Advocate General’s Opinion - 3 September 2015#Pujante Rivera#Case C-422/14#Advocate General: Kokott

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 03 September 2015
• Celex Number: 62014CC0422

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 3 September 2015 (1)

Case C‑422/14

Christian Pujante Rivera

v

Gestora Clubs Dir SL

and

Fondo de Garantía Salarial

(Request for a preliminary ruling from the Juzgado de lo Social de Barcelona (Spain))

(Directive 98/59/EC — Article 1 — Collective redundancies — Calculation of the numerical threshold for application of the directive — Taking into account of fixed-term workers — Terminations of employment contracts to be assimilated to redundancies)

I – Introduction

1. The circumstances in which Directive 98/59/EC on collective redundancies (2) is applicable continue to be the subject of litigation. (3) In the present preliminary ruling procedure, the Court must again consider the thresholds to be met before workers affected by collective redundancy come within the protection conferred by the directive. Ultimately, these guarantees flow from the basic right to protection against unjustified dismissal (see Article 30 of the Charter of Fundamental Rights of the European Union).

2. The background to these proceedings is a dispute concerning the dismissal on economic grounds of a Spanish employee, Mr Pujante Rivera, in 2013. Having regard to the number of terminations in various forms which were close in time to his own dismissal, he accuses his former employer of having wrongly disregarded the collective redundancy procedure required by Directive 98/59.

3. At issue is ultimately the continuation of Mr Pujante Rivera’s employment relationship. This is because, while the directive does not by any means prevent an employer from making redundancies, where there is a collective redundancy the employer must comply with certain obligations as to information and consultation imposed by EU law. If it does not fulfil these obligations, this can have the consequence under Spanish law that individual redundancies are invalid.

4. Specifically, the first question in the present case is whether fixed-term workers also count in determining whether the threshold in Directive 98/59 for the application of the directive has been reached. Second, it is necessary to clarify the conditions under which certain means of terminating employment contracts, which are in principle assimilated to redundancy within the meaning of the directive, are to be taken into account in that threshold calculation. Finally, it is necessary to determine how a termination at the request of the employee is to be categorised for the purposes of the directive, where the termination ultimately comes about in response to a previous substantial change in working conditions initiated unilaterally by the employer.

II – Legal framework

A – EU law

5. Directive 98/59 codified and repealed Directive 75/129/EEC (4) and Directive 92/56/EEC (5) which amended it.

6. The relevant provisions of Article 1 of Directive 98/59 are as follows:

‘1. 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 … the number of redundancies is:

(i) … 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);

(b) …

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.

2. This Directive shall not apply to:

(a) collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts;

…’

B – National law

7. Article 41 of the Spanish Estatuto de los Trabajadores (6) (‘Workers’ Statute’) provides:

‘(1) The management of the undertaking may impose substantial changes in working conditions where there are proven economic, technical, organisational or production grounds for doing so… Substantial changes in working conditions shall be deemed to be, among others, those that affect the following matters:

a) Hours of work;

b) Working hours and distribution of working time;

c) Shift working;

d) Pay schemes and rates of pay;

e) The work and performance regime;

f) Duties …

(2) …

(3) … In the cases specified in letters (a), (b), (c), (d) and (f) of paragraph 1 of this Article, if the employee suffers loss in consequence of the significant change in working conditions he has the right to terminate his employment and a claim to damages …’

8. Article 50 of the Workers’ Statute (‘Termination at employee’s request’) states:

‘(1) The following shall be valid grounds on which the worker may request the termination of the contract:

(a) Substantial changes in working conditions which are made without due regard for the provisions of Article 41 of this Law and which have the consequence of adversely affecting the dignity of the worker.

…’

9. Article 51 of the Workers’ Statute (‘Collective redundancies’) provides inter alia:

‘(1) For the purposes of this Law, collective redundancy shall mean the termination of employment contracts based on economic, technical, organisational or production grounds, where, over a period of 90 days, the termination affects at least:

a) 10 workers, in undertakings employing fewer than 100 workers;

b) 10% of the number of workers in the undertaking in undertakings employing between 100 and 300 workers;

c) 30 workers in undertakings employing more than 300 workers.

…

For the purpose of calculating the number of contract terminations for the purposes of the first subparagraph of this paragraph, all other terminations of an employment contract during the period of reference which occur on the employer's initiative for other reasons not related to the individual worker concerned shall also be taken into account … provided that at least five employees are affected.

…’

10. Article 122(2)(b) of the Ley 36/2011 Reguladora de la Jurisdicción Social (7) states that a decision to terminate a contract shall be void if it has been effected in circumvention of the law, by avoiding the rules laid down for collective redundancies.

III – Facts and questions referred

11. Underlying the present reference for preliminary ruling is a dispute between Mr Pujante Rivera and his former employer, Gestora Clubs Dir (‘Gestora’).

12. At the beginning of September 2013, Gestora employed 126 employees, of whom 114 were permanent and 12 temporary.

13. Between 16 and 26 September 2013 Gestora terminated the contracts of 10 of its employees on objective grounds, including that of Mr Pujante Rivera. In each case, economic, production and organisational reasons were given. In the 90 days before and after 26 September 2013, there were in addition 31 further contract terminations. Of these, 23 were terminations in consequence of the expiry of the agreed contract term, five were voluntary redundancies, one was a dismissal for disciplinary reasons, which was later recognised as unfair and made the subject of an award of damages, one termination was during a probationary period, and finally there was one consensual termination under Article 50 of the Workers’ Statute.

14. The employee affected by the lastmentioned termination received notification on 15 September 2013 of a change to her working terms consisting in a 25% reduction of her salary, which was based on Article 41 of the Workers’ Statute and on the same objective grounds as those relied on in the individual terminations arising between 16 and 26 September 2013. Five days later, the employee in question agreed to enter into a contract terminating the employment relationship. However, in a subsequent administrative conciliation process, Gestora recognised that the changes to her employment contract which had been notified to the employee exceeded the limits set out in Article 41 of the Workers’ Statute, and agreed to termination of that contract on the basis of Article 50 of the Workers’ Statute, with compensation being payable.

15. For his part, Mr Pujante Rivera challenged the termination of his contract of employment. In his view, having regard to the total number of contract terminations which occurred in the 90-day periods before and after his redundancy, Gestora was under a duty to carry out a collective redundancy procedure. In his view, for the purposes of calculating the numerical threshold which applies for triggering that procedure, in addition to terminations on objective grounds there also had to be taken into account all other terminations which occurred in this period, except for the five voluntary ones.

16. For its part, Gestora argued that in order to calculate the numerical threshold there had to be taken into account, in addition to the 10 terminations on objective grounds, the dismissal on disciplinary grounds subsequently recognised as unfair, but not the other terminations. Accordingly, in its view there was no need to conduct a collective redundancy procedure.

17. In this connection, the Jugzado de lo Social de Barcelona, which is called upon to decide the dispute, has doubts as to the interpretation of Directive 98/59, and by order of 1 September 2014, lodged on 12 September 2014, referred the following three questions to the Court for a preliminary ruling:

1. If fixed-term workers, whose contracts have been terminated on the lawful ground that those contracts are temporary, are to be regarded as falling outside the scope and protection of Directive 98/59 on collective...