Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 1994-06-08
16 By harmonizing 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 harmonize the costs which such protective rules entail for Community undertakings.
17 To this end, Articles 2 and 3(2) of the directive lay down the principle that workers' representatives must be informed and consulted with regard to the details of projected collective redundancies and the possibility of reducing the numbers or effects of such redundancies and that those representatives must be in a position to submit any comments to the competent public authority.
21 The Court has already held, in particular in its judgment in Case 61/81 Commission v United Kingdom [1982] ECR 2601, that national legislation which makes it possible to impede protection unconditionally guaranteed to workers by a directive is contrary to Community law.
23 While it is true that the directive does not contain any provision designed expressly to deal with such a case, that has no bearing on the combined effect of Articles 2, 3 and 6 of the directive, which require Member States to take all measures necessary to ensure that workers are informed, consulted and in a position to intervene through their representatives in the event of collective redundancies.
25 Admittedly, the directive carries out only a partial harmonization of the rules for the protection of workers in the event of collective redundancies (see, in that connection, the judgment in Case 284/83 Dansk Metalarbejderforbund v Nielsen & Soen [1985] ECR 553) and is for that reason not designed to bring about full harmonization of national systems of worker representation in undertakings. However, the limited character of such harmonization cannot deprive the provisions of the directive, and especially Articles 2 and 3, of their effectiveness. In particular, it cannot prevent Member States from being required to take all appropriate measures to ensure that workers' representatives are designated with a view to complying with the obligations laid down in Articles 2 and 3.
29 The Commission submits that the provisions of the EPA are narrower in scope than the directive. It argues that the EPA applies, according to sections 99 and 100, only to cases of "redundancy", that is to say, according to the interpretation of that term by the courts and tribunals of the United Kingdom, to cases where there is a cessation or reduction of the business of an undertaking or a decline in demand for work of a particular type, whereas the directive, according to Article 1(1)(a), applies to "collective redundancies", that is to say, dismissals for one or more reasons not related to the individual workers concerned, which covers cases other than "redundancy".
32 The concept of "redundancy", which determines the scope of the EPA and the Commission' s interpretation of which has not been disputed by the United Kingdom, does not cover all the cases of "collective redundancy" covered by the directive. In particular, as the Commission points out, it does not cover cases where workers have been dismissed as a result of new working arrangements within an undertaking unconnected with its volume of business.
40 Where a Community directive does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive (see, with regard to Community regulations, the judgments in Case 68/88 Commission v Greece [1989] ECR 2965, paragraphs 23 and 24, and in Case C-7/90 Vandevenne and Others [1991] ECR I-4371, paragraph 11).
42 By providing that a "protective award" may be set off in full or in part against any amounts otherwise payable by an employer to an employee under the latter' s contract of employment or in respect of breach of that contract, the United Kingdom legislation largely deprives that sanction of its practical effect and its deterrent value. Moreover, an employer will not be penalized even moderately or lightly by the sanction except and only to the extent to which the amount of the "protective award" which he is ordered to make exceeds the sums which he is otherwise required to pay to the person concerned.