David Claes (C-235/10), Sophie Jeanjean (C-236/10), Miguel Rémy (C-237/10), Volker Schneider (C-238/10) and Xuan-Mai Tran (C-239/10) v Landsbanki Luxembourg SA.
Date: 2011-03-03
27. The applicants in the main proceedings appealed against the orders of 4 June 2009 to the Cour de Cassation which, finding that interpretation of Articles 1 to 3 of Directive 98/59 was necessary to enable it to give judgment in the cases of which it is seised, stayed the proceedings and referred to the Court the following questions for a preliminary ruling, which are worded identically in each of the three cases:
‘(1) Are Articles 1, 2 and 3 of Directive 98/59 … to be interpreted as applying to a termination of activities as a result of a declaration that the employer is insolvent or a judicial decision ordering the dissolution and winding up, on grounds of insolvency, of the credit institution which is the employer on the basis of Article 61(1)(a) and (b) of the Law … of 5 April 1993 relating to the financial sector, [as amended by the Law of 19 March 2004], in respect of which termination national legislation provides for the termination of employment contracts with immediate effect?
(2) If the answer to the first question is in the affirmative, are Articles 1, 2 and 3 of Directive 98/59 to be interpreted as meaning that the administrator or liquidator is deemed to be in the same position as an employer who is contemplating collective redundancies and who is able to carry out, to that end, the acts referred to in Articles 2 and 3 of [that] directive and of effecting such redundancies (Case C-323/08 Rodríguez Mayor and Others  [2009] ECR I-11621, paragraphs 39, 40 and 41)?’
30. Under Directive 75/129, Article 1(2)(d) provided that that directive did not apply to workers affected by the termination of an establishment’s activities where that is the result of a judicial decision. That provision allowed a derogation from the rule in Article 1(1)(a) of that directive, in which it was stated, in terms identical to those of the same provision in Directive 98/59, that, for the purposes of applying Directive 75/129, ‘collective redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual workers concerned (Case C-55/02 Commission  v Portugal  [2004] ECR I-9387, paragraph 55).
33. The Court has held that since the amendment of Directive 75/129, in all cases of collective redundancy following the termination of an establishment’s activities, even where their termination was the result of a judicial decision, employers are obliged to inform and consult workers (see, to that effect, Cases C-187/05 to C‑190/05 Agorastoudis and Others  [2006] ECR I-7775, paragraph 33).
56. It should also be noted that the consultations provided for in Article 2 of Directive 98/59 are to cover not only ways and means of avoiding collective redundancies or reducing the number of workers affected, but also to mitigate the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant (see, to that effect, Case C‑44/08 Akavan Erityisalojen Keskusliitto AEK and Others  [2009] ECR I-8163, paragraph 64).