Andrés Rabal Cañas v Nexea Gestión Documental SA and Fondo de Garantia Salarial.
Date: 2015-05-13
32. It should be stated in this connection that neither the Statute of the Court of Justice of the European Union nor the Rules of Procedure make provision for the parties or the referring court to submit observations in response to the Advocate General’s Opinion. Furthermore, under Article 101 of the Rules of Procedure, only the Court of Justice is afforded the possibility of requesting clarifications from the referring court.
Consideration of the questions referred
The fourth question
36. 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 from 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, judgment in Fish Legal and Shirley , C‑279/12, EU:C:2013:853, paragraph 30 and the case-law cited).
42. It should be stated from the outset in this connection that, in accordance with the case-law of the Court, the term ‘establishment’, which is not defined in Directive 98/59, is a term of EU law and cannot be defined by reference to the laws of the Member States (see, to that effect, judgment in Rockfon , C‑449/93, EU:C:1995:420, paragraph 25). It must, on that basis, be interpreted autonomously and uniformly in the EU legal order (see, to that effect, judgment in Athinaïki Chartopoiïa , C‑270/05, EU:C:2007:101, paragraph 23).
44. In paragraph 31 of the judgment in Rockfon  (C‑449/93, EU:C:1995:420), the Court observed, referring to paragraph 15 of the judgment in Botzen and Others  (186/83, EU:C:1985:58), that an employment relationship is essentially characterised by the link existing between the worker and the part of the undertaking or business to which he is assigned to carry out his duties. The Court therefore decided, in paragraph 32 of the judgment in Rockfon  (C‑449/93, EU:C:1995:420), that the term ‘establishment’ in Article 1(1)(a) of Directive 98/59 must 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’ that the unit in question be endowed with a management that can independently effect collective redundancies.
45. In the judgment in Athinaïki Chartopoiïa  (C‑270/05, EU:C:2007:101), the Court further clarified the term ‘establishment’, inter alia by holding, in paragraph 27 of that judgment, that, for the purposes of the application of Directive 98/59, an ‘establishment’, in the context of an undertaking, may consist of a distinct entity, having a certain degree of permanence and stability, which is assigned to perform one or more given tasks and which has a workforce, technical means and a certain organisational structure allowing for the accomplishment of those tasks.
47. In paragraph 28 of the judgment in Athinaïki Chartopoiïa  (C‑270/05, EU:C:2007:101), the Court held that since Directive 98/59 concerns the socio-economic effects that collective redundancies may have in a given local context and social environment, the entity in question need not have any legal autonomy, nor need it have economic, financial, administrative or technological autonomy, in order to be regarded as an ‘establishment’.
48. Furthermore, the Court held, in the judgments in Lyttle and Others  (C‑182/13, EU:C:2015:0000, paragraph 35) and USDAW and Wilson (C‑80/14, EU:C:2015:291, paragraph 54), that the meaning of the terms ‘establishment’ or ‘establishments’ in Article 1(1)(a)(i) of Directive 98/59 is the same as that of the terms ‘establishment’ or ‘establishments’ in Article 1(1)(a)(ii) of that directive.
49. Consequently, where an ‘undertaking’ comprises several entities meeting the criteria set out in paragraphs 44, 45 and 47 above, it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the ‘establishment’ for the purposes of Article 1(1)(a) of Directive 98/59, and the number of dismissals effected at that establishment must be taken into consideration separately from those that take place at the other establishments of that same undertaking (see, to that effect, judgments in Lyttle and Others , C‑182/13, EU:C:2015:0000, paragraph 33, and USDAW and Wilson , C‑80/14, EU:C:2015:291, paragraph 52).
67. It follows from the foregoing considerations that the answer to the second question is 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 on the date on which that task was completed.
The third question