Commission of the European Communities v Portuguese Republic.
Date: 2004-10-12
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).
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.
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.
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.