Anonymi Geniki Etairia Tsimenton Iraklis (AGET Iraklis) v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis.
Date: 2016-12-21
27


It is clear from recital 2 of Directive 98/59 that that directive is designed to strengthen the protection of workers in the event of collective redundancies. According to recitals 3 and 7 of the directive, the differences still remaining between the provisions in force in the Member States concerning measures apt to alleviate the consequences of collective redundancies are among the matters to be covered by a harmonisation of laws (see, in particular, judgment of 12 October 2004, Commission v Portugal, C‑55/02, EU:C:2004:605, paragraph 52).
28


As regards the main objective of Directive 98/59, namely to make collective redundancies subject to prior consultation with the workers’ representatives and prior notification of the competent public authority, it should be noted, first, that under Article 2(2) of the directive the consultations are to cover ways and means of avoiding collective redundancies or 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. Secondly, according to Article 2(3) and Article 3(1) of the directive, employers are to notify the public authority of any projected collective redundancies and to forward to them the material and information mentioned in those provisions (see, to that effect, judgment of 10 December 2009, Rodríguez Mayor and Others , C‑323/08, EU:C:2009:770, paragraphs 43 and 44).
29


Directive 98/59, like the earlier Directive 75/129 which it replaced, therefore provides for only a partial harmonisation of the rules for the protection of workers in the event of collective redundancies, that is to say, harmonisation of the procedure to be followed when such redundancies are to be effected (see, to that effect, judgment of 10 December 2009, Rodríguez Mayor and Others , C‑323/08, EU:C:2009:770, paragraph 51 and the case-law cited).
30


Thus, neither Directive 98/59 nor the earlier Directive 75/129 impinges upon the employer’s freedom to effect or refrain from effecting collective redundancies (see, in respect of Directive 75/129, judgments of 12 February 1985, Dansk Metalarbejderforbund and Specialarbejderforbundet i Danmark, 284/83, EU:C:1985:61, paragraph 10, and of 7 September 2006, Agorastoudis and Others, C‑187/05 to C‑190/05, EU:C:2006:535, paragraph 35).
31


Those directives do not specify, inter alia, the circumstances in which the employer must contemplate collective redundancies and in no way affect his freedom to decide whether and when he must formulate plans for collective redundancies (see, in respect of Directive 75/129, judgment of 12 February 1985, Dansk Metalarbejderforbund and Specialarbejderforbundet i Danmark, 284/83, EU:C:1985:61, paragraph 15).
32


Whilst, by harmonising the rules applicable to collective redundancies in this way, the EU legislature sought both to ensure comparable protection for workers’ rights in the various Member States and to harmonise the costs which such protective rules entail for EU undertakings (see, in particular, judgment of 9 July 2015, Balkaya , C‑229/14, EU:C:2015:455, paragraph 32 and the case-law cited), it is nevertheless clear from Article 1(1) and Article 5 of Directive 98/59 that that directive is intended, in that context, to provide minimum protection with regard to informing and consulting workers in the event of collective redundancies and that the Member States remain free to adopt national measures that are more favourable to those workers (see, in particular, judgment of 18 January 2007, Confédération générale du travail and Others , C‑385/05, EU:C:2007:37, paragraph 44).
36


As the Court has repeatedly held, whilst it is true that Directive 98/59 harmonises only partially the rules for the protection of workers in the event of collective redundancies, the fact remains that the limited character of such harmonisation cannot have the consequence of depriving the provisions of the directive of practical effect (see, to that effect, in respect of Directive 75/129, judgment of 8 June 1994, Commission v United Kingdom , C‑383/92, EU:C:1994:234, paragraph 25, and, in respect of Directive 98/59, judgment of 16 July 2009, Mono Car Styling , C‑12/08, EU:C:2009:466, paragraph 35).
39


As the Court has already pointed out, Article 2 of Directive 98/59 imposes an obligation to negotiate (judgment of 27 January 2005, Junk , C‑188/03, EU:C:2005:59, paragraph 43). It is apparent from the wording of that provision that the consultations to be carried out must take place with a view to reaching an agreement, must at least cover ways and means of avoiding the projected collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures, and must enable workers’ representatives to make constructive proposals on the basis of a range of information that the employer is required to make available to them.
45


Freedom of establishment, which Article 49 TFEU grants to nationals of the Member States and which includes the right for them to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 54 TFEU, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in the Member State concerned through a subsidiary, a branch or an agency (see, in particular, judgment of 13 December 2005, Marks & Spencer, C‑446/03, EU:C:2005:763, paragraph 30 and the case-law cited).
46


