Association de médiation sociale v Union locale des syndicats CGT and Others.
Date: 2014-01-15
24. In this connection, it must first be observed that the Court has already held that, since Directive 2002/14 has defined, in Article 2(d) thereof, the group of persons to be taken into account at the time of the calculation of the staff numbers of the undertaking, Member States cannot exclude from that calculation a specific cate gory of persons initially included in that group (see Case C-385/05 Confédération générale du travail and Others [2007] ECR I-611, paragraph 34).
25. National legislation such as that at issue in the main proceedings, which excludes from the calculation of the staff numbers of an undertaking a specific category of employees, has the consequence of exempting certain employers from the obligations laid down in Directive 2002/14 and of depriving their employees of the rights granted under that directive. Consequently, it is liable to render those rights meaningless and thus make that directive ineffective (see Confédération générale du travail and Others , paragraph 38).
27. However, the margin of discretion which the Member States enjoy in matters of social policy cannot have the effect of frustrating the implementation of a fundamental principle of European Union law or of a provision of that law (see Confédération générale du travail and Others , paragraph 29).
28. An interpretation of Directive 2002/14 according to which Article 3(1) thereof allows the Member States to exclude from the calculation of the staff numbers of the undertaking a specific category of workers on grounds such as those put forward by the French Government in the case in the main proceedings is incompatible with Article 11 of that directive, which requires Member States to take all necessary steps enabling them to guarantee the results imposed by Directive 2002/14, in that it implies that the States would be allowed to evade that obligation to reach a clear and precise result imposed by European Union law (see Confédération générale du travail and Others , paragraph 40 and the case-law cited).
31. In this connection, it should be recalled that, according to settled case-law of the Court, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see Joined Cases C-397/01 to C-403/01 Pfeiffer and Others  [2004] ECR I-8835, paragraph 103 and the case-law cited).
33. Although Article 3(1) of Directive 2002/14 grants the Member States a certain degree of discretion when adopting the measures necessary to implement that directive, that does not alter the precise and unconditional nature of the obligation in that article to take account of all employees.
34. The Court has already held, as pointed out in paragraph 24 above, that, since Directive 2002/14 has defined the group of persons to be taken into account at the time of that calculation, Member States cannot exclude from that calculation a specific category of persons initially included in that group. Thus, although that directive does not prescribe the manner in which the Member States are to take account of employees falling within its scope when calculating the thresholds of workers employed, it does nevertheless require that they be taken into account (see Confédération générale du travail and Others , paragraph 34).
35. Having regard to that case-law concerning Article 3(1) of Directive 2002/14 (see Confédération générale du travail and Others , paragraph 40), it follows that that provision fulfils all of the conditions necessary for it to have direct effect.
36. However, it must be recalled that, according to settled case-law, even a clear, precise and unconditional provision of a directive seeking to confer rights or impose obligations on individuals cannot of itself apply in proceedings exclusively between private parties (see Pfeiffer and Others , paragraph 109, and Case C-555/07 Kücükdeveci  [2010] ECR I‑365, paragraph 46).
37. In this connection, it was noted in paragraph 13 above that the AMS is an association governed by private law, even if it has a social objective. It follows from this that, because of the legal nature of the AMS, the defendants in the main proceedings cannot rely on the provisions of Directive 2002/14, as such, against that association (see, to that effect, Case C‑282/10 Dominguez [2012] ECR, paragraph 42).
38. None the less, the Court has held that a national court, when hearing a case between individuals, is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive (see Case C-212/04 Adeneler and Others  [2006] ECR I-6057, paragraph 111; Pfeiffer and Others , paragraph 119; and Dominguez , paragraph 27).
39. Nevertheless, the Court has stated that this principle of interpreting national law in conformity with European Union law has certain limits. Thus the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see Case C-268/06 Impact  [2008] ECR I-2483, paragraph 100, and Dominguez , paragraph 25).
42. In respect of Article 27 of the Charter, as such, it should be recalled that it is settled case-law that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law (see Case C-617/10 Åkerberg Fransson  [2013] ECR, paragraph 19).
43. Thus, since the national legislation at issue in the main proceedings was adopted to implement Directive 2002/14, Article 27 of the Charter is applicable to the case in the main proceedings.
45. It is therefore clear from the wording of Article 27 of the Charter that, for this article to be fully effective, it must be given more specific expression in European Union or national law.
46. It is not possible to infer from the wording of Article 27 of the Charter or from the explanatory notes to that article that Article 3(1) of Directive 2002/14, as a directly applicable rule of law, lays down and addresses to the Member States a prohibition on excluding from the calculation of the staff numbers in an undertaking a specific category of employees initially included in the group of persons to be taken into account in that calculation.
47. In this connection, the facts of the case may be distinguished from those which gave rise to Kücükdeveci in so far as the principle of non‑discrimination on grounds of age at issue in that case, laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such.
48. Accordingly, Article 27 of the Charter cannot, as such, be invoked in a dispute, such as that in the main proceedings, in order to conclude that the national provision which is not in conformity with Directive 2002/14 should not be applied.
50. However, a party injured as a result of domestic law not being in conformity with European Union law can none the less rely on the judgment in Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I‑5357 in order to obtain, if appropriate, compensation for the loss sustained (see Dominguez , paragraph 43).