Opinion of Advocate General Darmon delivered on 25 November 1992

1 Original language: French.

2 Paragraph 1 of the Law on unfair dismissal defines a dismissal as socially unjustified where it is not based cither on grounds relating to the person or behaviour of the employee or on overriding needs of the undertaking which preclude the further employment of the worker by that undertaking.

3 Sec the concept of protection of acquired rights developed by the Commission at paragraph 4 of its written observations.

4 Paragraphs 9 and 10 of the Law on unfair dismissal.

5 Page 12 of the order for reference for a preliminary ruling (English translation)

6 Second and third sentences of Paragraph 23(1) of the Law on unfair dismissal.

7 Contrary to the calculation of the national court at pages 3 and 5 of the reference for a preliminary ruling, the number of workers must be four and not three before being taken into account by virtue of Paragraph 23(1) of the Law on unfair dismissal.

8 OJ 1976 L 39, p. 40.

9 Case 30/59 Steenkolenmijnen v High Authority [1961] ECR1.

10 ECR 19 ibid.

11 Page 3 of its observations.

12 Case 78/76 [1977] ECR 595.

13 Judgment in Case 77/72 Capolongo v Maya [1973] ECR 611, paragraph 6; sec also Üle last part of paragraph lOin the judgment in Steinike and Weinlig.

14 Paragraphs 14 and 15 op. cit..

15 Cases C-72/91 and C-73/91, Opinion delivered on 17 March 1992 (sec in particular paragraphs 12 to 47).

16 Judgment in Case 290/83 Commission v France [1985] ECR 439; sec also the judgment in Case 78/76 Steinike and Weinlig [1977] ECR 595; the judgment in Case 57/86 Greece v Commission [1988] ECR 2855, paragraph 12; the judgment in Cases 67, 68 and 70/85 Van der Kooy v Commission [1988] ECR 219, paragraph 35.

17 Case 82/77 [1978] ECR 25.

18 Paragraph 25.

19 Paragraph 24.

20 Commission Decision 85/239/EEC of 18 April 1985 terminating the anti-subsidy proceeding concerning imports of soya meal originating in Argentina (OJ L 108, p. 28); see also Commission Decision 85/233/EEC of 16 April 1985 terminating the anti-subsidy proceeding concerning imports of soya meal originating in Brazil (OJ L 106, p. 19, paragraph 12.3).

21 Judgment of 14 July 1988 in Case 187/85 [1988] ECR 4155.

22 Judgment in Steuuke and Wcinlig, paragraph 21, cited above.

23 Judgment of 2 July 1974 in Case 173/73 Italy v Commimon [1974] ECR 709. third indent of paragraph 15.

24 Supra, paragraphs 2 to 4.

25 Article 18 of Law No 300 of 20 May 1970 (Statuto dci lavoratori).

26 Article 24(3) of the Law of 24 May 1989 on contracts of employment.

27 Article 15 of Decree-Law No 64-A/89.

28 Article I. 122 14 4 of lhe Code du Travail.

29 Article L 122 14 5 of the Code du Travail.

30 Luxembourg 1988. p. 4.

31 Page 45

32 Paragraph 11 of the order for reference for a preliminary ruling.

33 COM(90) 228 final-SYN 280 (OJ 1990 C 224, p. 6. The Court should note that the other two proposed directives relating to working conditions and measures intended to promote the improvement of the health and safety of temporary workers does not contain any particular provision relating to dismissal.

34 COM(90) 533 final-SYN 280 (OJ C 305, p. 8).

35 The specific problems faced by SMEs (...) call for a degree of positive action by government to level the playing field and perhaps tip it slightly in their favour (OJ 1992 C 213, p. 2. paragraph 1(4)).

36 Page 7 of its observations.

37 Sec Council Decision of 28 July 1989 on the improvement of the business environment and the promotion of the development of enterprises, and in particular small and medium sized enterprises, in the Community (OJ 1989 L 239, p.33).

38 Expression used notably by A. Matterà in l.e marcile unique européen, iei règles, son fonctionnement, Jupiter, 1990, 2nd Edition. p.67.

39 Judgment of 14 July 1983 in Casc 203/82 [1983; ECR 2525.

40 Underlined in the [French' text.

41 My emphasis.

42 Judgment in Joined Cases 6 and 11/69 [1969] ECR 523.

43 Paragraph 21.

44 Paragraph 50.

45 Sec footnote 22.

46 Third indent of paragraph 3. My underlining.

47 Paragraphs 10 and II of its observations.

48 Joined Cases C-78/90 lo C 83/90 [1992] ECR 1 1847,

49 Paragraph 35. My underlining.

50 Paragraphs 25 and 26.

51 Judgment of 26 February 1986 Marshall v Southampton and South West Hampshire Health Authority, Case 152/84 [1986] ECR 723.

52 Paragraph 52.

53 Paragraph 48.

54 Judgment in Case C-188/90 [1990] ECR I-3313.

55 Paragraphs 18, 19 and 2C.

56 Case 14/83 11984] LCR 1891.

57 Paragraph 26. My underlining.

58 Paragraph 28, my underlining.

59 Sec in particular the judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, at paragraph 53.

60 Judgment of 17 May 1990 in Case C-262/88 [1990] ECR I-1889.

61 My underlining.

62 Judgment in Case C-106/89 [1990] ECR I-4135.

63 Paragraph 8 of the Opinion, my underlining.

64 Paragraph 8.

65 Paragraph 9.

66 Paragraph 13, my underlining.

67 Ruzius-Wilbrink v Bedrijfsvereniging voor Overheidsdiensten Casc C-102/88 [1989] ECR 4311.

68 Jenkins v Kingsgate Casc 96/80 [1981] ECR 911.

69 Judgment in Ruzius, cited above, paragraph 17.

70 Paragraph 30 of its observations.

71 Paragraph 14.

72 Page 21 of the reference for a preliminary ruling.

73 Bilka v Weber von Hanz Casc 170/84 [1986] ECR 1607.

74 Paragraph 36.

75 Rinner-Kühn v FWW SpeziaJ-Gebäudereinigung Casc 171/88 [1889] ECR 2743.

76 Paragraph 15.