1 This request for a preliminary ruling concerns the interpretation of Article 1(1), first subparagraph, (a), of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16).
2 The request has been made in proceedings between Société Nouvelle de l’Hôtel Plaza SAS (‘Hôtel Plaza’), on the one hand, and YG and Pôle emploi, on the other hand, concerning YG’s redundancy for economic reasons.
3 Under Article 1(1) of Directive 98/59: ‘For the purposes of this Directive: … For the purpose of calculating the number of redundancies provided for in the first subparagraph of point (a), terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned shall be assimilated to redundancies, provided that there are at least five redundancies.’
4 Article 2 of that directive, which is in Section II, entitled ‘Information and consultation’, of that directive, provides: ‘1. Where an employer is contemplating collective redundancies, he [or she] shall begin consultations with the workers’ representatives in good time with a view to reaching an agreement. 2. These consultations shall, at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant. Member States may provide that the workers’ representatives may call on the services of experts in accordance with national legislation and/or practice. 3. To enable workers’ representatives to make constructive proposals, the employers shall in good time during the course of the consultations: The employer shall forward to the competent public authority a copy of, at least, the elements of the written communication which are provided for in the first subparagraph, point (b), subpoints (i) to (v). 4. The obligations laid down in paragraphs 1, 2 and 3 shall apply irrespective of whether the decision regarding collective redundancies is being taken by the employer or by an undertaking controlling the employer. In considering alleged breaches of the information, consultation and notification requirements laid down by the Directive, account shall not be taken of any defence on the part of the employer on the ground that the necessary information has not been provided to the employer by the undertaking which took the decision leading to collective redundancies.’
5 Section III of that directive, entitled ‘Procedure for collective redundanc[i]es’, comprises Articles 3 and 4 of that directive. The first and third subparagraphs of Article 3(1) of that directive provide: ‘Employers shall notify the competent public authority in writing of any projected collective redundancies. … This notification shall contain all relevant information concerning the projected collective redundancies and the consultations with workers’ representatives provided for in Article 2, and particularly the reasons for the redundancies, the number of workers to be made redundant, the number of workers normally employed and the period over which the redundancies are to be effected.’
6 The first subparagraph of Article 4(1) of Directive 98/59 is worded as follows: ‘Projected collective redundancies notified to the competent public authority shall take effect not earlier than 30 days after the notification referred to in Article 3(1) without prejudice to any provisions governing individual rights with regard to notice of dismissal.’
7 Under Article 5 of Directive 98/59, which is in Section IV, entitled ‘Final provisions’, of that directive: ‘This Directive shall not affect the right of Member States to apply or to introduce laws, regulations or administrative provisions which are more favourable to workers or to promote or to allow the application of collective agreements more favourable to workers.’
8 Article L. 1111-2 of the code du travail (‘the Labour Code’), in the version applicable to the dispute in the main proceedings, provides: ‘For the purpose of implementing the provisions of this Code, the staff numbers of an undertaking shall be calculated in accordance with the following provisions: 1. Employees with a full-time employment contract of indefinite duration and home workers shall be taken into account in full in the staff numbers of the undertaking. 2. Employees with a fixed-term employment contract, employees with an intermittent employment contract, employees supplied to the undertaking by an external undertaking who are present on the premises of the user undertaking and have worked there for at least one year, and temporary employees, shall be taken into account in the staff numbers of the undertaking in due proportion to the time they have spent at the undertaking over the preceding 12 months. However, employees with fixed-term employment contracts and employees supplied by an external undertaking, including temporary employees, shall be excluded from the calculation of the staff numbers where they replace an employee who is absent or whose employment contract is suspended, in particular on account of maternity leave, adoption leave or parental education leave; 3. Part-time employees, irrespective of the nature of their employment contract, shall be taken into account by dividing the total sum of hours written in their employment contracts by the statutory working hours or agreed working hours.’
