Ovidio Rodríguez Mayor and Others v Succession vacante de Rafael de las Heras Dávila and Sagrario de las Heras Dávila.
Date: 2009-12-10
27. However, since the national legislature has chosen to include in the concept of collective redundancies within the meaning of that directive cases which do not fall within the scope of that directive, whilst excluding from that concept cases such as that in the case in the main proceedings, it is clearly in the Community interest that, in order to forestall future differences of interpretation, that concept and the solutions taken from Community law connected thereto should be interpreted uniformly, irrespective of the circumstances in which they are relied on (see, to that effect, Case C‑3/04 Poseidon Chartering  [2006] ECR I‑2505, paragraphs 16 and 17).
30. A preliminary point to note is that the Court has no jurisdiction, in proceedings brought on the basis of Article 234 EC, to rule on the compatibility of rules of national law with Community law. On the other hand, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of Community law necessary to enable that court to rule on the compatibility of those rules of national law with Community law (see, inter alia, Case C-506/04 Wilson  [2006] ECR I‑8613, paragraphs 34 and 35 and Joined Cases C‑338/04, C-359/04 and C-360/04 Placanica and Others  [2007] ECR I‑1891, paragraph 36).
34. The Court has given a wide interpretation to the words ‘reasons not related to the individual workers concerned’ used in Article 1(1) of that directive (see, to that effect, Case C‑55/02 Commission  v Portugal  [2004] ECR I‑9387, paragraph 49, and Joined Cases C‑187/05 to C‑190/05 Agorastoudis and Others  [2006] ECR I‑7775, paragraph 28). Nevertheless, it follows from the text of that directive that the concept ‘collective redundancies’ within the meaning of that provision presupposes the existence both of an employer and of an act on his part.
35. In accordance with the definition which is given of it in the first subparagraph of Article 1(1)(a) of Directive 98/59, that concept refers to 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.
39. All the terms which appear in those provisions, in particular the expressions ‘to contemplate collective redundancies’, ‘to begin consultations’, ‘to supply all relevant information’, ‘to notify in writing of the factors’, ‘to notify in writing of all projected redundancies’ and ‘to forward a copy’ show the need for an employer and certain acts on his part.
40. Moreover, it follows from the phrase ‘dismissals effected by an employer’, used in Article 1(1)(a) of Directive 98/59, that the concept of collective redundancies assumes, in principle, that the employer carries out or has the intention of carrying out such redundancies, although as the Advocate General has pointed out in point 81 of his Opinion, the phrase ‘on the employer’s initiative’ used in the second subparagraph of Article 1(1) implies a direct manifestation of the will of the employer consisting in taking the initiative.
41. It follows from the foregoing that the concept of collective redundancies within the meaning of Article 1(1)(a) of Directive 98/59, presupposes the existence of an employer who contemplated such redundancies and who is capable, first, of carrying out, for that purpose, the acts referred to in Articles 2 and 3 of the Directive and, second, of effecting, where appropriate, such redundancies.
43. Second, with regard to the main objective of Directive 98/59, it should be borne in mind that, on the one hand, under Article 2(2) thereof, consultations are to cover ways and means of avoiding collective redundancies or of 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. On the other hand, according to Articles 2(3) and 3(1) of that directive, employers are to notify the competent public authority in writing of any projected collective redundancies and to notify them of the factors and information mentioned in those provisions.
44. However, the main objective of Directive 98/59, which is to make collective redundancies subject to prior consultation with the workers’ representatives and the notification of the competent public authority, cannot be fulfilled by classifying as a ‘collective redundancy’ the termination of contracts of employment of the entire staff of an undertaking run by a natural person as a result of the cessation of the activities of that undertaking resulting from the death of the employer, given that that consultation could not have taken place and that it was thus not possible to avoid or to limit terminations of contracts of employment or to attenuate the consequences.
47. Accordingly, the Court has already held that, under Article 2(1) and (3) as well as Article 3(1) and (2) of Directive 98/59, the only party on whom the obligations to inform, consult and notify are imposed is the employer (see Case C‑44/08 Akavan Erityisalojen Keskusliitto AEK and Others  [2009] ECR I‑0000, paragraph 57).
48. The Court has also held that the obligations of consultation and notification imposed on the employer come into being prior to the employer’s decision to terminate employment contracts (see, to that effect, Case C‑188/03 Junk  [2005] ECR I‑885, paragraphs 36 and 37, and Akavan Erityisalojen Keskusliitto AEK and Others , above, paragraph 38).
51. It is clear from the case‑law of the Court that Directive 98/59, like the earlier 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), carries out only a partial harmonisation of the rules for the protection of workers in the event of collective redundancies (see, as regards Directive 75/129, Case C‑383/92 Commission  v United Kingdom  [1994] ECR I‑2479, paragraph 25, and as regards Directive 98/59 Akavan Erityisalojen Keskusliitto AEK and Others , paragraph 60), and that it harmonises, not the detailed rules governing the definitive termination of an undertaking’s activities, but the procedure to be followed when collective redundancies are to be made (see, concerning Directive 75/129, Agorastoudis and Others  [2006], above, paragraph 36).