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	Číslo (Kód CELEX): Number (CELEX Code):		61993J0449

	Název: Title:		JUDGMENT OF THE COURT (FIRST CHAMBER) OF 7 DECEMBER 1995. ROCKFON A/S V SPECIALARBEJDERFORBUNDET I DANMARK. REFERENCE FOR A PRELIMINARY RULING: OESTRE LANDSRET - DENMARK. COLLECTIVE REDUNDANCIES - ARTICLE 1 OF DIRECTIVE 75/129/EEC - DEFINITION OF' ESTABLISHMENT' - COMPANY FORMING PART OF A GROUP. CASE C-449/93.

	Publikace: Publication:		European Court Reports 1995 page I-4291

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Bouchereau Case 30/77 Regina v Bouchereau [1977] ECR 1999 · Botzen Case 186/83 Botzen and Others v Rotterdamsche Droogdok Maatschappij [1985] ECR 519


	Plný text: Fulltext:		Ne

Fakta:
Rockfon A/S (“Rockfon”) is a company which produces and markets insulating materials made from mineral wool. It is part of Rockwool, a multinational group, which, in 1989, had a total of 5 300 workers, 1 435 of them in Denmark. Rockfon and three other production companies in the group, Rockment A/S, Conrock A/S and Rockwool A/S, also based in Hedehusene (Denmark) share a joint personnel department responsible for recruitment and dismissal which forms part of Rockwool A/S. Under the internal instructions of the group, any dismissal decision must be taken in consultation with said personnel departement. Between 10 and 28 November 1989 Rockfon dismissed 25 employees belonging to its workforce of 162. Rockfon did not consult the employees concerned nor did it inform in writing the authority with responsibility in the matter of redundancies.
Following those dismissals, the Specialarbejderforbundet i Danmark (the Danish trade union for ssemi-skilled workers, hereinafter “SID”) instituted proceedings against Rockfon for payment of compensation for breach of the national provisions relating to large-scale dismissals which were intended to implement Council Directive 75/129/EEC
Of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1975 L 48, p. 29).
. Rockfon contended that it had not violated the Danish provisions relating to large-scale dismissals. While it accepted that the dismissal of 25 members of its workforce of 162 would constitute a mass dismissal, Rockfon argued that not merely its own work-force had to be taken into account but also that of the three other Danish companies of the group: Since it did not - under the aforementioned internal regulations of the company - have a management which can independently effect large-scale dismissals, it did not, under Danish law constitute an “establishment”. The “establishment” in the meaning of said law rather were the four Danish companies of the Rockwool group. Taken together, the four companies had a workforce of 1.435 and, pursuant the applicable law, the dismissal of 24 of those workers did not constitute a mass-dismissal.
Since the Danish law on large-scale dismissals implemented Council Directive 75/129/EEC, the Řstre Landsret (Eastern Regional Court) stayed the proceedings and referred to the Court of Justice a question which (in the Court’s interpretation) sought to establish two things: (1) whether Article 1(1)(a) of the Directive
Article 1(1)(a) of Directive 75/129 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:
- either over a period of 30 days:
(1) at least 10 in establishments normally employing more than 20 and less than 100 workers;
(2) at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers;
(3) at least 30 in establishments normally employing 300 workers or more;
- or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishment in question.”
precludes two or more undertakings in a group from establishing a joint recruitment and dismissal department so that dismissals in one of the undertakings may take place only with the approval of that department; and (2) whether, in such circumstances, the term “establishment” in Article 1(1)(a) of the Directive is to be taken to mean all the undertakings using that recruitment and dismissal departmen, or whether each undertaking in which the employees made redundant normally work must be counted as an “establishment”.

Názor soudu a komentář:
Council Directive 75/129, which has been adopted under Articles 100 and 117 of the EEC Treaty and which intends to achieve partial harmonization of the collective redundancy procedures pursues the object to afford workers greater protection in the event of collective redundancies. To this end it imposes on employers various obligations so as to avoid or limit collective redundancies by having consultation held with workers and their representatives in good time or in certain cases by having the competent authorities intervene.
With regard to the first question, the Court points out that the Directive, intending partial harmonization only, does not intend to restrict the freedom of undertakings to organize their activities and arrange their personnel departments in the way which they think best suits their needs. In particular, Article 1(1)(a) of the directive lays down no rules relating to the internal organization of undertakings or the management of their personnel.
The Court then turns to the interpretation of the term “establishment” of Article 1(1)(a) of Directive 75/129. In view of the different terms employed in the various language versions to convey the concept in question - which signify respectively establishment, undertaking, work centre, local unit or place of work -, the Court finds that the term cannot be interpreted on the basis of the wording. It therefore rather emphasizes the purpose and the general scheme of the rules of which the concept in question forms part (for this method of interpretation, see also
Bouchereau
). Having regard to the purpose of the directive, the Court points out that the interpretation proposed by Rockfon would render the directive ineffective and allow companies to circumvent the requirements set out therein in order to protect employees. Since the directive is intended to protect employees, the Court develops its definition of “establishment” from the employment relationship: “the Court has held that an employment relationship is essentially characterized by the link existing between the employee and the part of the undertaking or business to which he is assigned to carry out his duties” (
Botzen
). “The term ‘establishment’ appearing in Article 1(1)(a) of the Directive must therefore be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an ‘establishment’, for the unit in question to be endowed with a management which can independently effect collective redundancies.” This interpretation is also supported by the historical method of interpretation because the Commission’s initial proposal referred to the “local employment unit”.

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):