9 The first paragraph of Article L. 1233-61 of the Labour Code provides: ‘In undertakings with at least 50 employees, where the projected redundancies concern at least 10 employees within the same 30-day period, the employer shall draw up and implement a plan to protect employment in order to avoid redundancies or to limit their number.’
10 Under Article L. 1233-62 of the Labour Code: ‘The employment protection plan shall lay down measures such as: 1. Measures to redeploy employees internally in the national territory to posts falling within the same post category or equivalent to those they occupy or, subject to the express agreement of the employees concerned, to posts in a lower category; 1a. Measures promoting the resumption of all or part of the activities with a view to avoiding the closure of one or more establishments; 2. Creation of new activities by the undertaking; 3. Measures promoting redeployment outside the undertaking, in particular by supporting the reactivation of the labour pool; 4. Measures to support the creation of new activities or the resumption of existing activities by employees; 5. Training, validation of experience or retraining measures such as to facilitate the internal or external redeployment of employees to equivalent posts; 6. Measures to reduce or adjust working time, as well as measures to reduce the amount of overtime worked on a regular basis where that amount shows that the organisation of the work of the undertaking is established on the basis of a collective duration clearly greater than 35 hours per week or 1 600 hours per year and that its reduction could preserve all or part of the posts proposed to be abolished.’
11 The first paragraph of Article L. 1235-10 of the Labour Code is worded as follows: ‘In undertakings with at least 50 employees, where the projected redundancies concern at least 10 employees within the same 30-day period, the redundancy which took place in the absence of any decision on validation or approval [of an employment protection plan] or where a negative decision has been taken shall be void.’
12 On 12 October 1992, YG was recruited by Hôtel Plaza, which operates a hotel in France, as a senior project manager.
13 Since 2017, in the context of the operation of that hotel, the company GSF Jupiter, an external service provider, has supplied 11 of its employees to Hôtel Plaza to carry out maintenance and cleaning services on the premises of that hotel.
14 In September 2018, Hôtel Plaza informed its staff that large-scale renovation work on the hotel managed by it would be carried out, leading to a cessation of operation of that hotel for at least 20 months, and that, for that reason, it was going to initiate a collective redundancy procedure for economic reasons in respect of all the operating staff, covering 29 of the 39 employees of its staff numbers. No employment protection plan was drawn up or implemented before the redundancies of the employees concerned were decided.
15 On 5 December 2018, YG brought a request before the conseil de prud’hommes de Nice (Labour Tribunal, Nice, France) for judicial termination of YG’s employment contract on account of the employer’s wrongdoing and a claim for payment of various sums relating thereto.
16 The procedure for collective redundancies for economic reasons was initiated on 11 December 2018, the date on which the staff representatives were first consulted. On that date, the 11 employees from GSF Jupiter were still supplied to Hôtel Plaza.
17 By letter of 22 January 2019, YG was notified of her redundancy for economic reasons as a precautionary measure.
18 On 29 January 2019, YG accepted the professional security contract which had been offered to her, her contractual relations with Hôtel Plaza having ended, at the end of a cooling-off period, on 31 January 2019.
19 After her dismissal took effect, YG informed the conseil de prud’hommes de Nice (Labour Tribunal, Nice) of the continuation of the request for judicial termination of her employment contract and, in the alternative, sought, first, a declaration that her dismissal was invalid on the ground that there was no employment protection plan and, second, that she be reinstated within Hôtel Plaza.
20 After that court rejected all of YG’s claims by judgment of 13 August 2020, YG brought an appeal against that judgment before the cour d’appel d’Aix-en-Provence (Court of Appeal, Aix-en-Provence, France), which, by judgment of 25 November 2021, set aside that judgment. That court held that the dismissal was invalid on the ground that Hôtel Plaza had not taken the employees supplied to it by GSF Jupiter into account in its staff numbers for the purpose of determining whether it was required, pursuant to Article L. 1233-61 of the Labour Code, to draw up an employment protection plan, ordered Hôtel Plaza to pay various sums to YG and ordered that the unemployment benefit which had been paid to YG be reimbursed to Pôle emploi, up to a maximum of six months’ benefits.
