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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Confederation generale du travail & Ors (Social policy) [2007] EUECJ C-385/05 (18 January 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C38505.html Cite as: [2007] EUECJ C-385/05, [2007] EUECJ C-385/5, [2007] ECR I-611 |
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(Social policy Directives 98/59/EC and 2002/14/EC Collective redundancies Information and consultation of employees Method for calculating the thresholds of workers employed Member States' powers Exclusion of employees belonging to a certain age group)
In Case C-385/05,
REFERENCE for a preliminary ruling under Article 234 EC by the Conseil d'État (France), made by decision of 19 October 2005, received at the Court on 24 October 2005, in the proceedings
Confédération générale du travail (CGT),
Confédération française démocratique du travail (CFDT),
Confédération française de l'encadrement (CFE-CGC),
Confédération française des travailleurs chrétiens (CFTC),
Confédération générale du travail-Force ouvrière (CGT-FO)
Premier ministre,
Ministre de l'Emploi, de la Cohésion sociale et du Logement,
composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen (Rapporteur), R. Silva de Lapuerta, J. Makarczyk and L. Bay Larsen, Judges,
Advocate General: P. Mengozzi,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 7 June 2006,
after considering the observations submitted on behalf of:
the Confédération générale du travail (CGT), by A. Lyon-Caen, avocat,
the Confédération française démocratique du travail (CFDT), by H. Masse-Dessen, avocat,
the Confédération française de l'encadrement (CFE-CGC), by H. Masse-Dessen, avocat,
the Confédération française des travailleurs chrétiens (CFTC), by H. Masse-Dessen, avocat,
the Confédération générale du travail-Force ouvrière (CGT'FO), by T. Haas, avocat,
the French Government, by G. de Bergues and C. Bergeot-Nunes, acting as Agents,
the Commission of the European Communities, by J. Enegren and G. Rozet, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 12 September 2006,
gives the following
Legal context
Community legislation
'For the purposes of this Directive:
(a) collective redundancies means dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies is:
(i) either, over a period of 30 days:
at least 10 in establishments normally employing more than 20 and less than 100 workers,
at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers,
at least 30 in establishments normally employing 300 workers or more,
(ii) or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question;
(b) workers' representatives means the workers' representatives provided for by the laws or practices of the Member States.
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.'
'Where an employer is contemplating collective redundancies, he shall begin consultations with the workers' representatives in good time with a view to reaching an agreement.'
'1. Employers shall notify the competent public authority in writing of any projected collective redundancies.
...
2. Employers shall forward to the workers' representatives a copy of the notification provided for in paragraph 1.
The workers' representatives may send any comments they may have to the competent public authority.'
'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.'
'7. There is a need to strengthen dialogue and promote mutual trust within undertakings in order to improve risk anticipation, make work organisation more flexible and facilitate employee access to training within the undertaking while maintaining security, make employees aware of adaptation needs, increase employees' availability to undertake measures and activities to increase their employability, promote employee involvement in the operation and future of the undertaking and increase its competitiveness.
8. There is a need, in particular, to promote and enhance information and consultation on the situation and likely development of employment within the undertaking and, where the employer's evaluation suggests that employment within the undertaking may be under threat, the possible anticipatory measures envisaged, in particular in terms of employee training and skill development, with a view to offsetting the negative developments or their consequences and increasing the employability and adaptability of the employees likely to be affected.'
'The purpose of this Directive is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Community.'
'For the purposes of this Directive:
...
(d) employee means any person who, in the Member State concerned, is protected as an employee under national employment law and in accordance with national practice;
...'
'This Directive shall apply, according to the choice made by Member States, to:
(a) undertakings employing at least 50 employees in any one Member State, or
(b) establishments employing at least 20 employees in any one Member State.
Member States shall determine the method for calculating the thresholds of employees employed.'
'In accordance with the principles set out in Article 1 and without prejudice to any provisions and/or practices in force more favourable to employees, the Member States shall determine the practical arrangements for exercising the right to information and consultation at the appropriate level in accordance with this Article.'
National legislation
'For the purpose of implementing the provisions of this Code, the size of an undertaking's workforce shall be calculated in accordance with the following provisions:
Employees with a full-time contract of indefinite duration and homeworkers shall be taken fully into account in calculating the size of an undertaking's workforce.
Employees with a fixed-term contract, employees with an intermittent employment contract, employees provided to the undertaking by an outside undertaking, including temporary employees, shall be taken into account in calculating the size of an undertaking's workforce pro-rata to the amount of time they have spent at the undertaking during the preceding 12 months. However, employees with a fixed-term contract, a temporary contract or those provided by an outside undertaking shall be excluded from the calculation of the size of the workforce where they replace an employee who is absent or whose employment contract has been suspended.
Part-time employees, whatever the nature of their employment contract, shall be taken into account by dividing the total number of working hours laid down in their employment contracts by the statutory or standard working hours.'
'An employee engaged after 22 June 2005 who is under 26 years of age shall not be taken into account in calculating the size of the workforce of the undertaking by which he is employed until he reaches the age of 26, whatever the nature of his contract with the undertaking. This provision cannot have the effect of abolishing a staff representation body or an authority to represent staff. The provisions of this subparagraph shall be applicable until 31 December 2007.'
The dispute in the main proceedings and the questions referred for a preliminary ruling
'1. In view of the purpose of Directive [2002/14], which, as set out in Article 1(1) thereof, is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Community, must the transfer to the Member States of responsibility for determining the method for calculating the thresholds of employees employed, which is set out in that directive, be regarded as allowing those States to defer taking account of certain categories of employees for the application of those thresholds?
2. To what extent may Directive [98/59] be interpreted as authorising an arrangement with the effect that some establishments normally employing more than 20 employees will be relieved, albeit temporarily, of the obligation to create a structure for the representation of employees because of rules for the calculation of staff numbers that exclude taking account of some categories of employees for the application of the provisions organising that representation?'
The questions referred
The first question
The second question
Costs
On those grounds, the Court (Second Chamber) hereby rules:
1. Article 3(1) of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community must be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers within the meaning of that provision.
2. Article 1(1)(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 must be interpreted as precluding national legislation which excludes, even temporarily, a specific category of workers from the calculation of staff numbers set out in that provision.
[Signatures]
* Language of the case: French.