Freedom of establishment thus covers, in particular, the situation where a company established in a Member State creates a subsidiary in another Member State. The same is true, in accordance with settled case-law, where such a company or a national of a Member State acquires a holding in the capital of a company established in another Member State allowing it or him to exert a definite influence on the company’s decisions and to determine its activities (see, to that effect, judgments of 21 October 2010, Idryma Typou , C‑81/09, EU:C:2010:622, paragraph 47 and the case-law cited, and of 8 November 2012, Commission v Greece , C‑244/11, EU:C:2012:694, paragraph 21 and the case-law cited).
48


It is settled case-law that the concept of a ‘restriction’ within the meaning of Article 49 TFEU covers, in particular, measures which, even though they are applicable without discrimination on grounds of nationality, are liable to impede the exercise of freedom of establishment or render it less attractive (see, in particular, judgments of 21 April 2005, Commission v Greece , C‑140/03, EU:C:2005:242, paragraph 27, and of 21 October 2010, Idryma Typou , C‑81/09, EU:C:2010:622, paragraph 54).
49


That concept thus covers, in particular, measures taken by a Member State which, although applicable without distinction, affect access to the market for undertakings from other Member States and thereby hinder intra-Community trade (see, in particular, judgment of 28 April 2009, Commission v Italy , C‑518/06, EU:C:2009:270, paragraph 64 and the case-law cited)
50


As regards the access to the market of a Member State which should thus be guaranteed, it should be remembered that, in accordance with settled case-law, the objective of the freedom of establishment guaranteed by Article 49 TFEU is to allow nationals of a Member State or legal persons established in that Member State to set up a secondary establishment in another Member State in order to carry on their business there and thus to promote economic and social interpenetration within the European Union in the sphere of economic activity other than as an employee. To that end, freedom of establishment is intended to allow such nationals or legal persons of the European Union to participate, on a stable and continuing basis, in the economic life of a Member State other than their State of origin and to profit therefrom by actually pursuing, in the host Member State, an economic activity through a fixed establishment for an indefinite period (see, in particular, judgment of 23 February 2016, Commission v Hungary , C‑179/14, EU:C:2016:108, paragraph 148 and the case-law cited).
51


The concept of establishment consequently presupposes actual establishment of the company concerned in that State and the pursuit of genuine economic activity there (see, in particular, judgment of 12 July 2012, VALE , C‑378/10, EU:C:2012:440, paragraph 34 and the case-law cited).
52


Actual exercise of freedom of establishment thus entails, in particular, as a necessary adjunct to that freedom, that the subsidiary, agency or branch set up by a legal person established in another Member State must be able, where relevant, and if the activity which it proposes to carry out in the host Member State so requires, to take on workers in that Member State (see, to that effect, judgment of 10 July 1986, Segers , 79/85, EU:C:1986:308, paragraph 15).
54


It must be noted, in connection with those various observations, that under the legislation at issue in the main proceedings it is the very ability of such an establishment to effect collective redundancies that is subject, in this instance, to a requirement that there be no opposition on the part of the competent public authority. The decision to effect collective redundancies is, however, a fundamental decision in the life of an undertaking (see, by analogy, in respect of decisions relating to voluntary winding-up, demerger or merger, judgment of 13 May 2003, Commission v Spain , C‑463/00, EU:C:2003:272, paragraph 79).
55


Such national legislation constitutes a significant interference in certain freedoms which economic operators generally enjoy (see, by analogy, judgment of 28 April 2009, Commission v Italy , C‑518/06, EU:C:2009:270, paragraph 66). That is true of the freedom of economic operators to enter into contracts with workers in order to be able to carry out their activities or the freedom, for their own reasons, to bring the activity of their establishment to an end, and their freedom to decide whether and when they should formulate plans for collective redundancies on the basis, in particular, of factors such as a cessation or reduction of the activity of the undertaking or a decline in demand for the product which they manufacture, or as a result of new working arrangements within an undertaking unconnected with its level of activity (see, to that effect, judgments of 12 February 1985, Dansk Metalarbejderforbund and Specialarbejderforbundet i Danmark , 284/83, EU:C:1985:61, paragraph 15, and of 8 June 1994, Commission v United Kingdom , C‑383/92, EU:C:1994:234, paragraphs 29 and 32).
58


