Confédération générale du travail (CGT) and Others v Premier ministre and Ministre de l'Emploi, de la Cohésion sociale et du Logement.
Date: 2007-01-18
28. As a preliminary point, it is clear from the Court’s case-law that the encouragement of recruitment constitutes a legitimate aim of social policy and that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion (see, inter alia, Case C‑167/97 Seymour-Smith and Perez  [1999] ECR I‑623, paragraphs 71 and 74, and Case C‑187/00 Kutz-Bauer  [2003] ECR I‑2741, paragraphs 55 and 56).
29. 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 Community law or of a provision of that law (see, to that effect, Seymour-Smith and Perez , paragraph 75, and Kutz-Bauer , paragraph 57).
The first question
34. Since Directive 2002/14 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.
35. As is apparent from the Court’s case-law, where a Community provision refers to national legislation and practice, Member States cannot adopt measures likely to frustrate the objective of the Community legislation of which that provision forms part (see, to that effect, Case C‑151/02 Jaeger  [2003] ECR I‑8389, paragraph 59).
38. Legislation such as that at issue in the main proceedings which, as the Advocate General observed in point 28 of his Opinion, 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, is liable to render those rights meaningless and thus make the Directive ineffective.
40. With regard to the interpretation of Directive 2002/14 proposed by the French Government, to the effect that Article 3(1) of the Directive does not prohibit Member States from instituting, as is the case of the provision at issue in the main proceedings, methods for the calculation of thresholds of employees which may go as far as temporarily excluding certain categories of employee, inasmuch as that exclusion is justified on the basis of an objective of general interest constituted by the promotion of employment of young people and complies with the principle of proportionality, it is sufficient to note that such an interpretation is incompatible with Article 11(1) of Directive 2002/14, which requires Member States to take all necessary steps enabling them to guarantee the results imposed by Directive 2002/14 at all times, in that it implies that those States would be allowed to evade, even temporarily, that obligation to reach a clear and precise result imposed by Community law (see, by analogy, Case C‑212/04 Adeneler and Others  [2006] ECR I‑0000, paragraph 68).
43. In order to answer the question reformulated in that way, it should first be observed that Directive 98/59 is designed to ensure comparable protection for workers’ rights in the different Member States and to harmonise the costs which such protective rules entail for Community undertakings (see, by analogy, Case C‑383/92 Commission  v United Kingdom  [1994] ECR I‑2479, paragraph 16).
44. Secondly, it is clear from Articles 1(1) and 5 of Directive 98/59 that it is intended to provide minimum protection with regard to the information and consultation of employees in the event of collective redundancies, Member States remaining free to adopt national measures more favourable to such employees.
46. Firstly, it follows from the Court’s case-law that national legislation which makes it possible to impede protection unconditionally guaranteed to workers by a directive is contrary to Community law ( Commission  v United Kingdom , paragraph 21).
47. Secondly, and contrary to the submissions of the French Government, Directive 98/59 cannot be interpreted as meaning that the methods for calculation of those thresholds, and therefore the thresholds themselves, are within the discretion of the Member States, since such an interpretation would allow the latter to alter the scope of that directive and thus to deprive it of its full effect.
48. As is clear from the decision for reference and from points 73 and 74 of the Advocate General’s Opinion, a national provision such as that at issue in the main proceedings is liable to deprive, even temporarily, all workers employed by establishments normally employing more than 20 workers of the rights which they derive from Directive 98/59 and thus undermines its effectiveness.