6 July 2023 (*1)

6 July 2023 (*1)

(Reference for a preliminary ruling – Information and consultation of workers – Directive 2002/14/EC – Scope – Meaning of ‘undertaking carrying out an economic activity’ – Private-law entity operating in the public sector – Removal of workers appointed to managerial positions – No prior information or consultation of employee representatives)

(Reference for a preliminary ruling – Information and consultation of workers – Directive 2002/14/EC – Scope – Meaning of ‘undertaking carrying out an economic activity’ – Private-law entity operating in the public sector – Removal of workers appointed to managerial positions – No prior information or consultation of employee representatives)

In Case C‑404/22,

In Case C‑404/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Dioikitiko Protodikeio Athinon (Administrative Court of First Instance, Athens, Greece), made by decision of 3 May 2022, received at the Court on 16 June 2022, in the proceedings

REQUEST for a preliminary ruling under Article 267 TFEU from the Dioikitiko Protodikeio Athinon (Administrative Court of First Instance, Athens, Greece), made by decision of 3 May 2022, received at the Court on 16 June 2022, in the proceedings

Elliniko Dimosio,

THE COURT (Seventh Chamber),

Elliniko Dimosio,

composed of M.L. Arastey Sahún, President of the Chamber, F. Biltgen (Rapporteur) and N. Wahl, Judges,

THE COURT (Seventh Chamber),

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

composed of M.L. Arastey Sahún, President of the Chamber, F. Biltgen (Rapporteur) and N. Wahl, Judges,

having regard to the written procedure,

Advocate General: J. Richard de la Tour,

after considering the observations submitted on behalf of:

Registrar: A. Calot Escobar,

–Ethnikos Organismos Pistopoiisis Prosonton & Epangelmatikou Prosanatolismou (Eoppep), by K. Ithakisios and S. Papasaranti, dikigoroi,

having regard to the written procedure,

–the Greek Government, by A. Dimitrakopoulou, K. Georgiadis and M. Tassopoulou, acting as Agents,

–the European Commission, by A. Katsimerou and B.‑R. Killmann, acting as Agents,

after considering the observations submitted on behalf of:

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

–Ethnikos Organismos Pistopoiisis Prosonton & Epangelmatikou Prosanatolismou (Eoppep), by K. Ithakisios and S. Papasaranti, dikigoroi,

gives the following

–the Greek Government, by A. Dimitrakopoulou, K. Georgiadis and M. Tassopoulou, acting as Agents,

–the European Commission, by A. Katsimerou and B.‑R. Killmann, acting as Agents,

1This request for a preliminary ruling concerns the interpretation of Article 2(a) and Article 4(2)(b) of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (OJ 2002 L 80, p. 29).

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

2The request has been made in proceedings between the Ethnikos Organismos Pistopoiisis Prosonton & Epangelmatikou Prosanatolismou (National Organisation for the Certification of Qualifications and Vocational Guidance (Eoppep), Greece) and the Elliniko Dimosio (Greek State) concerning a fine imposed on that body for failure to provide the competent authority with documents demonstrating that the representatives of that organisation’s employees had been informed and consulted prior to the removal of two workers from their posts.

Legal context

gives the following

European Union law

3Recitals 7 to 10 of Directive 2002/14 state:

1This request for a preliminary ruling concerns the interpretation of Article 2(a) and Article 4(2)(b) of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (OJ 2002 L 80, p. 29).

(7) There is a need to strengthen dialogue and promote mutual trust within undertakings in order to improve risk anticipation, make work organisation more flexible and facilitate employee access to training within the undertaking while maintaining security, make employees aware of adaptation needs, increase employees' availability to undertake measures and activities to increase their employability, promote employee involvement in the operation and future of the undertaking and increase its competitiveness.

2The request has been made in proceedings between the Ethnikos Organismos Pistopoiisis Prosonton & Epangelmatikou Prosanatolismou (National Organisation for the Certification of Qualifications and Vocational Guidance (Eoppep), Greece) and the Elliniko Dimosio (Greek State) concerning a fine imposed on that body for failure to provide the competent authority with documents demonstrating that the representatives of that organisation’s employees had been informed and consulted prior to the removal of two workers from their posts.