As to Article 63 TFEU on the free movement of capital, that provision covers direct investments in the form of participation in an undertaking through the holding of shares which confers the possibility of participating effectively in its management and control, and also portfolio investments, that is to say, the acquisition of securities on capital markets solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (see judgment of 21 October 2010, Idryma Typou, C‑81/09, EU:C:2010:622, paragraph 48 and the case-law cited).
59


So far as concerns the main proceedings, however, it is not disputed that the company planning collective redundancies in the present instance is a company in whose capital a multinational group of companies which is established in another Member State has a majority holding enabling it to exert a definite influence over the decisions of that company and to determine its activities and that such a situation, as has been pointed out in paragraph 47 of this judgment, falls within freedom of establishment. Accordingly, even if the legislation at issue in the main proceedings were to have restrictive effects on the free movement of capital, those effects would, in such a case, be the unavoidable consequence of any restriction on freedom of establishment and would not warrant independent examination in the light of Article 63 TFEU (see, to that effect, judgments of 26 March 2009, Commission v Italy , C‑326/07, EU:C:2009:193, paragraph 39 and the case-law cited, and of 8 November 2012, Commission v Greece , C‑244/11, EU:C:2012:694, paragraph 30).
61


According to settled case-law, a restriction on freedom of establishment is permissible only if it is justified by overriding reasons in the public interest. It is further necessary, in such a case, that the restriction should be appropriate for ensuring the attainment of the objective in question and not go beyond what is necessary to attain that objective (see, in particular, judgments of 29 November 2011, National Grid Indus , C‑371/10, EU:C:2011:785, paragraph 42 and the case-law cited, and of 23 February 2016, Commission v Hungary , C‑179/14, EU:C:2016:108, paragraph 166).
62


As pointed out, in the context of the present case, by the referring court, it is also settled case-law that the fundamental rights guaranteed by the Charter are applicable in all situations governed by EU law and that they must, therefore, in particular be complied with where national legislation falls within the scope of EU law (see, in particular, judgment of 26 February 2013, Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraphs 19 to 21).
63


That is inter alia the case where national legislation is such as to obstruct one or more of the fundamental freedoms guaranteed by the Treaty and the Member State concerned relies on overriding reasons in the public interest in order to justify such an obstacle. In such a situation, the national legislation concerned can fall within the exceptions thereby provided for only if it complies with the fundamental rights the observance of which is ensured by the Court (see judgments of 18 June 1991, ERT , C‑260/89, EU:C:1991:254, paragraph 43, and of 30 April 2014, Pfleger and Others , C‑390/12, EU:C:2014:281, paragraph 35).
64


That obligation to comply with fundamental rights falls within the scope of EU law and, consequently, within that of the Charter. The use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore, be regarded as ‘implementing Union law’ within the meaning of Article 51(1) of the Charter (see judgment of 30 April 2014, Pfleger and Others , C‑390/12, EU:C:2014:281, paragraph 36).
65


As has been pointed out in paragraphs 54 to 57 of this judgment, the legislation at issue in the main proceedings constitutes a restriction on freedom of establishment. Since, according to the information provided by the referring court that is referred to in paragraph 22 of this judgment, overriding reasons in the public interest are relied upon to justify the restriction, that legislation is capable of such justification only if it complies with fundamental rights.
67


The Court has indeed already held that the protection afforded by that provision covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition (judgment of 22 January 2013, Sky Österreich , C‑283/11, EU:C:2013:28, paragraph 42).
68


As regards freedom of contract, the Court has thus held, in relation to the negotiation of collective labour agreements, that Article 16 of the Charter means, in particular, that an undertaking must be able to assert its interests effectively in a contractual process to which it is party and to negotiate the aspects determining changes in the working conditions of its employees with a view to its future economic activity (judgment of 18 July 2013, Alemo-Herron and Others , C‑426/11, EU:C:2013:521, paragraph 33).
70


It must nevertheless be borne in mind that Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights enshrined by the Charter as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, in accordance with the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, in particular, judgment of 31 January 2013, McDonagh , C‑12/11, EU:C:2013:43, paragraph 61).
72


As regards safeguarding the interests of the national economy, it is settled case-law that purely economic grounds, such as, in particular, promotion of the national economy or its proper functioning, cannot serve as justification for obstacles prohibited by the Treaty (see to that effect, in particular, judgments of 5 June 1997, SETTG , C‑398/95, EU:C:1997:282, paragraphs 22 and 23; of 6 June 2000, Verkooijen , C‑35/98, EU:C:2000:294, paragraphs 47 and 48; and of 4 June 2002, Commission v Portugal , C‑367/98, EU:C:2002:326, paragraph 52 and the case-law cited).
73


