Opinion of Advocate General Van Gerven delivered on 2 March 1994

1 Original language: Dutch.

2 OJ 1977 L 61, p. 26.

3 OJ 1975 L 48, p. 29. This directive has in the meantime been amended by Council Directive 92/56/EEC of 24 June 1992 (OJ 1992 L 245, p. 3).

4 S. I. 1981 No 1794.

5 1975 c.71.

6 Translator's note: it should be noted that the English-language version of Directive 75/129 uses the expression workers' representatives, while Directive 77/187 uses the expression representatives of the employees. Except in direct citations from Directive 77/187, the former expression is used in this translation for the sake of consistency.

7 At the time when Directive 75/129 was adopted, the Employment Protection Act 1975 had not yet become law, although the Industrial Relations Act had been repealed. The Commission stresses, however, that during the negotiations between the Member States with regard to Directive 75/129 (1972-1975), there was at all material times in the United Kingdom either existing legislation on the matter or draft legislation designed to improve the mechanisms in question. Thus, according to the Commission, that directive was also based on the premiss that every Member State would have a mechanism for the designation of workers' representatives.

8 Case 61/81 Commission v United Kingdom [1982] ECR 2601.

9 Case 235/84 Commission v Italy [1986] ECR 2291.

10 Judgment in Case 105/84 Danmols Inventar [1985] ECR 2639, paragraphs 26 and 28.

11 The fact that worker representation within undertakings is politically a very sensitive issue on which the views of the Member States differ is apparent from, inter alia, the difficulties which have arisen in connection with discussions on worker participation in the context of the proposal dating from 1972 for a Fifth Directive concerning the structure of public limited companies and the powers and obligations of their organs (OJ 1972 C 131, p. 49; for the amended proposal, see OJ 1983 C 240, p. 2; see also the second amendment at OJ 1991 C 7, p. 4, and the third amendment at OJ 1991 C 321, p. 9), the proposal for a regulation on the Statute for a European company (OJ 1989 C 263, p. 41; for the amended proposal, see OJ 1991 C 176, p. 1) and the complementary proposal for a directive with regard to the involvement of employees in the European company (OJ 1989 C 263, p. 69; amended version in OJ 1991 C 138, p. 8). See also the discussions on the proposal for a directive on the establishment of a European Works Council in Community-scale undertakings or groups of undertakings for the purpose of informing and consulting employees (OJ 1991 C 39, p. 10; for the amended proposal, see OJ 1991 C 336, p. 11).

12 In its judgment in Case 284/83 Nielsen & Søn [1985] ECR 553, the Court stated, at paragraph 10, that the object of Directive 75/129 is to provide for consultation with the trade unions and for notification of the competent public authority prior to such dismissals.

13 Judgment in Case 91/81 Commission v Italy [1982] ECR 2133, paragraph 11.

14 That the Community endeavours in its social policy to avoid imposing unduly onerous obligations with regard to worker protection on small and medium-sized undertakings also becomes clear from Article 118a(2) of the Treaty, which was added by the Single European Act. Although it does not apply to the United Kingdom, Article 2(2) of die Agreement on social policy concluded between the Member States of the European Community with the exception of the United Kingdom of Great Britam and Northern Ireland annexed to the Protocol on social policy, which in turn is annexed to the EC Treaty by the Treaty on European Union, may also be referred to.

15 A number of recent directives in the area of social law impose obligations of information and consultation of workers and/or their representatives: see, for example, Articles 6, 10 and 11 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1); see also Directive 92/56ÆEC (cited in footnote 2 above), which adds to Directive 75/129 an Article 5a concerning access to judicial and/or administrative procedures.

16 Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19).

17 Judgment in Case 61/81, cited above in footnote 7, paragraph 9.

18 Judgment in Case 61/81, paragraph 13.

19 Judgment in Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 15.

20 Paragraph 20 of the judgment cited in footnote 8, with reference to the judgment in Case 143/83 Commission v Denmark [1985] ECR 427, paragraph 8, which concerned Directive 75/117 referred to in footnote 15.

