United States of America v Christine Nolan.
Date: 2012-10-18
36. Directive 98/59 was preceded by 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), one of the functions of Directive 98/59 consisting in codifying that directive.
37. During the legislative procedure concerning Directive 75/129, the Commission set out, in its proposal for a Council directive concerning the approximation of the laws of the Member States on collective redundancies [COM(72) 1400], of 8 November 1972, the circumstances which made legislation in that area necessary. In particular, the Commission found that major differences in the protection of workers in the event of dismissal have a direct effect on the functioning of the common market, since they create a disparity of conditions of competition which has an influence on undertakings, where the latter have posts to be filled.
38. Moreover, it should be noted that Directive 98/59 was adopted on the basis of Article 100 of the EC Treaty (now Article 94 EC), enabling the approximation of the laws of the Members States having a direct impact on the establishment or functioning of the common (internal) market.
39. It should also be noted, as regards the objective pursued by Directive 98/59, that, according to recitals 4 and 6 thereof, the directive is aimed at improving the protection of workers and the functioning of the internal market.
40. Consequently, it must be held that Directive 98/59 forms part of the legislation concerning the internal market.
41. Whilst the size and functioning of the armed forces does have an influence on the employment situation in a given Member State, considerations concerning the internal market or competition between undertakings do not apply to them. As the Court of Justice has already held, activities which, like national defence, fall within the exercise of public powers are in principle excluded from classification as economic activity ( Scattolon , paragraph 44 and case-law cited).
43. Therefore, it must be held that, by virtue of the exclusion laid down by Article 1(2)(b) of Directive 98/59, the dismissal of staff of a military base does not, in any event, fall within the scope of that directive, irrespective of whether or not it is a military base belonging to a non-member State. In those circumstances, it is not necessary specifically to take into account the fact that, in this case, it was a military base belonging to a non-member State, that question having implications in international law (in the context of the employment of staff of an embassy of a non-member country, see Case C-154/11 Mahamdia  [2012] ECR, paragraphs 54 to 56).
45. The Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning EU provisions in situations where the facts of the cases being considered by the national courts were outside the scope of EU law but where those provisions of EU law had been rendered applicable by domestic law due to a reference made by that law to the content of those provisions (see, to that effect, Case C-482/10 Cicala  [2011] ECR I-14139, paragraph 17 and case-law cited).
46. The Court has already held that where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from that measure should be interpreted uniformly (see, to that effect, Case C-310/10 Agafiţei and Others  [2011] ECR I-5989, paragraph 39 and case-law cited).
47. Thus, an interpretation by the Court of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way in order to ensure that internal situations and situations governed by EU law are treated in the same way (see, to that effect, Cicala , paragraph 19 and case-law cited).
51. It follows that the documents before the Court do not contain sufficiently precise indications that national law made the solutions adopted by Directive 98/59 automatically applicable in a situation such as that in the main proceedings.
52. Accordingly, it cannot be considered that the provisions of Directive 98/59, referred to by the question posed, have been, as such, made applicable in a direct and unconditional way by national law to a situation such as that in the main proceedings.
53. It is true that it is in the interests of the Union to safeguard the uniformity of the interpretations of a provision of an EU measure and those of national law which transpose it and make it applicable outside the scope of that measure.
54. However, such is not the case where, as in the case in the main proceedings, an EU measure expressly provides a case of exclusion from its scope.
55. If the EU legislature states unequivocally that the measure which it has adopted does not apply to a precise area, it renounces, at least until the adoption of possible new EU rules, the objective seeking uniform interpretation and application of the rules of law in that excluded area.
56. Therefore, it cannot be stated or presumed that there was an interest of the Union that, in an area excluded by the EU legislature from the scope of the measure which it adopted, there should be a uniform interpretation of the provisions of that measure.