The Court of Justice of the European Union recently issued a preliminary ruling in case C-496/22, relating to the employer’s obligation in the event of collective redundancies as far as informing and consulting workers is concerned, if the employees do not have representatives appointed.
In this respect, the request for a preliminary ruling concerns the interpretation of the first subparagraph of Article 1(1)(b) and Article 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (the “Directive”) The request was made in proceedings between EI and his former employer, SC Brink’s Cash Solutions SRL, by the Curtea de Apel București (Court of Appeal, Bucharest, Romania) concerning his dismissal.
Circumstantial facts of case law
The employer decided to restructure its undertaking and initiated a collective redundancy procedure aimed to eliminate 128 posts nationally.
Due to the fact that the term of the previously appointed employees’ representatives had expired at the above-mentioned moment, without new representatives having been elected by the workers, the notification of intention to initiate the collective redundancy procedure was not forwarded to those representatives by the employer and, moreover, it was not communicated individually to each employee affected by that redundancy procedure.
Questions referred to Court of Justice of the European Union
The Court of Appeal, Bucharest, referred two questions to the Court of Justice of the European Union for a preliminary ruling:
- “Do the first subparagraph of] Article 1(1)(b) and Article 6 of the Directive, read in the light of recitals 2 and 6 of the preamble to that Directive, preclude national legislation which allows an employer not to consult the workers affected by a collective redundancy procedure since they have neither appointed representatives nor a legal obligation to appoint them?”
- “Are the first subparagraph of Article 1(1)(b) and Article 6 of the Directive read in the light of recitals 2 and 6 of the preamble to that Directive, to be interpreted as meaning that, in the circumstances described above, the employer is required to inform and consult all the employees affected by the collective redundancy procedure?”
Motivation of Court of Justice of the European Union
The Directive was transposed into Romanian law by Law no. 53/2003 of 24 January 2003 (the Romanian Labour Code), and in Article 69 it states that: ‘’Where the employer is contemplating collective redundancies, that employer shall begin consultations, in good time and with a view to reaching an agreement, under the conditions laid down by law, with the trade union or, as the case may be, the employees’ representatives, on at least the following matters’’.
It is apparent from the Court’s case-law that the main objective of the Directive is to make collective redundancies subject to prior consultation with the employees’ representatives and prior notification to the competent public authority.
However, the right to information and consultation provided for in the Directive is intended for employees’ representatives and not for employees individually. Thus, the provisions of the Directive do not require an employer to inform and consult individually the employees affected by projected collective redundancies.
Informing each of the employees concerned individually or consulting each of them, is incapable of ensuring that that objective is achieved because of the fact that the interests of the employees individually may not correspond to the interests of the employees taken as a whole. Additionally, employees individually do not have the legitimacy to interfere on behalf of employees taken as a whole, sustained the Court of Justice of the European Union.
Thus, informing each employee individually cannot be regarded as a minimum obligation of the employer contemplating collective redundancy, as provided for by the Directive.
Preliminary ruling
Therefore, since the provisions of the Directive do not impose an obligation on an employer to inform and consult individually the employees concerned by projected collective redundancies, the Court of Justice concluded that those provisions must be interpreted as not precluding national legislation which, in the absence of employees’ representatives, does not require an employer to inform and consult individually each employee affected by such projected collective redundancies and which does not require those employees to appoint such representatives, provided that that legislation makes it possible, in circumstances beyond the control of those employees, to guarantee the full effect of those provisions of the Directive, as amended.
In this respect, the general obligation of Member States is only to ensure that there are mechanisms through which employees can be represented in such situations, in order to guarantee the full effect of the rights conferred by the Directive, despite lacking the employer’s obligation to inform each employee individually of the projected collective redundancies.
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