Małgorzata Ciupa and Others v II Szpital Miejski im. L. Rydygiera w Łodzi obecnie Szpital Ginekologiczno-Położniczy im dr L. Rydygiera Sp. z o.o. w Łodzi.
Date: 2017-09-21
23


It must be recalled that, as regards the interpretation of provisions of national law, the Court is in principle required to base its consideration on the description given in the order for reference. It is settled case-law that the Court does not have jurisdiction to interpret the internal law of a Member State (judgment of 17 March 2011, Naftiliaki Etaireia Thasou and Amaltheia I Naftiki Etaireia, C‑128/10 and C‑129/10, EU:C:2011:163, paragraph 40 and the case-law cited).
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To answer that question, it should be recalled, to begin with, that it is apparent from the second subparagraph of Article 1(1) of Directive 98/59, from which it follows that the directive is applicable only where 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).
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As regards the concept of ‘redundancy’ in point (a) of the first subparagraph of Article 1(1) 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).
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As regards the question of the point in time from which an employer is required to carry out the consultations provided for in Article 2 of that directive, the Court has taken the view that the obligations of consultation and notification come into being prior to the employer’s decision to terminate employment contracts (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) and that the achievement of the objective expressed in Article 2(2) of Directive 98/59 of avoiding terminations of employment contracts or reducing their number would be jeopardised if the consultation of representatives were 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).
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It should be added that the dispute in the main proceedings, like the case in which judgment was given on 10 September 2009, Akavan Erityisalojen Keskusliitto AEK and Others (C‑44/08, EU:C:2009:533, paragraph 37), is linked to economic decisions which, as may be seen from the order for reference, were not directly concerned with terminating specific employment relationships, but might nevertheless have repercussions on the employment of a number of employees.
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That conclusion is all the more compelling in that the purpose of the obligation of consultation laid down in Article 2 of the directive, namely to avoid terminations of employment contracts, 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 objective pursued by the notices of amendment, according to the referring court, namely to avoid individual redundancies, coincide to a large extent. Where a decision entailing an amendment of working conditions may enable collective redundancies to be avoided, the consultation procedure provided for in Article 2 of the directive must start when the employer contemplates making 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).