(8) There is a need, in particular, to promote and enhance information and consultation on the situation and likely development of employment within the undertaking and, where the employer’s evaluation suggests that employment within the undertaking may be under threat, the possible anticipatory measures envisaged, in particular in terms of employee training and skill development, with a view to offsetting the negative developments or their consequences and increasing the employability and adaptability of the employees likely to be affected.

(9) Timely information and consultation is a prerequisite for the success of the restructuring and adaptation of undertakings to the new conditions created by globalisation of the economy, particularly through the development of new forms of organisation of work.

Legal context

(10) The [European] Community has drawn up and implemented an employment strategy based on the concepts of “anticipation”, “prevention” and “employability”, which are to be incorporated as key elements into all public policies likely to benefit employment, including the policies of individual undertakings, by strengthening the social dialogue with a view to promoting change compatible with preserving the priority objective of employment.

European Union law

4Article 1(1) of that directive provides:

3Recitals 7 to 10 of Directive 2002/14 state:

‘The purpose of this Directive is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Community.’

(7)There is a need to strengthen dialogue and promote mutual trust within undertakings in order to improve risk anticipation, make work organisation more flexible and facilitate employee access to training within the undertaking while maintaining security, make employees aware of adaptation needs, increase employees' availability to undertake measures and activities to increase their employability, promote employee involvement in the operation and future of the undertaking and increase its competitiveness.

5Under Article 2 of that directive:

(8)There is a need, in particular, to promote and enhance information and consultation on the situation and likely development of employment within the undertaking and, where the employer’s evaluation suggests that employment within the undertaking may be under threat, the possible anticipatory measures envisaged, in particular in terms of employee training and skill development, with a view to offsetting the negative developments or their consequences and increasing the employability and adaptability of the employees likely to be affected.

‘For the purposes of this Directive:

(a) “undertaking” means a public or private undertaking carrying out an economic activity, whether or not operating for gain, which is located within the territory of the Member States;

(9)Timely information and consultation is a prerequisite for the success of the restructuring and adaptation of undertakings to the new conditions created by globalisation of the economy, particularly through the development of new forms of organisation of work.

…

(10)The [European] Community has drawn up and implemented an employment strategy based on the concepts of “anticipation”, “prevention” and “employability”, which are to be incorporated as key elements into all public policies likely to benefit employment, including the policies of individual undertakings, by strengthening the social dialogue with a view to promoting change compatible with preserving the priority objective of employment.’

(f) “information” means transmission by the employer to the employees' representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it;

4Article 1(1) of that directive provides: ‘The purpose of this Directive is to establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the Community.’

(g) “consultation” means the exchange of views and establishment of dialogue between the employees’ representatives and the employer.’

5Under Article 2 of that directive: ‘For the purposes of this Directive:

6Article 4 of Directive 2002/14, headed ‘Practical arrangements for information and consultation’, provides in paragraph 2 thereof:

‘Information and consultation shall cover:

(a)“undertaking” means a public or private undertaking carrying out an economic activity, whether or not operating for gain, which is located within the territory of the Member States;

(a) information on the recent and probable development of the undertaking’s or the establishment’s activities and economic situation;

…

(b) information and consultation on the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment;

(f)“information” means transmission by the employer to the employees' representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it;

(c) information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations, including those covered by the Community provisions referred to in Article 9(1).’

(g)“consultation” means the exchange of views and establishment of dialogue between the employees’ representatives and the employer.’

