Rockfon A/S v Specialarbejderforbundet i Danmark.
Date: 1995-12-07
5 The Directive was implemented in Denmark by Law No 38 of 26 January 1977 amending the Lov om Arbejdsformidling og Arbejdsloeshedsforsikring (Law on Provision of Employment and Unemployment Insurance, hereinafter "the 1977 Law"), which has been repeatedly amended. The provisions of Article 1(1)(a) of the directive were transposed into Danish law in Chapter 5a of the 1977 Law by Article 23a, which, Denmark having chosen the first option, is worded as follows:
° Article 23a(1):
"This Chapter applies to dismissals effected by an employer for one or more reasons not related to the individual workers concerned where the number of planned dismissals over a period of 30 days is:
(1) at least 10 in establishments normally employing more than 20 and less than 100 workers;
(2) at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers;
(3) at least 30 in establishments normally employing 300 workers or more."
° Article 23a(3):
"The Ministry of Labour may, after consultations with the National Employment Board, lay down specific rules for the calculation of the number of workers pursuant to Article 23a(1) and define the criteria to be applied for the purpose of determining what constitutes an establishment for the purposes of this Chapter."
21 As regards the first part of the question, it is sufficient to state that the sole purpose of the Directive is the partial harmonization of collective redundancy procedures and that its aim is not to restrict the freedom of undertakings to organize their activities and arrange their personnel departments in the way which they think best suits their needs. Article 1(1)(a) in particular defines "collective redundancies", thus determining the scope of the Directive, but lays down no rules relating to the internal organization of undertakings or the management of their personnel.
23 As regards the second part of the question, it must be noted first of all that the term "establishment" is not defined in the Directive.
25 The Court observes in this regard that the term "establishment", as used in the Directive, is a term of Community law and cannot be defined by reference to the laws of the Member States.
26 The various language versions of the Directive use somewhat different terms to convey the concept in question: the Danish version has "virksomhed", the Dutch version "plaatselijke eenheid", the English version "establishment", the Finnish version "yritys", the French version "établissement", the German version "Betrieb", the Greek version "**********", the Italian version "stabilimento", the Portuguese version "estabelecimento", the Spanish version "centro de trabajo" and the Swedish version "arbetsplats".
27 A comparison of the terms used shows that they have different connotations signifying, according to the version in question, establishment, undertaking, work centre, local unit or place of work.
28 As was held in the judgment in Case 30/77 Regina v Bouchereau [1977] ECR 1999, paragraph 14, the different language versions of a Community text must be given a uniform interpretation and in the case of divergence between the versions the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part.
29 The Directive was adopted on the basis of Articles 100 and 117 of the EEC Treaty, the latter provision concerning the need for the Member States to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonization while the improvement is being maintained. It is apparent from the first recital in its preamble that the Directive is indeed intended to afford greater protection to workers in the event of collective redundancies.
31 Secondly, the Court has held that an employment relationship is essentially characterized by the link existing between the employee and the part of the undertaking or business to which he is assigned to carry out his duties (judgment in Case 186/83 Botzen and Others v Rotterdamsche Droogdok Maatschappij [1985] ECR 519, paragraph 15).
32 The term "establishment" appearing in Article 1(1)(a) of the Directive must therefore be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an "establishment", for the unit in question to be endowed with a management which can independently effect collective redundancies.
34 The answer to the second part of the preliminary question must therefore be that the term "establishment" appearing in Article 1(1)(a) of the Directive must be understood as meaning, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an "establishment", for the unit in question to be endowed with a management which can independently effect collective redundancies.