29.3.2008

Official Journal of the European Union

C 79/17

(Case C-12/08)

(2008/C 79/30)

Language of the case: French

Referring court

Parties to the main proceedings

Applicant: Mono Car Styling SA, in liquidation

Defendants: Dervis Odemis, Marc Bayard, Pietro Dimola, Danielle Marra, Youssef Belkaid, Marie-Christine Henri, Philippe Tistaert, Richard Toussaint, Alexandre Van Rutten, François Cristantielli, Khalid Zari, Isabelle Longaretti, Luigi Deiana, Vincent Hellinx, Christophe Novelli, Domenico Castronovo, Rachid Hitti, Alberto D'Errico, Marco Quaranta, Primo Pecci, Giuseppe Montaperto

Questions referred

‘Member States shall ensure that judicial and/or administrative procedures for the enforcement of obligations under this Directive are available to the workers' representatives and/or workers’

be interpreted as precluding a provision of national law, such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker can no longer challenge compliance with the procedure for informing and consulting,

—except on the ground that the employer has not complied with the conditions referred to in Article 66(1)(ii) of that law,

—and to the extent that the staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exists, those workers who should be informed and consulted, have notified the employer of objections, in respect of compliance with one or more of the conditions referred to in Article 66(1)(ii) within 30 days of the display referred to in the second subparagraph of Article 66(2),

—and where the worker made redundant has informed the employer, in a letter sent by recorded delivery [within 30 days from the date of redundancy] or from the date on which the redundancies acquired their status as collective redundancies, that he was challenging compliance with the procedure for informing and consulting and he was seeking to be reinstated in his post?

2.Assuming that Article 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies may be interpreted as allowing Member States to adopt provisions of national law such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker made redundant can no longer challenge compliance with the procedure for informing and consulting except on the ground that the employer has not fulfilled the conditions referred to in Article 66(1)(ii) of that law, and to the extent that staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exists, the workers who should be informed and consulted, have notified the employer of objections in respect of compliance with one or more of the conditions referred to in Article 66(1)(ii) within a period of 30 days from the display referred to in the second subparagraph of Article 66(2) and where the worker made redundant has informed the employer, in a letter sent by recorded delivery within 30 days from the date of redundancy or from the date on which the redundancies acquired their status as collective redundancies, that he was challenging compliance with the procedure for informing and consulting and he was seeking to be reinstated in his post,

is such a system compatible with the fundamental rights of the individual which form an integral part of the general principles of law — respect for which is ensured by the Community judicature — and more particularly with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms?

3. Can a national court seised of a dispute between two individuals — in the present case a worker and his former employer — disapply a provision of national law which is contrary to the provisions of a Community directive, such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in order to give effect to other provisions of national law which transpose, apparently correctly, a Community directive, such as the provisions contained in Collective Labour Agreement No 24 of 2 October 1975, made compulsory by Royal Decree of 21 January 1976, but whose effective application is frustrated by the provision of national law which is contrary to a Community directive, in the present case Article 67 of the Law of 13 February 1998;

4. Must Article 2 of Council Directive 98/59/EC of 20 July 1998, particularly paragraphs (1), (2) and (3) thereof, be interpreted as precluding a provision of national law, such as Article 66(1) of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that an employer who intends to satisfy his obligations in the context of collective redundancies is only bound to provide evidence that he has fulfilled the following conditions:

1.he must present to the Works Council or, where no such council exists, to the union delegation or, where no such delegation exists, to the workers, a written report in which he indicates his intention to proceed with collective redundancies;

2.he must be able to provide evidence, in respect of the intention to proceed with collective redundancies, that he has assembled the Works Council or, where no such council exists, that he has met with the union delegation or, where no such delegation exists, with the workers;

3.he must have allowed the staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exists, the workers, to raise questions regarding the collective redundancies contemplated and to make arguments or submit counter-proposals on that issue;

4.he must have examined those questions, arguments and counter-proposals referred to in (iii) and have replied to them.

(2) Must that same provision be interpreted as precluding a provision of national law, such as Article 67(2) of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker made redundant can challenge compliance with the procedure for informing and consulting only on the ground that the employer has not complied with the conditions referred to in Article 66(1)(ii) at issue in point 1 above?

(1) OJ 1998 L 225, p. 16.