Greek law

6Article 4 of Directive 2002/14, headed ‘Practical arrangements for information and consultation’, provides in paragraph 2 thereof: ‘Information and consultation shall cover:

Presidential Decree 240/2006

7Proedriko diatagma 240/2006, Peri thespiseos geknikou plaisiou enimeroseos kai diavouleuseos ton ergazomenon simfona me tin odigia 2002/14/EK tis 11.3.2002 tou Europaikou Koinovouliou kai tou Symvouliou (Presidential Decree 240/2006, establishing a general framework for informing and consulting employees in accordance with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002), of 9 November 2006 (FEK A’ 252/16.11.2006; ‘Presidential Decree 240/2006’), transposed Directive 2002/14 into the Greek legal order.

(a)information on the recent and probable development of the undertaking’s or the establishment’s activities and economic situation;

8Article 2 of that presidential decree reproduces the definitions set out in Article 2 of Directive 2002/14.

(b)information and consultation on the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment;

9Article 4 of that presidential decree, headed ‘Practical details on information and consultation’ reproduces, in paragraphs 2 to 4 thereof, the provisions of Article 4(2) to (4) of Directive 2002/14, respectively.

(c)information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations, including those covered by the Community provisions referred to in Article 9(1).’

Law 4115/2013

Greek law

10Nomos 4115/2013, Organosi kai leitourgia Idrimatos Neolaias kai Dia Viou Mathisis kai Ethnikou Organismou Pistopoiisis Prosonton & Epangelmatikou Prosanatolismou kai alles diatakseis (Law 4115/2013 on the organisation and operation of a youth and lifelong learning foundation and a national organisation for the certification of qualifications and vocational guidance and other provisions), of 29 January 2013 (FEK Α’ 24/30.1.2013; ‘Law 4115/2013’), determines, inter alia, the powers and areas of competence of Eoppep.

Presidential Decree 240/2006

11Article 13 of that law provides:

‘1. By joint decision 119959/H/20.10.2011 … [of the Minister for Finance and of the Minister] for Education, Professional Development and Religious Affairs …, the private-law legal entity registered as “Ethniko Kentro Pistopoiisis Domon Dia Viou Mathisis” [(Ekepis)] (National Centre for the Certification of Lifelong Learning Structures) … and the private-law legal entity registered as “Ethniko Kentro Epagelmatikou Prosanatolismou” [(EKEP)] (National Centre for Vocational Guidance) … have been merged with the private-law legal entity registered as Ethnikos Organismos Pistopoiisis Prosonton [(EOPP)] (National Organisation for the Certification of Qualifications) … and have ceased to exist as independent legal entities. By way of the same joint ministerial decision, the private-law legal entity registered as “Ethnikos Organismos Pisopoiisis Prosonton” (EOPP) has been renamed “Ethnikos Organismos Pistopoiisis Prosonton & Epagelmatikou Prosanatolismou” (Eoppep) (National Organisation for the Certification of Qualifications and Vocational Guidance).

7Proedriko diatagma 240/2006, Peri thespiseos geknikou plaisiou enimeroseos kai diavouleuseos ton ergazomenon simfona me tin odigia 2002/14/EK tis 11.3.2002 tou Europaikou Koinovouliou kai tou Symvouliou (Presidential Decree 240/2006, establishing a general framework for informing and consulting employees in accordance with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002), of 9 November 2006 (FEK A’ 252/16.11.2006; ‘Presidential Decree 240/2006’), transposed Directive 2002/14 into the Greek legal order.

8Article 2 of that presidential decree reproduces the definitions set out in Article 2 of Directive 2002/14.

12Article 14 of that law provides:

9Article 4 of that presidential decree, headed ‘Practical details on information and consultation’ reproduces, in paragraphs 2 to 4 thereof, the provisions of Article 4(2) to (4) of Directive 2002/14, respectively.

‘1. Eoppep is the national certification body for individuals entering or leaving non-formal education and training; it acts as a national structure in European networks managing qualifications and European tools of transparency and mobility, such as the national coordination point for the European Qualifications Framework, the national Europass centre, [and] the Greek national vocational guidance information centre, a member of the Euroguidance network, the national reference point for the European Quality Assurance Reference Framework for Vocational Education and Training (EQAVET) and the European Credit System for Vocational Education and Training (ECVET).

