreted as including any termination of contract of employment not sought by the worker, and therefore
         without his consent.  It is not necessary that the underlying reasons should reflect the will of the employer.
         
         
         
         51
            
          That interpretation of the concept of ‘redundancy’ for the purposes of the Directive follows from the aim pursued by the latter
         and from the background to the provision at issue.
         
         
         
         52
            
          The second recital in the preamble to the Directive makes it clear that that act is designed to strengthen the protection
         of workers in the case of collective redundancies.  According to the third and seventh recitals in the preamble to the Directive,
         it is chiefly the differences remaining between the provisions in force in the Member States concerning the measures apt to
         mitigate the consequences of collective redundancies which must form the subject-matter of a harmonisation of laws.
         
         
         
         53
            
          The objectives referred to in the Directive would be attained only in part if the termination of a contract of employment
         that was not contingent on the will of the employer were to be excluded from the body of rules laid down by the Directive.
         
         
         
         
         54
            
          As regards the background to the provision at issue, the ninth recital in the preamble to the Directive and the second paragraph
         of Article 3(1) thereof make it clear that the Directive applies, as a rule, also to collective redundancies caused by termination
         of the establishment’s activities as a result of a judicial decision.  In that situation, the termination of contracts of
         employment is the result of circumstances not willed by the employer. 
         
         
         
         55
            
          In that context, it has to be added that in its original version, namely, Directive 75/129, the Directive had provided in
         Article 1(2)(d) that it did not apply to workers affected by the termination of an establishment’s activities where that was
         the result of a judicial decision.  That article provided an exception to the rule laid down by Article 1(1)(a), which stated,
         in terms the same as those used in the equivalent provision of Directive 98/59, that for the purposes of that directive ‘collective
         redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual workers concerned.
          That exception would not have been needed had the concept of ‘redundancy’ taken the form of a willed act of the employer.
         
         
         
         56
            
          As the Advocate General has correctly noted in points 46 and 47 of his Opinion, redundancies are to be distinguished from
         terminations of the contract of employment which, on the conditions set out in the last paragraph of Article 1(1) of the Directive,
         are assimilated to redundancies for want of the worker’s consent.
         
         
         
         57
            
          The interpretation offered in paragraph 50 above cannot be gainsaid by arguing that full application of the Directive is,
         for example, impossible in some circumstances in which the definitive termination of the undertaking’s activity is not contingent
         upon the employer’s will.  In any case, application of the Directive in its entirety is not to be excluded for those circumstances.
         
         
         
         58
            
          In accordance with the first paragraph of Article 2(2) of the Directive, the purpose of consulting the workers’ representatives
         is not only to avoid collective redundancies or to reduce the number of workers affected, but also, inter alia, to mitigate
         the consequences of such redundancies by recourse to accompanying social measures aimed, in particular, at aid for redeploying
         or retraining workers made redundant.  It would run counter to the spirit of the Directive to narrow the ambit of that provision
         by giving a restrictive interpretation of the concept of ‘redundancy’.
         
         
         
         59
            
          Considerations of the same kind hold good so far as the obligations laid down in Article 3 of the Directive to notify the
         competent public authority are concerned.  Those obligations, adapted where appropriate in accordance with the power granted
         to the Member States by the second paragraph of Article 3(1), could quite well be performed by an employer in cases where
         contracts of employment have to be terminated because of circumstances not contingent on his will.  A contrary interpretation
         would deprive workers of the protection given by that provision and by Article 4 of the Directive.
         
         
         
         60
            
          It follows from all the foregoing considerations that termination of a contract of employment cannot escape the application
         of the Directive just because it depends on external circumstances not contingent on the employer’s will.
         
         Legal assessment of the Portuguese legislation
         
         61
            
          All the situations mentioned in paragraph 32 above that the Portuguese Government has acknowledged are classified as ‘expiry
         of the contract’ in the Portuguese legal order fall within the ambit of the Directive, for they are covered by the definition
         of ‘redundancy’ for the purposes of that act.
         
         
         
         62
            
          It matters little that in Portuguese law those situations are not classified as redundancies but as the expiry by operation
         of law of the contract of employment.  They are in point of fact terminations of the contract of employment against the will
         of the worker, and are therefore redundancies for the purposes of the Directive.
         
         
         
         63
            
          In consequence, the Portuguese Republic has not properly transposed Article 1(1)(a) of the Directive.
         
         
         
         64
            
          The allegation relating to failure to fulfil obligations under Article 6 of the Directive is also well founded.  Nothing indicates
         that the Portuguese Republic, even though adopting a more restrictive interpretation of ‘redundancy’ than that given in the
         Directive, has nevertheless taken care that there should be available to workers in all the situations of collective redundancy
         within the meaning of the Directive administrative and/or judicial procedures in order to enforce the obligations laid down
         by the Directive.
         
         
         
         65
            
          In so far as the action concerns Article 7 of the Directive, it has to be stated that the Commission has not explained how
         the Portuguese Republic is supposed to have infringed that provision.
         
         
         
         66
            
          As a result, it must be held that, by restricting the concept of collective redundancies to redundancies for structural, technological
         or cyclical reasons, and by failing to extend that concept to dismissals for any reason not related to the individual workers
         concerned, the Portuguese Republic has failed to fulfil its obligations under Articles 1 and 6 of the Directive, and the remainder
         of the action must be dismissed.
         
         
         Costs
         67
            
          Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been
         applied for.  Since the Commission has applied for an order for costs against the Portuguese Republic and since the latter
         has been largely unsuccessful, it must be ordered to bear the costs.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (Second Chamber) hereby:
         
            
            
             
               1.
                  Declares that, by restricting the concept of collective redundancies to redundancies for structural, technological or cyclical
                     reasons, and by failing to extend that concept to dismissals for any reason not related to the individual workers concerned,
                     the Portuguese Republic has failed to fulfil its obligations under Articles 1 and 6 of Council Directive 98/59/EC of 20 July
                     1998 on the approximation of the laws of the Member States relating to collective redundancies;
                  
               
            
            
            
             
               2.
                  Dismisses the remainder of the action;
               
            
            
            
             
               3.
                  Orders the Portuguese Republic to pay the costs.
               
            
             Signatures
      
      
          1 –
            
            Language of the case: Portuguese.