On the other hand, the overriding reasons in the public interest that are recognised by the Court include the protection of workers (see, in particular, judgments of 23 November 1999, Arblade and Others , C‑369/96 and C‑376/96, EU:C:1999:575, paragraph 36; of 13 December 2005, SEVIC Systems , C‑411/03, EU:C:2005:762, paragraph 28; and of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union , C‑438/05, EU:C:2007:772, paragraph 77).
74


The same is true of the encouragement of employment and recruitment which, being designed in particular to reduce unemployment, constitutes a legitimate aim of social policy (see, to that effect, judgments of 11 January 2007, ITC , C‑208/05, EU:C:2007:16, paragraphs 38 and 39; of 18 January 2007, Confédération générale du travail and Others , C‑385/05, EU:C:2007:37, paragraph 28; and of 13 December 2012, Caves Krier Frères , C‑379/11, EU:C:2012:798, paragraph 51).
75


The Court has thus, in particular, already acknowledged that considerations connected with the maintenance of employment may, under certain circumstances and conditions, be acceptable justifications for national legislation that has the effect of impeding freedom of establishment (see, to that effect, judgment of 25 October 2007, Geurts and Vogten , C‑464/05, EU:C:2007:631, paragraph 26).
76


It should be added, in respect of the overriding reasons in the public interest noted in paragraphs 73 to 75 of this judgment, that, as is apparent from Article 3(3) TEU, the European Union is not only to establish an internal market but is also to work for the sustainable development of Europe, which is based, in particular, on a highly competitive social market economy aiming at full employment and social progress, and it is to promote, inter alia, social protection (see, in respect of the EC Treaty, judgment of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union , C‑438/05, EU:C:2007:772, paragraph 78).
77


Since the European Union thus has not only an economic but also a social purpose, the rights under the provisions of the Treaty on the free movement of goods, persons, services and capital must be balanced against the objectives pursued by social policy, which include, as is clear from the first paragraph of Article 151 TFEU, the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion (see to that effect, in respect of the corresponding provisions of the EC Treaty, judgment of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union , C‑438/05, EU:C:2007:772, paragraph 79).
78


In the same vein, under Article 147(1) TFEU the European Union is to contribute to a high level of employment by encouraging cooperation between Member States and by supporting and, if necessary, complementing their action, while fully respecting the competences of the Member States. Article 147(2) TFEU provides that the objective of a high level of employment is to be taken into consideration in the formulation and implementation of EU policies and activities. Article 9 TFEU, finally, states that, in defining and implementing its policies and activities, the European Union is to take into account, inter alia, requirements linked to the promotion of a high level of employment and to the guarantee of adequate social protection.
81


In this connection, it should also be borne in mind that whilst, as the Court has repeatedly stated, the Member States have a broad discretion when choosing the measures capable of achieving the aims of their social policy, the fact remains, however, that that discretion may not have the effect of undermining the rights granted to individuals by the Treaty provisions in which their fundamental freedoms are enshrined (see, to that effect, judgments of 11 January 2007, ITC , C‑208/05, EU:C:2007:16, paragraphs 39 and 40; of 18 January 2007, Confédération générale du travail and Others , C‑385/05, EU:C:2007:37, paragraphs 28 and 29; and of 13 December 2012, Caves Krier Frères , C‑379/11, EU:C:2012:798, paragraphs 51 and 52).
85


Whilst, as has been pointed out in paragraph 69 of this judgment, establishment of a regime imposing such a framework constitutes an interference in the exercise of the freedom to conduct a business and, in particular, the freedom of contract which undertakings have, inter alia in respect of the workers which they employ, it should be borne in mind that, according to the Court’s settled case-law, the freedom to conduct a business is not absolute, but must be viewed in relation to its social function (see, in particular, judgment of 22 January 2013, Sky Österreich , C‑283/11, EU:C:2013:28, paragraph 45 and the case-law cited).
86


On the basis of that case-law and in the light of the wording of Article 16 of the Charter, which differs from the wording of the other fundamental freedoms enshrined in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities that may limit the exercise of economic activity in the public interest (judgment of 22 January 2013, Sky Österreich , C‑283/11, EU:C:2013:28, paragraph 46).
87


