Ender Balkaya v Kiesel Abbruch- und Recycling Technik GmbH.
Date: 2015-07-09
27. In that context, the referring court raises a question, in particular, as to the interpretation of the criterion — established by the judgment in Danosa  (C‑232/09, EU:C:2010:674) for determining whether a member of a board of a company has the status of worker within the meaning of EU law — of carrying out an activity under the direction or supervision of another body of such a company.
32. In order to reply to this question, it must be recalled, first of all, that by harmonising the rules applicable to collective redundancies, the EU 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 European Union undertakings (see, inter alia, judgments in Commission  v Portugal , C‑55/02, EU:C:2004:605, paragraph 48, and Commission v Italy , C‑596/12, EU:C:2014:77, paragraph 16).
33. Therefore, contrary to the submission of Kiesel Abbruch, the concept of ‘worker’, referred to in Article 1(1)(a) of Directive 98/59, cannot be defined by reference to the legislation of the Member States but must be given an autonomous and independent meaning in the EU legal order (see, by analogy, judgment in Commission  v Portugal , C‑55/02, EU:C:2004:605, paragraph 49). Otherwise, the methods for calculation of the thresholds laid down in that provision, and therefore the thresholds themselves, would be within the discretion of the Member States, which would allow the latter to alter the scope of that directive and thus to deprive it of its full effect (see, to that effect, judgment in Confédération générale du travail and Others , C‑385/05, EU:C:2007:37, paragraph 47).
34. It is apparent, next, from the settled case-law of the Court that that concept of ‘worker’ must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. In that regard, the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration (see judgment in Commission  v Italy , C‑596/12, EU:C:2014:77, paragraph 17, citing, by analogy, the judgment in Danosa , C‑232/09, EU:C:2010:674, paragraph 39).
35. It that regard, in so far as the referring court emphasises the fact that the employment relationship of a director such as the one in question in the main proceedings is governed, inter alia, by a service contract to act as director, which is not, according to German case-law, a contract of employment, it must be observed, first, that it is clear from the settled case-law of the Court that the nature of the employment relationship under national law is of no consequence as regards whether or not a person is a worker for the purposes of EU law (see, to that effect, judgment in Kiiski , C‑116/06, EU:C:2007:536, paragraph 26 and case-law cited).
36. It follows that, provided that a person meets the conditions specified in paragraph 34 above, the nature of that person’s legal relationship with the other party to the employment relationship has no bearing on the application of Directive 98/59 (see, by analogy, judgment in Danosa , C‑232/09, EU:C:2010:674, paragraph 40).
37. In the second place, in so far as the referring court is unsure, in particular, as to the existence, in the main proceedings, of a relationship of subordination, in accordance with the case-law of the Court regarding the concept of ‘worker’, because the degree of dependency or subordination of a director, such as the one in question in the main proceedings, in the exercise of his functions is of a lesser intensity than that of a worker within the usual meaning under German law, it must be observed that whether such a relationship of subordination exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties (see, to that effect, judgment in Danosa C‑232/09, EU:C:2010:674, paragraph 46).
38. In that regard, it is apparent from the case-law of the Court, which is applicable in connection with Directive 98/59, the fact that a person is a member of the board of directors of a capital company is not enough in itself to rule out the possibility that that person is in a relationship of subordination to that company (see, to that effect, judgments in Danosa C‑232/09, EU:C:2010:674, paragraph 47, and Commission  v Italy , C‑596/12, EU:C:2014:77, paragraphs 14, 17 and 18). It is necessary to consider the circumstances in which the board member was recruited; the nature of the duties entrusted to that person; the context in which those duties were performed; the scope of the person’s powers and the extent to which he or she was supervised within the company; and the circumstances under which the person could be removed (see judgment in Danosa C‑232/09, EU:C:2010:674, paragraph 47).
