Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The case in which I am giving my opinion today is concerned with the interpretation of Council Directive No 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies (Official Journal 1975 L 48, p. 29).

A. The facts; for the details of which I refer to the Report for the Hearing, may be summarized as follows:

B. My opinion on these questions is as follows:

I. First question

1. The purpose of this question is to ascertain whether the termination of their employment by the workers on 19 March 1980 falls within the scope of Council Directive No 75/129. That could only be the case, as the national court rightly observes, if the conduct of the workers on that day were to be considered under Danish law as legally effective termination of their employment. If, on the other hand, the workers' absence from work were regarded simply as an interruption of their employment, as suggested by the intervener, whose observations are endorsed by the defendant in the main proceedings, the definitive termination of their employment would have taken place after the bankruptcy proceedings had commenced. Such cases are, however, expressly excluded from the scope of the directive by Article 1 (2) (d), which provides that the directive is not to apply to workers affected by the termination of an establishment's activities where that is the result of a judicial decision.

2. All the parties rightly assume that, according to the wording of the definition of collective redundancies given in Article 1 (1) (a), the directive applies only to dismissals effected by an employer (Entlassungen die ein Arbeitgeber... vornimmt, afskedigelser, som foretages af en arbejdsgiver, licenciements effectués par un employeur, ogni licenziamento effettuato da un datore di lavoro, het ontslag door een werkgever). Thus the directive mainly contains obligations for the employer. According to Article 2, workers are to be consulted before collective redundancies are effected and according to Article 3 all projected collective redundancies are to be notified to the competent authorities.

II. Second question

1. Although the relevant Danish provision apparently deals only with the failure to comply with Article 3 of the directive, the national court wishes to know, in relation to Article 2 (1), whether the directive applies to collective redundancies which ought to have been contemplated in view of the financial position of the undertaking but were not so contemplated and consequently the procedure for consultation provided for in the directive was also not complied with.

2. The consultation prior to collective redundancies must take place, according to the wording of Article 2 in all the language versions except the German, where an employer is contemplating collective redundancies (pataenker at foretage, envisage d'effectuer, prevede di effettuare, overweegt,). On the other hand, the employer is only required to inform the competent authority under Article 3 if, after consultations with the workers' representatives, he draws up a plan for collective redundancies (Plan einer Massenentlassung, enhver plan om kollektive afskedigelser, tout projet de licenciement collectif, ogni progetto di licenziamento, elk plan voor collectief ontslag, any projected collective redundancies). From that linguistic distinction it may be inferred that the employer must give notice to the competent authorities if he actually plans to make collective redundancies, whereas representatives of the workers must be consulted at an earlier stage.

3. Legal consequences might at most be attached to the failure to consult representatives of the workers if there were an obligation in the directive to contemplate collective redundancies in certain circumstances. I concur, however, with the Commission and the intervener in the main proceedings in not being able to see, either in the directive or in other Community measures, any such obligation to contemplate collective redundancies in the event of financial difficulties. On the contrary, the directive contains no provisions specifying the cases in which the employer must contemplate collective redundancies and it does not restrict his discretion in determining whether and when he should contemplate or plan such measures.

4. The interpretation proposed by the plaintiffs in the main proceedings would have the further consequence, as the Commission rightly observed, that each undertaking which has to cease trading after insolvency and failed to contemplate collective redundancies and consult representatives of the workers in good time would incur the penalties provided under national law in implementation of the directive. As is apparent however from Article 1 (2) (d), the directive does not apply to collective redundancies connected with bankruptcy proceedings.

C. In conclusion I propose that the Court should therefore answer the two questions as follows :

1 Translated from the German