C-382/92

* Original language: Dutch. 1 — OJ 1977 L 61, p. 26. 2 — 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). — the reasons for the transfer,

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— the legal, economic and social implica­ 4. Member States may limit the obligations tions of the transfer for the employees, laid down in paragraphs 1, 2 and 3 to under­ takings or businesses which, in respect of the number of employees, fulfil the conditions for the election or designation of a collegiate body representing the employees.

— measures envisaged in relation to the employees.

5. Member States may provide that where there are no representatives of the employees in an undertaking or business, the employees The transferor must give such information to concerned must be informed in advance the representatives of his employees in good when a transfer within the meaning of time before the transfer is carried out. Article 1(1) is about to take place.'

'1 . Employers shall notify the competent public authority in writing of all projected collective redundancies.

'1 . Where an employer is contemplating col­ lective redundancies, he shall begin consulta­ tions with the workers' representatives with a view to reaching an agreement.

2. Employers shall forward to the workers' 2. These consultations shall, at least, cover representatives a copy of the notification ways and means of avoiding collective provided for in paragraph 1. redundancies or reducing the number of workers affected, and mitigating the conse­ quences.

The workers' representatives may send any comments they may have to the competent public authority.' 3. To enable the workers' representatives to make constructive proposals the employer shall supply them with all relevant informa­ tion and shall in any event give in writing the reasons for the redundancies, the number of workers to be made redundant, the number Article 4 provides that: of workers normally employed and the period over which the redundancies are to be effected.

'1 . Projected collective redundancies notified to the competent public authority shall take effect not earlier than 30 days after the noti­ fication referred to in Article 3(1), without ...' prejudice to any provisions governing indi-

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4. Directive 77/187 was implemented in the 2. The period provided for in paragraph 1 United Kingdom by way of the Transfer of shall be used by the competent public Undertakings (Protection of Employment) authority to seek solutions in the problems 3 Regulations 1981 ('the 1981 Regulations'). raised by the projected collective redundan­ The provisions which implemented Directive cies. 75/129 are to be found in the Employment Protection Act 1975 ('the Employment Pro­ 4 tection Act'). According to the Commis­ sion, the implementation of each directive is defective in a number of different respects. In accordance with Article 169 of the EC 3. ...'. Treaty, the Commission instituted proceed­ ings against the United Kingdom for failure to fulfil its obligations, beginning with a let­ ter of notice dated 27 November 1989. While the administrative procedure initially related to both directives together, it subsequently According to Article 1(1)(b) of Direc­ followed separate but parallel courses: in tive 75/129, the term 'workers' representa­ each case the Commission delivered a rea­ tives' is to be understood as meaning 'the soned opinion on 26 March 1991 and ulti­ workers' representatives provided for by the mately brought two separate sets of proceed­ laws or practices of the Member States'. It ings before the Court on 14 October 1992. also appears from Article 1(1)(a) that, for the In each case, however, the first head of com­ directive to apply, at least 20 workers must plaint is the same, relating as it does to the be employed in the undertaking or establish­ designation of workers' representatives, ment affected by the collective redundancies. while there are four other heads of complaint in Case C-382/92 and three others in Case C-383/92. In what follows, I shall examine the one head of complaint common to both cases before going on to examine the remain­ ing heads of complaint in Case C-382/92 and In contrast to the rules contained in Art­ in Case C-383/92. icle 6(4) and (5) of Directive 77/187, Direc­ tive 75/129 does not provide any similar opportunities for Member States to depart from the provisions laid down. Article 5, in 3 — S. I. 1981 No 1794. the same way as Article 7 of Direc­ 4 — 1975 c.71.

7. The Commission takes the view that the 6. There is no dispute between the parties as present rules largely deprive Article 6 of to the present position under United King­ Directive 77/187 and Articles 2 and 3 of dom law. Regulation 10 of the 1981 Regula­ Directive 75/129 of their effectiveness. By tions, which implements Article 6 of Direc­ making recognition of representatives depen­ tive 77/187, and sections 99 and 100(1) of the dent on the will of employers, the obliga­ Employment Protection Act, which imple­ tions set out in those articles are under­ ment Articles 2 and 3 of Directive 75/129, mined. The Commission accepts that each limit the obligations to inform and consult to directive leaves it up to the Member States to 5 representatives of trade unions recognized define the term 'workers' representatives' by employers. Thus, only representatives of in accordance with their laws or practices trade unions which have been voluntarily (see points 2 and 3 above). There is, however, recognized can be treated as workers' repre­ a huge difference between leaving Member sentatives for the purposes of the directives. States free to provide for workers' represen­ At the hearing, counsel for the United King­ tatives in accordance with their own legal dom confirmed that the United Kingdom legislation did not impose any alternative obligation on an employer, in the absence of 5 — Translator's note: it should be noted that the English- voluntary recognition, to meet the require­ language version of Directive 75/129 uses the expression 'workers' representatives', while Directive 77/187 uses the ments under the directives as to information expression 'representatives of the employees'. Except in or consultation, not even if there is within direct citations from Directive 77/187, the former expression is used in this translation for the sake of consistency.