It is true that the Court has previously held, in respect of national legislation by virtue of which certain undertakings were unable to participate in the collective bargaining body called upon to decide collective agreements and therefore could not assert their interests effectively in a contractual process or negotiate the aspects determining changes in working conditions for their employees with a view to their future economic activity, that in such a case the contractual freedom of those undertakings is seriously reduced to the point that such a limitation is liable to affect adversely the very essence of their freedom to conduct a business (judgment of 18 July 2013, Alemo-Herron and Others , C‑426/11, EU:C:2013:521, paragraphs 34 and 35).
91


The decisions at issue in the present instance are economic and commercial decisions which may have repercussions on the employment of a significant number of workers within an undertaking (see, to that effect, judgment of 10 September 2009, Akavan Erityisalojen Keskusliitto AEK and Others , C‑44/08, EU:C:2009:533, paragraph 37).
92


In the light of the potential extent of those repercussions, a mechanism imposing a framework on collective redundancies such as the mechanism described in paragraphs 83 and 90 of this judgment may — in the absence, especially, of any rules of EU law that are intended to prevent such redundancies and go beyond the fields of information and consultation covered by Directive 98/59 — prove to be a mechanism of the sort that can contribute to enhancing the level of actual protection of workers and of their employment, by laying down substantive rules governing the adoption of such economic and commercial decisions by undertakings. Such a mechanism is thus appropriate for ensuring the attainment of the objectives in the public interest thereby pursued.
97


Indeed, a prohibition on effecting collective redundancies which is dictated, in particular, by the wish to prevent an economic sector, and consequently the country’s economy, from suffering the adverse effects that they cause must be regarded as pursuing an economic aim, which, as has already been observed in paragraph 72 of this judgment and has been noted by the Advocate General in point 66 of his Opinion, cannot constitute a reason in the public interest that justifies a restriction on a fundamental freedom guaranteed by the Treaty (see, by analogy, judgment of 5 June 1997, SETTG , C‑398/95, EU:C:1997:282, paragraph 23).
99


However, such criteria are formulated in very general and imprecise terms. As is apparent from settled case-law, where powers of intervention of a Member State or a public authority, such as the powers of opposition with which the minister is vested in the present instance, are not qualified by any condition, save for a reference to such criteria formulated in general terms, without any indication of the specific objective circumstances in which those powers are to be exercised, this results in serious interference with the freedom concerned which may have the effect — when, as in the present instance, decisions are involved whose fundamental nature in the life of an undertaking has already been pointed out in paragraph 54 of this judgment — of excluding that freedom altogether (see to this effect, in particular, judgments of 4 June 2002, Commission v France , C‑483/99, EU:C:2002:327, paragraphs 50 and 51, and of 26 March 2009, Commission v Italy , C‑326/07, EU:C:2009:193, paragraphs 51 and 52).
100


Even though the national legislation at issue in the main proceedings states that the power not to authorise collective redundancies with which the public authority is vested in the present instance must be exercised by analysing the documents in the file, while taking account of the situation of the undertaking and the conditions in the labour market, and must result in a reasoned decision, it is clear that, in the absence of details of the particular circumstances in which the power in question may be exercised, the employers concerned do not know in what specific objective circumstances that power may be applied, as the situations allowing its exercise are potentially numerous, undetermined and indeterminable and leave the authority concerned a broad discretion that is difficult to review. Such criteria which are not precise and are not therefore founded on objective, verifiable conditions go beyond what is necessary in order to attain the objectives stated and cannot therefore satisfy the requirements of the principle of proportionality (see, to that effect, judgments of 4 June 2002, Commission v France , C‑483/99, EU:C:2002:327, paragraphs 51 and 53; of 26 March 2009, Commission v Italy , C‑326/07, EU:C:2009:193, paragraphs 66 and 72; and of 8 November 2012, Commission v Greece , C‑244/11, EU:C:2012:694, paragraphs 74 to 77 and 86).
101


Moreover, as also follows from the Court’s case-law, whilst the fact that the exercise of such a power of opposition may be reviewed by the national courts is necessary for the protection of undertakings in the light of the application of the rules on freedom of establishment, it cannot, however, suffice on its own to make good the incompatibility with those rules of the two aforementioned assessment criteria (see, to that effect, judgment of 26 March 2009, Commission v Italy , C‑326/07, EU:C:2009:193, paragraphs 54 and 72), since, in particular, the legislation concerned also fails to provide the national courts with criteria that are sufficiently precise to enable them to review the way in which the administrative authority exercises its discretion (see, to that effect, judgment of 13 May 2003, Commission v Spain , C‑463/00, EU:C:2003:272, paragraph 79).