Christian Pujante Rivera v Gestora Clubs Dir SL and Fondo de Garantía Salarial.
Date: 2015-11-11
20. It must be borne in mind in that regard that, according to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgments in Budĕjovický Budvar , C‑478/07, EU:C:2009:521, paragraph 63; Zanotti , C‑56/09, EU:C:2010:288, paragraph 15, and Melki and Abdeli , C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27).
25. In answering that question, it is appropriate to point out, first, that in paragraph 67 of its judgment in Rabal Cañas (C‑392/13, EU:C:2015:318), the Court held that Article 1(1) of Directive 98/59 must be interpreted as meaning that, for the purposes of establishing whether ‘collective redundancies’, within the meaning of that provision, have been effected, there is no need to take into account individual terminations of contracts of employment concluded for limited periods of time or for specific tasks, when those terminations take place on the date of expiry of the contract or the date on which the task was completed.
28. It should be noted in that regard, first, that the term ‘worker’ in that provision cannot be defined by reference to the legislation of the Member States but must be given an autonomous and uniform meaning in the EU legal order (judgment in Balkaya , C‑229/14, EU:C:2015:455, paragraph 33).
29. Next, the Court has consistently held that the term ‘worker’ must be defined in accordance with the objective criteria which characterise the employment relationship, taking into account the rights and duties of the persons concerned, the essential characteristic of the employment relationship being 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, inter alia, judgment in Commission  v Italy , C‑596/12, EU:C:2014:77, paragraph 17, and Balkaya , EU:C:2015:455, paragraph 34).
31. Lastly, as regards whether, for the purpose of calculating the thresholds laid down in Article 1(1)(a) (i) and (ii) of Directive 98/59, such workers may be regarded as ‘normally’ employed at the establishment concerned within the meaning of that provision, it should be noted that that directive cannot be interpreted as meaning that the methods of calculating those thresholds, and therefore the thresholds themselves, are within the discretion of the Member States, as such an interpretation would allow the latter to alter the scope of that directive and thus to deprive it of its full effect (judgment in Confédération générale du travail and Others , C‑385/05, EU:C:2007:37, paragraph 47).
34. Support is found for that conclusion in the Court’s case-law which states that the first subparagraph of Article 1(1)(a) of Directive 98/59 must be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers set out in that provision. Indeed, as such a national provision is liable to deprive, even temporarily, all workers employed by establishments normally employing more than 20 workers of the rights which they derive from Directive 98/59, it undermines effectiveness of the directive (see, to that effect, judgment in Confédération générale du travail and Others , C‑385/05, EU:C:2007:37, paragraph 48).
40. Second, by making the application of the rights conferred on workers by the first subparagraph of Article 1(1)(a) of Directive 98/59 subject to quantitative criteria, the EU legislature intended to take account of the overall number of employees of the establishments in question in order to avoid imposing an excessive burden on employers that is disproportionate to the size of their establishment. However, for the purpose of calculating the number of employees of an establishment as regards the application of Directive 98/59, the nature of the employment relationship is irrelevant (see, to that effect, judgment in Balkaya , C‑229/14, EU:C:2015:455, paragraphs 35 and 36).
44. As the second subparagraph Article 1(1) of Directive 98/59 sets out the method of calculating ‘redundancies’ as defined in the first subparagraph of Article 1(1)(a) and the latter provision establishes the ‘redundancy’ thresholds below which the directive is not applicable, any other reading which has the effect of extending or restricting the scope of the directive would deprive the condition in question, namely that ‘there [be] at least five redundancies’, of any effectiveness.
45. Moreover, that interpretation is confirmed by the purpose of Directive 98/59, as is clear from its preamble. Recital 8 in the preamble states that, in order to calculate the number of redundancies provided for in the definition of collective redundancies, 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’. As observed by the Advocate General at point 43 of her Opinion, it is those ‘true’ redundancies which the EU legislature intended to cover by the adoption of provisions relating to collective redundancies.
48. It should be noted in that regard that Directive 98/59 does not give an express definition of the concept of ‘redundancy’. None the less, in the light of the aim pursued by the directive and the context of the first subparagraph of Article 1(1)(a) thereof, it must be regarded as a concept of EU law which cannot be defined by reference to the laws of the Member States. In the present case, that concept must be interpreted as encompassing any termination of an employment contract not sought by the worker, and therefore without his consent (judgments in Commission v Portugal , C‑55/02, EU:C:2004:605, paragraphs 49 to 51, and Agorastoudis and Others , C‑187/05 to C‑190/05, EU:C:2006:535, paragraph 28).
49. Moreover, it is the Court’s case-law that redundancies are to be distinguished from terminations of the contract of employment which, on the conditions set out in the second paragraph of Article 1(1) of Directive 98/59, are assimilated to redundancies for want of the worker’s consent (judgment in Commission v Portugal , C‑55/02, EU:C:2004:605, paragraphs 56).
51. First, having regard to the objective of Directive 98/59, 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, a narrow definition cannot be given to the concepts that define the scope of that directive, including the concept of ‘redundancy’ in the first subparagraph of Article 1(1)(a) thereof (see, to that effect, Balkaya , C‑229/14, EU:C:2015:455, paragraph 44).
53. Second, according to the Court’s case-law, by harmonising the rules applicable to collective redundancies, the EU legislature intended both to ensure comparable protection for employees’ rights in the different Member States and to harmonise the costs which such protective rules entail for EU undertakings (judgments in Commission  v United Kingdom , C‑383/92, EU:C:1994:234, paragraph 15, and Commission  v Portugal , C 55/02, EU:C:2004:605, paragraph 48).
54. As follows from paragraphs 43 to 45 above, the concept of ‘redundancy’ in the first subparagraph of Article 1(1)(a) of Directive 98/59 directly determines the scope of the protection and the rights conferred on workers under that directive. That concept therefore has an immediate bearing on the costs which such protection entails. Accordingly, any national legislative provision or any interpretation of that concept to the effect that, in a situation such as that in the main proceedings, the termination of an employment contract is not a ‘redundancy’ for the purpose of Directive 98/59 would alter the scope of the 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).
55. In the light of the foregoing considerations, the answer to Question 3 is that Directive 98/59 must be interpreted as meaning that the fact that an employer — unilaterally and to the detriment of the employee — makes significant changes to essential elements of his employment contract for reasons not related to the individual employee concerned falls within the definition of ‘redundancy’ for the purpose of the first subparagraph of Article 1(1)(a) of the directive.
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