Ender Balkaya v Kiesel Abbruch- und Recycling Technik GmbH.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Rodin
• ECLI: ECLI:EU:C:2015:455
• Docket Number: C-229/14
• Date: 09 July 2015
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (First Chamber)

9 July 2015 ( *1 )

‛Reference for a preliminary ruling — Directive 98/59/EC — Article 1(1)(a) — Collective redundancies — Concept of ‘worker’ — Member of the board of directors of a limited liability company — Person working under a scheme for training and reintegration into the labour market and benefitting from a public training grant but not receiving remuneration from the employer’

In Case C‑229/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Arbeitsgericht Verden (Germany), made by decision of 6 May 2014, received at the Court on 12 May 2014, in the proceedings

Ender Balkaya

v

Kiesel Abbruch- und Recycling Technik GmbH,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, S. Rodin (Rapporteur), A. Borg Barthet, E. Levits and M. Berger, Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— E. Balkaya, by M. Barton, Rechtsanwalt,

— Kiesel Abbruch- und Recycling Technik GmbH, by P. Wallenstein, Rechtsanwalt,

— the Estonian Government, by N. Grünberg, acting as Agent,

— the Polish Government, by B. Majczyna, acting as Agent,

— the European Commission, by M. Kellerbauer and J. Enegren, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of 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 (OJ 1998 L 225, p. 16).

2 The request has been made in proceedings between Mr Balkaya and Kiesel Abbruch- und Recycling Technik GmbH (‘Kiesel Abbruch’) concerning the lawfulness of a dismissal on economic grounds announced by the latter, upon the closure of an establishment, no notification of the projected collective redundancies having being given to the Bundesagentur für Arbeit (German Federal Employment Agency) before that dismissal.

Legal context

EU legislation

3 Article 1(1) of Directive 98/59 provides: ‘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, 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.’

4 Article 3 of Directive 98/59 provides: ‘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.’

5 Article 4(1) and (2) of the directive provides: ‘1. 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. Member States may grant the competent public authority the power to reduce the period provided for in the preceding subparagraph. 2. The period provided for in paragraph 1 shall be used by the competent public authority to seek solutions to the problems raised by the projected collective redundancies.’

6 According to Article 5 of the 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.’

German law

7 Paragraph 17 of the Law on protection against unfair dismissal (Kündigungsschutzgesetz, ‘KSchG’), which lays down the requirement to give a collective redundancies notice, is worded as follows: ‘(1) The employer is under an obligation to notify the Employment Agency before it makes redundant: 1. more than 5 workers in establishments normally employing more than 20 and less than 60 workers; … over a period of 30 calendar days. Any other termination of an employment relationship brought about by the employer shall be assimilated to redundancy. (2) If the employer contemplates making redundancies that are subject to the obligation to issue a notification under subparagraph 1 it shall promptly provide the works council with the appropriate information and notify it in writing, in particular, of: 1. the reasons for the projected redundancies; 2. the number and professional categories of workers to be made redundant; 3. the number and professional categories of workers normally employed; 4. the period over which the redundancies are expected to take place; 5. the proposed criteria for selecting the workers to be made redundant; 6. the proposed criteria for calculating any redundancy payments. … (3) The employer must simultaneously forward to the Employment Agency a copy of the notice given to the works council; this must contain at least the details stated in points 1 to 5 of the first sentence of subparagraph 2. … (5) The following shall not be regarded as workers for the purposes of this paragraph: 1. in establishments of one legal person, the members of the body that is responsible for the legal representation of that person; 2. in unincorporated associations without a legal personality, the persons entitled under the law, the statutes or by the articles of association to represent that association; 3. company directors, managers of the establishment and other persons holding analogous managerial posts, in so far as they are themselves authorised to take decisions relating to the recruitment and dismissal of workers.’

8 Paragraph 6 of the Law on limited liability companies (Gesetz betreffend die Gesellschaft mit beschränkter Haftung, ‘GmbHG’), concerning the status of director, provides: ‘(1) The company shall have one or more directors. (2) Only a natural person with full legal capacity may be a director. … (3) Shareholders or any other persons may be appointed as directors. The appointment shall be made either in the company’s articles of association or in accordance with the provisions of the third chapter of this law. …’

9 Paragraph 35 of the GmbHG provides: ‘(1) The company shall be represented in legal proceedings and in other matters by its directors. (2) Where several directors have been appointed, they are only authorised to represent the company jointly, unless the articles of association provide otherwise … …’

10 Paragraph 37 of the GmbHG, headed ‘Limitation on the power of representation’, provides: ‘(1) The directors are required to respect, as regards the company, the limitations imposed on their power of representation by the articles of association or, unless otherwise stated in the articles of association, by the decisions of the shareholders. (2) The limitations on the directors’ power of representation may not be relied on against third parties. That shall be the case, in particular, when the representation is limited to certain legal acts or categories of legal act, or to certain circumstances, or to a certain period, or to certain named places or, furthermore, when the consent of the shareholders or of a body of the company is required for certain acts.’

11 Paragraph 38 of the GmbHG, concerning the removal of directors, provides: ‘(1) The directors may be removed at any time, without prejudice to any claim for damages that may arise under existing contracts. (2) The articles of association may limit the power to remove a director to cases in which there are serious reasons justifying that decision. Such reasons include, inter alia, serious breach of duty or lack of fitness to conduct the business of the company properly.’

12 Paragraph 43 of the GmbHG on directors’ liability provides: ‘(1) The directors must conduct the company’s business using the care due of a prudent businessman. (2) Directors who breach their obligations shall be jointly and severally liable to the company for the damage that they have caused. ...’

13 Paragraph 46 of the GmbHG, headed...