21 Hôtel Plaza brought an appeal against that judgment before the Cour de cassation (Court of Cassation, France), which is the referring court.
22 In support of its appeal, Hôtel Plaza claims that the 50 employees required for the application of Article L. 1233-61 of the Labour Code refers only to employees whom it has the power to dismiss. Those employees are also the only ones capable of benefiting from an employment protection plan.
23 According to Hôtel Plaza, the employees supplied by an external undertaking are taken into account in the staff numbers of the undertaking, pursuant to Article L. 1111-2 of the Labour Code, solely in the case of measures which benefit the working community, such as the establishment of staff representative bodies in the undertaking, which those employees of the external undertaking form with the employees of the user undertaking itself. The same would not apply with the implementation of a protection plan, since the employees who have been supplied cannot be dismissed by the user undertaking or therefore benefit from the measures provided for by such a plan.
24 Consequently, Hôtel Plaza maintains that the cour d’appel d’Aix-en-Provence (Court of Appeal, Aix-en-Provence) infringed Articles L. 1233-61 and L. 1111-2 of the Labour Code by holding that the employees supplied by GSF Jupiter had to be taken into account in the calculation of the threshold of 50 employees required for the establishment of the employment protection plan.
25 The referring court states that the dispute in the main proceedings concerns the question whether, in order to determine if the threshold of 50 employees laid down in Article L. 1233-61 of the Labour Code has been reached, the persons supplied to Hôtel Plaza by GSF Jupiter should be taken into account.
26 In that regard, the referring court refers to the judgment of 9 July 2015, Balkaya (C‑229/14, EU:C:2015:455, paragraph 33), by which the Court held that the concept of ‘worker’, referred to in Article 1(1), first paragraph, (a) of Directive 98/59, cannot be defined by reference to the laws of the Member States but must be given an autonomous and independent meaning in the EU legal order, in so far as, if it were otherwise, the methods for calculation of the thresholds laid down in that provision, and therefore the thresholds themselves, would be within the discretion of the Member States, which could result in that directive being deprived of its full effect.
27 In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 1(1), [first subparagraph,] (a) of [Directive 98/59] … be interpreted as meaning that staff supplied to the undertaking by an outside undertaking who are present on the premises and who normally work for the user undertaking when the redundancy procedure is implemented must be considered as workers when calculating the staff numbers provided for by that provision?’
28 Hôtel Plaza and the European Commission submit that the Court has no jurisdiction to rule on the request for a preliminary ruling, on the ground that the national legislation at issue in the main proceedings does not fall within the scope of EU law. In that regard, they claim, inter alia, that the dispute in the main proceedings relates solely to the question of whether that company was required, under the applicable national legislation, to draw up an employment protection plan, and that Directive 98/59, which does not lay down any specific obligation for the employers concerned to draw up and implement such a plan, is not applicable in the present case.
29 In that regard, it should be noted at the outset that it is for the Court to examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (judgment of 3 June 2021, Servicio Aragonés de Salud, C‑942/19, EU:C:2021:440, paragraph 28 and the case-law cited).
30 It is also apparent from the case-law of the Court that, in principle, the Court only has jurisdiction to interpret the provisions of EU law that are actually applicable to the case in the main proceedings (judgment of 3 June 2021, Servicio Aragonés de Salud, C‑942/19, EU:C:2021:440, paragraph 29 and the case-law cited).
31 Accordingly, where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it (see, to that effect, judgment of 14 October 2021, INSS (Survivor’s pension based on a partnership), C‑244/20, EU:C:2021:854, paragraph 59 and the case-law cited).
