Halina Socha and Others v Szpital Specjalistyczny im. A. Falkiewicza we Wrocławiu.
Date: 2017-09-21
24


In answering that question, it must be noted from the outset that it is apparent from the second subparagraph of Article 1(1) of Directive 98/59, which makes it clear that that directive only applies when there are at least five ‘redundancies’, that the directive distinguishes between ‘redundancies’ and ‘terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned’ (see, to that effect, judgment of 11 November 2015, Pujante Rivera, C‑422/14, EU:C:2015:743, paragraphs 44 and 45).
25


Regarding the concept of ‘redundancy’ for the purposes of Article 1(1)(a) of Directive 98/59, the Court has held that that directive must be interpreted as meaning that the fact that an employer — unilaterally and to the detriment of the employee — makes significant changes to essential elements of his employment contract for reasons not related to the individual employee concerned falls within that concept (judgment of 11 November 2015, Pujante Rivera, C‑422/14, EU:C:2015:743, paragraph 55).
29


Regarding at what point an employer is obliged to engage in the consultations provided for in Article 2 of Directive 98/59, it must be noted that the Court has held that the obligations of consultation and notification arise prior to any decision by the employer to terminate contracts of employment (judgments of 27 January 2005, Junk, C‑188/03, EU:C:2005:59, paragraph 37, and of 10 September 2009, Akavan Erityisalojen Keskusliitto AEK and Others, C‑44/08, EU:C:2009:533, paragraph 38). It has also held that achievement of the objective, as set out in Article 2(2) of the directive, of avoiding terminations of contracts of employment or reducing the number of such terminations would be jeopardised if the consultation of workers’ representatives were to be subsequent to the employer’s decision (judgments of 27 January 2005, Junk, C‑188/03, EU:C:2005:59, paragraph 38, and of 10 September 2009, Akavan Erityisalojen Keskusliitto AEK and Others, C‑44/08, EU:C:2009:533, paragraph 46).
30


It must be added that the case in the main proceedings, like the case which gave rise to the judgment of 10 September 2009, Akavan Erityisalojen Keskusliitto AEK and Others (C‑44/08, EU:C:2009:533, paragraph 37), relates to economic decisions which, as is clear from the order for reference, were not directly concerned with terminating specific employment relationships but could, nevertheless, have repercussions on the employment of a number of employees.
34


That conclusion is all the more compelling since the purpose of the obligation to hold consultations, set out in Article 2 of that directive — namely, to avoid terminations of contracts of employment or to reduce their number and to mitigate the consequences (judgment of 10 September 2009, Akavan Erityisalojen Keskusliitto AEK and Others, C‑44/08, EU:C:2009:533, paragraph 46) — and the purpose of the notices of amendment, according to the order for reference — namely, to save the hospital from liquidation — overlap to a considerable extent. Where a decision involving the amendment of conditions of employment could help to avoid collective redundancies, the consultation procedure provided for in Article 2 of that directive must begin once the employer intends to make such amendments (see, to that effect, judgment of 10 September 2009, Akavan Erityisalojen Keskusliitto AEK and Others, C‑44/08, EU:C:2009:533, paragraph 47).