Miriam Bichat and Others v APSB - Aviation Passage Service Berlin GmbH & Co. KG.
Date: 2018-08-07
23


In that respect, it should be recalled that, according to settled case-law, it is solely for the national courts, before which disputes are brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of each case, both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 42 and the case-law cited).
24


A reference for a preliminary ruling from a national court may be refused by the Court only if it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or to 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 (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 43 and the case-law cited).
29


In that regard, it must be noted, first, that the first subparagraph of Article 2(4) of Directive 98/59 does not define ‘undertaking controlling the employer’, nor does it refer to the law of the Member States on that issue. According to the Court’s settled case-law, the need for uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union (see, inter alia, judgments of 27 January 2005, Junk, C‑188/03, EU:C:2005:59, paragraphs 29 and 30, and of 13 May 2015, Lyttle and Others, C‑182/13, EU:C:2015:317, paragraph 26 and the case-law cited).
30


In those circumstances, and like the term ‘establishment’ referred to in Article 1(1)(a)(ii) of Directive 98/59, the term ‘undertaking controlling the employer’ referred to in the first subparagraph of Article 2(4) of that directive must be interpreted in an autonomous and uniform manner in the EU legal order (see, to that effect, judgment of 13 May 2015, Lyttle and Others, C‑182/13, EU:C:2015:317, paragraph 26 and the case-law cited).
31


As a preliminary point, it must be clarified that the concept of ‘control’ for the purposes of Directive 98/59 refers, as the Advocate General noted in point 50 of her Opinion, to a situation in which an undertaking may adopt a strategic or commercial decision compelling the employer to contemplate or to plan for collective redundancies (see, to that effect, judgment of 10 September 2009, Akavan Erityisalojen Keskusliitto AEK and Others, C‑44/08, EU:C:2009:533, paragraph 48).
35


Both Directive 98/59 and, before that, Directive 75/129 which it replaced, provide for 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 (judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 29 and the case-law cited).
36


In that regard, the Court has clarified in the context of that partial harmonisation that the legislature intended, with its adoption of Directive 92/56 and then Directive 98/59, to fill a gap in its earlier legislation and to add clarification concerning the obligations of employers who are part of a group of undertakings. Thus, against an economic background marked by the increasing presence of groups of undertakings, Article 2(4) of Directive 98/59 serves to ensure, where one undertaking is controlled by another, that the purpose of that directive, which, as is stated in recital 2 of its preamble, is to promote greater protection for workers in the event of collective redundancies, is actually achieved (judgment of 10 September 2009, AkavanErityisalojen Keskusliitto AEK and Others, C‑44/08, EU:C:2009:533, paragraph 44 and the case-law cited).
37


Consequently, the Court has interpreted Article 2(1) and the first subparagraph of Article 2(4) of Directive 98/59 to the effect that, under those provisions, irrespective of whether collective redundancies are contemplated or projected as a result of a decision of the undertaking which employs the workers concerned or a decision of its parent company, it is always the former of those two companies which is obliged, as the employer, to start consultations with the representatives of its workers (judgment of 10 September 2009, Akavan Erityisalojen Keskusliitto AEK and Others, C‑44/08, EU:C:2009:533, paragraph 62).
38


With regard to the objective of Directive 98/59, second, it is clear from recital 2 that that is to afford greater protection to workers in the case of collective redundancies. In that regard, the Court has clarified that, under Article 2(2) of the directive, the consultations with workers’ representatives before the collective redundancy 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 (judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraphs 27 and 28).