39. Thus, the Court has already held that a member of a board of directors of a capital company who, in return for remuneration, provides services to the company which has appointed him and of which he is an integral part, who carries out his activities under the direction or supervision of another body of that company and who can, at any time, be removed from his duties without such removal being subject to any restriction, satisfies, prima facie, the criteria for being treated as a ‘worker’ within the meaning of EU law (see, to that effect, judgment in Danosa , C‑232/09, EU:C:2010:674, paragraphs 51 and 56).
41. In those circumstances, it must be found that, even if such a board member of a capital company enjoys a degree of latitude in the performance of his duties that exceeds, in particular, that of a worker within the meaning of German law, who may be directed by the employer, as the national court has observed, as to the specific tasks that he must complete and the manner in which they must be carried out, the fact remains that the board member is in a relationship of subordination vis-à-vis that company within the meaning of the case-law cited at paragraphs 38 and 39 above (see, to that effect, the judgment in Danosa , C‑232/09, EU:C:2010:674, paragraph 49 to 51).
44. That interpretation is also borne out by the objective of that directive which is, as is apparent from recital 2 in the preamble thereto, inter alia, to afford greater protection to workers in the event of collective redundancies. In accordance with that objective, a narrow definition cannot be given to the concepts that define the scope of that directive, including the concept of ‘worker’ in Article 1(1)(a) of the directive (see, to that effect, judgments in Athinaïki Chartopoïïa , C‑270/05, EU:C:2007:101, paragraphs 25 and 26, and, by analogy, Union syndicale Solidaires Isère , C‑428/09, EU:C:2010:612, paragraph 22).
46. In that regard, it must be held, first, that there is nothing to suggest that an employee who is a board member of a capital company, in particular, a small or medium sized company such as that at issue in the main proceedings, is necessarily in a different situation from that of other persons employed by that company as regards the need to mitigate the consequences of his dismissal, and, inter alia, to alert, for that purpose, the competent public authority so that it is able to seek solutions to the problems raised by all the projected collective redundancies (see, to that effect, judgment in Junk , C‑188/03, EU:C:2005:59, paragraph 48, and in Claes and Others , C‑235/10 to C‑239/10, EU:C:2011:119, paragraph 56).
47. Second, it must be observed that a national law or practice, such as that at issue in the main proceedings, which does not take into account the board members of a capital company in the calculation provided for in Article 1(1)(a) of Directive 98/59 of the number of workers employed, is liable not only to affect the protection afforded by that directive to those members, but, above all, to deprive all the workers employed by certain establishments, normally employing more than 20 workers, of the rights which they derive from that directive and thus undermines its effectiveness (see, to that effect, judgment in Confédération générale du travail and Others , C‑385/05, EU:C:2007:37, paragraph 48).
50. In that regard, it must be recalled, in the first place, that it is clear from the Court’s well-established case-law that the concept of ‘worker’ in EU law extends to a person who serves a traineeship or periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question, provided that the periods are served under the conditions of genuine and effective activity as an employed person, for and under the direction of an employer. The Court has stated that that conclusion cannot be invalidated by the fact that the productivity of the person concerned is low, that he does not carry out full duties and that, accordingly, he works only a small number of hours per week and thus receives limited remuneration (see, to that effect, inter alia, judgments in Lawrie-Blum , 66/85, EU:C:1986:284, paragraphs 19 to 21; Bernini , C‑3/90, EU:C:1992:89, paragraphs 15 and 16; Kurz , C‑188/00, EU:C:2002:694, paragraphs 33 and 34, and Kranemann , C‑109/04, EU:C:2005:187, paragraph 13).
51. In the second place, it is also clear from the Court’s case-law that neither the legal context of the employment relationship under national law, in the framework of which the vocational training or internship is carried out, nor the origin of the funds from which the person concerned is remunerated and, in particular, in the present case, the funding of that remuneration through public grants, can have any consequence in regard to whether or not the person is to be regarded as a worker (see, to that effect, inter alia, judgments in Bettray , 344/87, EU:C:1989:226, paragraphs 15 and 16; Birden , C‑1/97, EU:C:1998:568, paragraph 28, and Kurz , C‑188/00, EU:C:2002:694, point 34).