21 The failure to fulfil obligations in Case 235/84 lay in the fact that Italy had implemented Article 6(1) and (2) by means of collective agreements which were limited to specific economic sectors (and which by reason of their contractual nature imposed obligations only in the relations between workers who were members of the trade unions in question and employers or undertakings on which the agreements were binding) and by way of legislation which applied only to undertakings declared by ministerial order to be in a state of crisis.

22 Judgment in Case 76/86 Commission v Germany [1989] ECR 1021, paragraph 8.

23 Judgment in Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6.

24 Judgment in Case 287/86 Ny Mølle Kro [1987] ECR 5465, paragraph 12; judgment in Case 324/86 Daddy's Dance Hall [1988] ECR 739, paragraph 9.

25 Robert Seligman Corp. v Baker [1983] ICR 770; Hadden v University of Dundee Students' Association [1985] IRLR 449.

26 Per Lord Oliver in Litster v Forth Dry Dock Co Ltd [1990] 1 AC 546; [1989] 1 All ER 1134.

27 In its judgment in Case 235/84, which has already been mentioned several times and is cited in footnote 8, the Court held, admittedly, at paragraph 14 that the answer to the question whether a directive has been properly implemented will depend on how the national provisions which, according to the Member State in question, implement the directive have been applied in practice, in particular by the national courts. I therefore do not want to rule out the possibility that account may have to be taken of judicial decisions. In the present cases, however, there is a decision of the House of Lords which is binding on the lower courts and which calls for an interpretation consistent with the directive. Of course, even in the absence of such a decision, national courts are, according to the case-law of the Court of Justice, under an obligation to interpret legislation in a manner consistent with a directive: see inter alia the judgment in Case 14/83 Von Colson and Kamann, cited in footnote 18, paragraph 26, and the judgment in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8.

28 Judgment in Case C-29/91 Dr Sophie Redmond Stichting [1992] ECR I-3189.

29 Judgment in Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637.

30 This was done by way of section 26 of the Trade Union Reform and Employment Rights Act 1993.

31 See, inter alia, the judgment in Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13, and the judgment in Case C-347/88 Commission v Greece [19901 ECR I-4747, paragraph 40.

32 See the judgment in Case 13/76 Donà [1976] ECR 1333, paragraph 12. The quotation is taken from paragraph 10 of the judgment in Case 196/87 Steymann[1988] ECR 6159, which refers expressly to the judgment in Donà.

33 Judgment in Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 20 (emphasis added).

34 This is no more than logical in view of the fact that the first paragraph of Article 60 of the EC Treaty treats only those services which are normally provided for remuneration as being services within the meaning of the Treaty.

35 Judgment in Case 263/86 Humbel [1988] ECR 5365, paragraph 17; recently confirmed at paragraph 15 of the Court's judgment in Case C-109/92 Wirth [1993] ECR I-6447.

36 Judgment in Case 196/87 Steymann, cited above in footnote 31, paragraph 12.

37 Cited in footnote 27.

38 Judgment in Case C-209/9I Watson Rask [1992] ECR I-5755.

39 The directive was announced in the Council Resolution of 21 January 1974 concerning a social action programme (OJ 1974 C 13, p. 1, more specifically p. 4).

40 Judgment in Poucet and Pistre, paragraphs 18 and 19.

41 Judgment in Case C-41/90 Höfner and Eher [1991] ECR I-1979, paragraph 21 (emphasis added), as cited again at paragraph 17 of the judgment in Poucet and Pistre.

42 See in extenso paragraphs 8 to 15 of the judgment in Poucet and Pistre.

43 The Court applied a similar restriction on the concept of economic activities in its judgment in Humbel, cited above. It there held that the characteristic of remuneration (and consequently the quality of the provision of services within the meaning of Article 60 of the EC Treaty) was absent in the case of courses provided under the national education system in view of the fact that the State, in establishing and maintaining such a system, was fulfilling its duties towards its own population in the social, cultural and educational fields (paragraph 18 of the judgment in Humbel, cited above in footnote 34).

44 Judgment in Case C-200/88 Commission v Greece, cited above in footnote 30, paragraph 9.

45 Judgment in Case C-7/90 Vandevenne and Others [1991] ECR I-4371, paragraph 11.

46 1978 c. 44.