The Commission also argues that no infer­ ence can be drawn from either Article 2(c) of Directive 77/187 or Article 1(1)(b) of Direc­ tive 75/129 to the effect that worker repre­ sentation can depend on the consent of employers. While Member States may leave The United Kingdom draws a parallel in this the implementation of the social-policy connection with the Court's decision in the objectives of both directives to management Danmols case. One of the issues in that case and labour, that does not discharge them happened to be the interpretation of the term 'employee' in Directive 77/187. The Court took the view that it was clear from the pro­ 6 — At the time when Directive 75/129 was adopted, the visions of the directive that it was 'intended Employment Protection Act 1975 had not yet become law, although the Industrial Relations Act had been repealed. The to achieve only partial harmonization ... It is 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 7 — Case 61/81 Commission v United Kingdom [1982] based on the premiss that every Member State would have a ECR 2601. mechanism for the designation of workers' representatives. 8 — Case 235/84 Commission v Italy [1986] ECR 2291.

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10. In my opinion, this is most apparent with regard to Directive 75/129, for which reason we shall first consider its objective 9. We are thus faced with two conflicting and structure. The essential objective of interpretations of the content and scope of Directive 75/129 is to guarantee to workers Article 6 of Directive 77/187 and Articles 2 within the Community, by way of Commu- and 3 of Directive 75/129. In the view of the Commission, those provisions impose on employers in every instance an obligation to 10 — The fact that worker representation within undertakings is inform and consult. If representatives are not politically a very sensitive issue on which the views of the designated on a voluntary basis, the Member Member States differ is apparent from, inter alia, the diffi­ culties which have arisen in connection with discussions on State in question must then provide appro­ worker participation in the context of the proposal dating from 1972 for a Fifth Directive concerning the structure of priate rules under which they can be desig­ public limited companies and the powers and obligations of nated. According to the United Kingdom, on their organs (OJ 1972 C 131, p . 49; for the amended pro­ posal, see OJ 1983 C 240, p . 2; see also the second amend­ the other hand, those provisions impose an ment 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 obligation to inform and consult workers' Statute for a European company (OJ 1989 C 263, p. 41; for the amended proposal, see OJ 1991 C 176, p . 1) and the representatives only if national law and prac­ complementary proposal for a directive with regard to the tice provide for representatives. 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 9 — Judgment in Case 105/84 Danmols Inventar [1985] ECR 2639, paragraphs 26 and 28. OJ 1991 C 336, p . 11).

nity rules establishing ordered procedures in all the Member States, whilst leaving to for consultation and redundancies, that their the Member States power to apply or intro­ representatives should have the right to put duce provisions which are more favourable 12 their views in a situation, that of collective to workers'. redundancies, which can undoubtedly be regarded as a crisis situation so far as the workers are concerned. With regard to such a situation, Article 2, which is the sole article in Section II of the directive, requires an employer to begin consultations with work­ ers' representatives with a view to reaching an agreement and to supply them with all information necessary to enable them to make constructive proposals. Section III of the directive sets out a procedure for collec­ tive redundancies which is designed to 11. Although there are obvious differences involve the authorities in the search for a between Directive 75/129 and Direc­ solution acceptable to the workers. tive 77/187 with regard to objectives, struc­ ture and wording, it is clear that Direc­ tive 77/187 also attaches particular importance to information and consultation of workers' representatives in the event of the transfer of the undertaking or business in which they are employed. In such a situa­ tion, which indeed often leads to individual or collective redundancies, workers also deserve particular protection. Other than in The objective and structure of the directive cases of collective redundancy, however, in thus make clear the fundamental importance which they would not be appropriate, Direc­ which it attaches to information and consul­ tive 77/187 provides in the first place for tation of workers in what is for them the dif­ 11 provisions of substantive law, laid down in ficult situation of collective redundancy. Articles 3, 4 and 5 and set out in Section II The wording of the directive also makes that of the directive. Those provisions specify clear. Apart from the provision in Art­ that workers are to retain their rights, that icle 1(1)(a) restricting the scope of the direc­ their employment should not be imperilled tive to establishments employing at least 20 and that the position of existing workers' workers, the directive contains no exceptions representatives should not be affected. Provi­ under which Member States might be en­ sions of procedural law are however to be titled to circumvent the obligation to inform found in Section III of the directive, consist­ and consult workers' representatives. In the ing of the abovementioned Article 6, which Court's own words, the provisions of Direc­ lay great emphasis on prior information and tive 75/129 are thus 'intended to serve to consultation to enable the transfer of the establish a common body of rules applicable undertaking or business to take place in con­ ditions acceptable to the workers employed.

