Georgios Agorastoudis and Others (C-187/05), Ioannis Pannou and Others (C-188/05), Kostandinos Kotsabougioukis and Others (C-189/05) and Georgios Akritopoulos and Others (C-190/05) v Goodyear Hellas ABEE.
Date: 2006-09-07
28. The Court has explained this concept of ‘redundancy’ by stating that it has a Community law meaning and has to be interpreted as including any termination of contract of employment not sought by the worker, and therefore without his consent (Case C-55/02 Commission  v Portugal  [2004] ECR I-9387, paragraphs 49 and 50).
29. Having regard to the rule set out in Article 1(1)(a) of Directive 75/129, the four cases where the directive does not apply, cited in Article 1(2), have to be regarded as constituting an exhaustive list. Furthermore, as exceptions to that rule, they must be construed narrowly (see, to this effect, Case C-250/97 Lauge and Others  [1998] ECR I‑8737, paragraph 19).
33. It is to be noted that the exemption in Article 1(2)(d) of Directive 75/129 was deleted with effect from 24 June 1994 by Directive 92/56, which thus reinforced the objective pursued. Therefore, at the material time, employers were obliged to inform and consult workers in all cases of collective redundancy following the termination of an establishment’s activities, even where their termination was the result of a judicial decision.
34. With regard, second, to the objective pursued by Directive 75/129, as the first recital in its preamble states, the directive is intended to afford greater protection to workers in the event of collective redundancies. That aim of protecting workers has been noted repeatedly by the Court (see Case C-449/93 Rockfon  [1995] ECR I-4291, paragraph 29, and Lauge and Others , paragraph 19).
35. The Court has pointed out that Directive 75/129 does not affect the employer’s freedom to effect or refrain from effecting collective redundancies and that its sole object is to provide for consultation with the trade unions and for notification of the competent public authority prior to such dismissals (Case 284/83 Nielsen & Søn  [1985] ECR 553, paragraph 10).
36. That is undoubtedly the case where an employer is minded, for particular reasons of his, to bring operation of his establishment to an end. As the Commission of the European Communities moreover rightly observes, Directive 75/129 harmonises not the manner in which an establishment’s activities are definitively terminated, that is to say the circumstances in which a judicial decision is necessary, but the procedure to be followed at the time of collective redundancies.
37. In the light of the objective pursued by Directive 75/129, the Court has defined the term ‘establishment’ appearing therein very broadly, in order to limit as far as possible cases of collective redundancies which are not subject to the directive because of the legal definition of that term at national level (see Rockfon , paragraphs 31 and 32).
38. The Court has also pointed out that Directive 75/129 was adopted on the basis of Articles 100 and 117 of the EEC Treaty, the latter provision concerning the need for the Member States to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonisation while the improvement is being maintained ( Rockfon , paragraph 29).
40. In Case 215/83 Commission  v Belgium  [1985] ECR 1039, paragraphs 13 to 19, the Court held specifically that the Member State concerned had failed to fulfil its obligations because it did not provide workers with the protection envisaged by Directive 75/129 in all cases of collective redundancies which arose from closures of undertakings that were not the result of a judicial decision. From the date of that judgment at the latest, there was no longer any doubt as to the meaning of the exemption laid down in Article 1(2)(d) of Directive 75/129.
41. The derogations set out in the second subparagraph of Article 3(1) and Article 4(4) of Directive 75/129, provisions which were inserted by Directive 92/56, were explained by the Court in its judgment in Lauge and Others  (paragraph 18), according to which, in order for those derogations to be applicable, the termination of the activities of the establishment and the collective redundancies must not take place prior to the judicial decision making a winding-up order.
42. Furthermore, in Commission  v Portugal  (paragraph 66 and the operative part), the Court held that the Member State concerned had failed to fulfil its obligations under Directive 75/129 since it restricted the concept of collective redundancies to redundancies for structural, technological or cyclical reasons and failed to extend that concept to dismissals for any reason not related to the individual workers concerned.
43. Fourth and finally, in accordance with settled case-law, the obligation on Member States to achieve the result prescribed by a directive, in order to comply with the third paragraph of Article 249 EC, is binding on all national authorities, including the courts. When the latter are called upon to interpret and apply national law, they are bound to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result sought by it (see to this effect, most recently, Joined Cases C-397/01 to C-403/01 Pfeiffer and Others  [2004] ECR I-8835, paragraph 113, and the case-law cited).