Law 4115/2013

(a) the certification of individuals entering non-formal education and, in particular:

10Nomos 4115/2013, Organosi kai leitourgia Idrimatos Neolaias kai Dia Viou Mathisis kai Ethnikou Organismou Pistopoiisis Prosonton & Epangelmatikou Prosanatolismou kai alles diatakseis (Law 4115/2013 on the organisation and operation of a youth and lifelong learning foundation and a national organisation for the certification of qualifications and vocational guidance and other provisions), of 29 January 2013 (FEK Α’ 24/30.1.2013; ‘Law 4115/2013’), determines, inter alia, the powers and areas of competence of Eoppep.

(aa) certification of professional structures and courses, as well as programmes run by institutions offering initial and continuing vocational training and education and non-formal education more generally, including general adult education;

11Article 13 of that law provides: ‘1. By joint decision 119959/H/20.10.2011 … [of the Minister for Finance and of the Minister] for Education, Professional Development and Religious Affairs …, the private-law legal entity registered as “Ethniko Kentro Pistopoiisis Domon Dia Viou Mathisis” [(Ekepis)] (National Centre for the Certification of Lifelong Learning Structures) … and the private-law legal entity registered as “Ethniko Kentro Epagelmatikou Prosanatolismou” [(EKEP)] (National Centre for Vocational Guidance) … have been merged with the private-law legal entity registered as Ethnikos Organismos Pistopoiisis Prosonton [(EOPP)] (National Organisation for the Certification of Qualifications) … and have ceased to exist as independent legal entities. By way of the same joint ministerial decision, the private-law legal entity registered as “Ethnikos Organismos Pisopoiisis Prosonton” (EOPP) has been renamed “Ethnikos Organismos Pistopoiisis Prosonton & Epagelmatikou Prosanatolismou” (Eoppep) (National Organisation for the Certification of Qualifications and Vocational Guidance).

(bb) certification of institutions offering support services and institutions providing vocational guidance and counselling; and

(cc) where applicable, the grant of operating licences to such institutions;

12Article 14 of that law provides: ‘1. Eoppep is the national certification body for individuals entering or leaving non-formal education and training; it acts as a national structure in European networks managing qualifications and European tools of transparency and mobility, such as the national coordination point for the European Qualifications Framework, the national Europass centre, [and] the Greek national vocational guidance information centre, a member of the Euroguidance network, the national reference point for the European Quality Assurance Reference Framework for Vocational Education and Training (EQAVET) and the European Credit System for Vocational Education and Training (ECVET).

(b) guaranteeing conditions and pursuing objectives – in matters relating to the certification of individuals entering and leaving non-formal education – referred to in national, European or co-financed vocational training programmes;

(c) the establishment and development of the National Qualifications Framework and the alignment thereof with the European Qualifications Framework, the alignment of qualifications obtained through formal and non-formal education and non-formal training with the levels within the National Qualifications Framework, the alignment of the latter with international sectoral qualifications and the development of descriptive sectoral indicators in terms of knowledge, skills and aptitudes, which shall correspond to the levels within the National Qualifications Framework;

(d) the certification of individuals leaving non-formal education and training and, in particular:

(a)the certification of individuals entering non-formal education and, in particular:

(aa) the introduction of a system for recognising and validating qualifications obtained through non-formal education and training, the certification of those qualifications and the alignment thereof with the levels within the National Qualifications Framework;

(aa)certification of professional structures and courses, as well as programmes run by institutions offering initial and continuing vocational training and education and non-formal education more generally, including general adult education;

(bb) the certification of adult educators, support service professionals and professionals providing vocational guidance and counselling services; and

(bb)certification of institutions offering support services and institutions providing vocational guidance and counselling; and

(cc) the granting of licences, the control and supervision of the operation of institutions certifying qualifications obtained through non-formal education and training;

(cc)where applicable, the grant of operating licences to such institutions;

(e) the development and implementation of a system for transferring credits obtained through vocational teaching and vocational training;