C-91/81

JUDGMENT OF THE COURT 8 JUNE 1982 1

Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil its obligations — Directive relating to collective redundancies)

Case 91/81

Social policy — Approximation of Uws — Collective redundancies — Directive 75/129/EEC — Purpose — Powers of the Member States (EEC Treaty, Art. 117; Council Directive 75/129/EEC)

Directive 75/129, which the Council trative action relating to collective redun- considers corresponds to the need, stated dancies. The provisions of the directive in Article 117 of the Treaty, to promote are thus intended to serve to establish a improved working conditions and an common body of rules applicable in all improved standard of living for workers, the Member States, whilst leaving to the is intended to approximate the provisions Member States power to apply or laid down in this field by the Member introduce provisions which are more States by law, regulation or adminis- favourable to workers.

In Case 91/81

Advocate General: P. VerLoren van Themaat Registrar: P. Heim

gives the following

JUDGMENT

Facts

The facts of the case, the course of the practical arrangements and procedures procedure, the conclusions, submissions for collective redundancies and the and arguments of the parties may be measures designed to alleviate the summarized as follows: consequences of such redundancies for workers displayed differences capable of having a direct effect on the functioning I — Facts and written procedure of the common market. The Council Resolution of 21 January The provisions in force in the Member 1974 concerning a social action States of the Community concerning the programme (Official Journal C 13, p. I)

COMMISSION v ITALY

On 25 September 1979 the Commission That directive was adopted on 17 delivered the reasoned opinion provided February 1975 by the Council, as for in the first paragraph of Article 169 Directive 75/129/EEC, on the proposal of the Treaty and requested the Italian of the Commission and after receipt of Republic to enact within the period of the opinion of the European Parliament one month the measures needed to and of the Economic and Social implement the decision in question. By a Committee. letter of 5 November 1979 the Iulian authorities acknowledged receipt of the reasoned opinion. The directive defined the concept of "collective redundancies", determined their scope and laid down a consultation Shortly afterwards, by a letter of 23 procedure and a detailed procedure for November 1979, the Iulian authorities such redundancies. observed to the Commission "... it is not necessary in order to esublish whether the various Member Sutes have Article 6 (1) of the directive provides: fulfilled their obligations arising from the directive to make a purely formal finding as to the transposition into the internal "Member States shall bring into force system of the Sute concerned .of the laws, regulations and administrative provisions in accordance with those of provisions needed in order to comply the directive but instead it should be with this directive within two years determined whether the legal system of following its notification and shall the Member Sute concerned provides a forthwith inform the Commission comprehensive framework of guarantees thereof." suited to the atuinment of the practical objectives pursued by the directive in question" and concluded that they could "... show that the organization of The directive was notified to Italy on 19 industrial relations in Iuly as a February 1975 and the period for consequence of current practice and the complying with it expired on 19 means provided to that end by the February 1977, that is, almost five years legislature produces, albeit by means ago. partially differing from those provided for by the directive, results similar to those referred to by the Community The officers of the Commission drew the directive". attention of the Iulian authorities to the need to enact the prescribed measures in good time. Subsequently the Iulian authorities, by a communication of 25 March 1980, indicated that a bill (repeating the On 4 July 1978 the Commission provisions of Decree-Law No 64 of 11 requested the Italian Government to December 1979 which had expired as it

The Commission received no further information regarding the approval of the said bill. Ill — Submissions and argu- ments of the parties This application, which was dated 10 April 1981, was received at the Court Registry on 15 April 1981. The Iulian In its judgment the Commission Government stated by a telex message maintains that the case-law of the Court that it would refrain from submitting a in this matter is clear, as is established in rejoinder. particular by the judgments in Case 79/72 Commission v Italy [1973] ECR 667; Case 52/75 Commission v Italy Upon hearing the report of the Judge- [1976] ECR 277; Case 10/76 Rapporteur and the views of the Commission × Italy [1976] ECR 1359 and Advocate General, the Court decided to Joined Cases 42 and 43/80, Commission open the oral procedure without any v Italy[1980] ECR 3635 and 3643. preparatory inquiry. It nevertheless put a written question to the Commission concerning the factors missing in the In the second of those judgments the provisions in force in Italy which were Court of Justice amplified the reasoning alleged to constitute an incomplete previously set out in the first judgment implementation of the Council directive. and stated:

'The correa application of a directive is particularly important since the II — Conclusions of the parties implementing measures are left to the discretion of the Member States and would be ineffective if the desired aims The Commission claims that the Court are not achieved within the prescribed should: time-limits. Although the provisions of a directive are no less binding on the Member States to which they are "Declare that by not adopting within the addressed than the provisions of any prescribed period the measures needed in other rule of Community law, such an

Is does not appear to the Italian Government that the matter has been duly brought before the Court of Justice As that is made clear by the content of under Article 169 of the Treaty on the the communication of 25 March 1980 it basis of appropriate and substantial was simply considered appropriate to complaints of failure to fulfil an systematize and confirm a body of obligation. principles and rules concerning the conditions to be observed and the pro- cedures to be followed in the case of In fact its observations of 23 November collective redundancies without sub- 1979 following the communication of the suntial innovations in a body of law opinion of the Commission show that, as which guarantees by itself that the the said directive prescribes, the criteria indicated in the Community provisions in force in Italy are of such a directive will be applied in Iuly. nature as to prevent all collective redun- dancies unless the employer has begun consultations with the workers' rep- resentatives in order to keep the redun- The Commission replies that Article 41 of dancies within the limits of what is the new Iulian bill, like the previous strictly indispensable and to mitigate the decree law which expired, in fact consequences thereof and without the conuins the measures necessary for the ministry or competent agency being implemenution of the directive. The notified thereof beforehand by the failure to fulfil its obligations which is employer in order to take appropriate alleged against Iuly consists, however, in measures to resolve the problem. not having adopted within the prescribed period the provisions for the implemenution of the directive. The defendant's arguments concerning the The Commission, however, took the "appropriateness" of these provisions are view that there was no need for it to take contradicted by the course of events.

2 Directive 7 5 / 1 2 9 / E E C was adopted by the Council on the basis of Anicie 100 of the Treaty concerning the approximation of such provisions laid down by law, regulation or administrative action in Member Sutes as direcdy affect the establishment or functioning of the common market. The recitals in the preamble to the directive sute that it is important that greater protection should be afforded to workers in the event of collective redun- dancies whilst u k i n g into account the need for balanced economic and social development within the Community; that, despite increasing convergence, differences still remain between the provisions in force in the Member States of the Community concerning the practical arrangements and procedures for such redundancies and the measures designed to alleviate the consequences of redundancy for workers; that these differences may have a direct effect on the functioning of the common market; that the Council Resolution of 21 January 1974 makes provision for a directive on the approximation of Member Sutes' legislation on collective redundancies, and that it is therefore

COMMISSION v ITALY

necessary to promote that approximation within the meaning of Article 117 of the Treaty which is intended to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonization while the improvement is being maintained.

3 With this in view the directive determines the scope of the concept of "collective redundancies" whilst leaving the Member States to choose between the two criteria which it lays down.

7 Anicie 5 states that the directive is not to affect the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to workers.

JUDGMENT OF 8. 6. 1982 — CASE 91/81

8 The Italian Government has observed that, having regard to the whole of the Italian system of protection in the case of dismissals which is provided both by the wide scope given by Iulian legislation to the concept of individual redundancy, which is heavily weighted in favour of workers, to the specific provisions laid down by regulation relating to collective redundancies and by the provisions of collective agreements, that system creates conditions and establishes procedures making it possible to attain the objectives of the directive and indeed, in various respects, exceeding its requirements.

9 Nevertheless the Italian Government does not dispute that in certain sectors, especially in agriculture and commerce, Italian legislation is not as comprehensive as the provisions of the directive. It is furthermore common ground that Italian collective agreements do not require the notification in writing on the part of the employer which is provided for by the directive and that the Italian system does not provide, as is required by the directive, that the competent public authority must be notified of any collective redundancy and that the competent public authority is not compelled to intervene in order to seek solutions to the problems raised by the projected collective redundancies.

10 It is clear from the foregoing that the provisions in this field which are in force in Italy do not suffice to meet the totality of the requirements of the directive.

On those grounds,

THE COURT

hereby:

1. Declares that, by not adopting within the prescribed period the measures needed in order to comply with Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member Sutes relating to collective redundancies (Official Journal L 48, p. 29), the Italian Republic has failed to fulfil its obligations under the Treaty;

2. Orders the defendant to pay the costs.

Mertens de Wilmars Bosco Touffait Mackenzie Stuart O'Keeffe Koopmans Everling