32 In the present case, as regards Directive 98/59, it is apparent from the case-law of the Court that it is not sufficient, to determine whether the provisions of national law at issue in the main proceedings fall within the scope of that directive, that those provisions form part of broader national legislation, certain other provisions of which were adopted in order to transpose that directive into national law. In order for it to be found that that directive is applicable to the situation at issue in the main proceedings, it must also impose a specific obligation in respect of the situation at issue, which has been implemented by the provisions of national law concerned (see, by analogy, judgment of 17 March 2021, Consulmarketing, C‑652/19, EU:C:2021:208, paragraph 37 and the case-law cited).
33 In order to determine whether the Court has jurisdiction to rule on the present request for a preliminary ruling, it is therefore necessary to ascertain whether Directive 98/59 governs the drawing up and implementation of an employment protection plan, such as that at issue in the main proceedings, or imposes a specific obligation in respect of the situation at issue in the main proceedings (see, by analogy, judgment of 14 October 2021, INSS (Survivor’s pension based on a partnership), C‑244/20, EU:C:2021:854, paragraph 62 and the case-law cited).
34 It must be stated that it does not follow from Directive 98/59 that there is any obligation to draw up and implement an employment protection plan such as that at issue in the main proceedings, or any other specific obligation in respect of the situation at issue in the context of that dispute.
35 In that regard, it should be borne in mind that the main objective of that directive is to make collective redundancies subject to prior notification to and consultation with the workers’ representatives and prior notification to the competent public authority. Under Article 2(2) of that directive, consultations are to cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant. Furthermore, pursuant to Articles 2(3) and 3(1) of the same directive, the employer must notify the competent public authority of projected collective redundancies and provide it with the elements and information mentioned in those provisions (judgment of 17 March 2021, Consulmarketing, C‑652/19, EU:C:2021:208, paragraph 40 and the case-law cited).
36 Accordingly, it is not apparent from those obligations concerning information, consultation and notification, imposed on employers under Directive 98/59, that there is a specific obligation, in the context of the procedure for collective redundancies for economic reasons, to draw up and implement an employment protection plan, such as that provided for by the national legislation at issue in the main proceedings.
37 Similarly, it should be noted that the threshold of ‘at least 50 employees’, above which the employer concerned is under an obligation to draw up and implement an employment protection plan under the first paragraph of Article L. 1233-61 of the Labour Code, does not correspond to any of the thresholds laid down in Article 1(1), first subparagraph, (a) of that directive.
38 In addition, it must be borne in mind that that directive provides for only a partial harmonisation of the rules for the protection of workers in the event of collective redundancies, that is to say, harmonisation of the procedure to be followed when such redundancies are to be made (judgment of 17 March 2021, Consulmarketing, C‑652/19, EU:C:2021:208, paragraph 41 and the case-law cited). In that regard, it should be noted that Article 5 of that directive gives Member States the right to apply or to introduce laws, regulations or administrative provisions which are more favourable to workers or to promote or to allow the application of collective agreements more favourable to workers.
39 Thus, a provision of national law, such as the first paragraph of Article L. 1233-61 of the Labour Code, which requires that, where the projected redundancies in an undertaking of at least 50 employees concern at least 10 employees within the same 30-day period, the employer must draw up and implement an employment protection plan in order to avoid redundancies or to limit their number cannot, in principle, be regarded as falling within the scope of the provisions of Directive 98/59 and, consequently remains a matter for the Member States (see, to that effect, judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 33).
40 In that context, it must, however, be pointed out that it is not apparent from the order for reference that national law has made the method for calculation provided for in Article 1(1), first subparagraph, (a) of that directive applicable to cases such as that at issue in the main proceedings (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 53 and the case-law cited).
41 It follows from all the foregoing considerations that, in the absence of any specific obligation imposed by Directive 98/59 in respect of a situation such as that at issue in the main proceedings, Article 1(1), first subparagraph, (a) of that directive is not applicable.
42 Consequently, the Court does not have jurisdiction to rule on the present request for a preliminary ruling.
43 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.