The importance which Directive 77/187 workers than that provided under the direc­ attaches to prior information and consulta­ tive in question. tion with workers' representatives is also evi­ dent from the wording of the directive. Admittedly the directive, in contrast to Directive 75/129, allows the Member States in specific areas to depart from the obliga­ tion of information and consultation. Thus, the Member States may, under Article 6(4) of Directive 77/187, exclude information and consultation in undertakings or businesses in 12. On the basis of the foregoing, I cannot which the workers are not represented by a accept the United Kingdom's argument that collegiate body, essentially a works council. national rules may be regarded as compatible At the same time, they are empowered under with the fundamental objectives of the two Article 6(5), in undertakings or businesses directives in question if they render the pro­ where there are no workers' representatives vision of information to, and consultation of, at all, to require that the workers themselves workers' representatives in matters of such be informed. The fact that these possibilities import to workers as collective redundancies of derogation do not feature in the directive and transfers of undertakings entirely depen­ on collective redundancies does not, how­ dent on the free choice of individual employ­ ever, point to a major difference regarding ers. As the Commission has pointed out, the legal protection available to workers. The support for this view may be found in the first possibility of derogation is comparable two decisions which it has cited. The first of to the restriction in Article 1 of Direc­ those decisions, in Case 61/81, concerned the tive 75/129 on that directive's scope in failure of the United Kingdom to comply 15 favour of small undertakings ('in respect of with Directive 75/117/EEC, which is 13 the number of employees'). The second designed to give effect to the principle set possibility of derogation seems to me to be out in Article 119 of the EC Treaty that men no more than a special application of the and women should receive equal pay for possibility which each directive offers to equal work. That directive requires Member Member States to confer wider protection on States to eliminate all discrimination on grounds of sex with regard to the same work or work to which equal value is attached. The only way in the United Kingdom in which it was possible to determine whether two work functions were of equal value was

by means of a job classification system same value as other work, after obtaining which could be introduced only with the such information as may be required.' employer's consent. Workers in the United Kingdom were for that reason unable to claim that their work was of equal value to comparable work if their employer refused to introduce a classification system. The Court took the view that such a situation was contrary to Directive 75/117. On the basis of the objective and system of the directive, it held that a worker who thought that his work had the same value as other It cannot be denied that there are, as the work had to be entitled to assert his rights United Kingdom has pointed out, important 'before an appropriate authority' if the differences between Directive 75/117 and the employer refused to introduce a job classifi­ directives here in issue with regard to objec­ cation system, as the absence of such entitle­ tives, scheme and wording, and that the ment would 'prevent the aims of the direc­ requirement of judicial supervision is central tive from being achieved'. 16 to that judgment. That judgment is none the less based on the third paragraph of Art­ icle 189 of the Treaty, which, while leaving Member States to choose the ways and means, obliges them to adopt 'in their national legal systems, all the measures nec­ essary to ensure that the directive is fully The Court rejected the argument that practi­ effective, in accordance with the objective 18 cal difficulties would arise if the system of which it pursues'. In the present case, also, employer approval in the United Kingdom the Member States are required to bring were to be abandoned and the criterion of about in full the result prescribed in the work of equal value were to be applied by directives — the provision of information national courts: regarded as essential and the consultation of workers' representatives — without its being permissible to make that result entirely dependent on the will of employers.

'it is true that the Member States may leave the implementation of the social policy 14. That leads me to the following conclu­ objectives pursued by a directive in this area sion. By failing to provide laws, regulations in the first instance to management and and administrative provisions designed to labour. That possibility does not, however, bring about the result stipulated in Direc­ discharge them from the obligation of ensur­ tives 75/129 and 77/187, that is to say, the ing that all workers in the Community are provision of information to and consultation afforded the full protection provided for in of workers' representatives in the event (sub­ the directive. The State guarantee must cover ject to limited exceptions) of collective all cases where effective protection is not redundancies or transfers of undertakings or ensured by other means.' 9 1 businesses, the United Kingdom has failed properly to fulfil its obligations under Com­ munity law.

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lated in the directives. Thus, there can cer­ of the Commission's reasoned opinion that tainly be no question of an obligation to the complaint related to the absence in introduce a general system of worker repre­ United Kingdom law 'of any legal provision sentation going beyond the scope of the for the designation of employee representa­ directives. With regard to the matters and tives for bargaining and other purposes situations mentioned in the directives, the where this does not occur voluntarily in Member States would even in my opinion be practice'. That strikes me as being a particu­ doing enough if they were to provide for an larly broad definition which makes it clear ad hoc system, by which I mean an arrange­ that the Commission was prepared to accept ment enabling the affected workers, or a any rules under which the role of the work­ majority of them, to designate ad hoc repre­ ers' representatives, as provided for in the sentatives in a particular case in which the relevant directives, was not made totally provision of information and/or consultation dependent on a free choice of the employer. are required under the directives (even if the The complaint must for that reason be application of such a system might give rise upheld. to numerous difficulties). The essential point, however, and I will repeat it, is that the des­ ignation of workers' representatives must not depend exclusively on the free choice or recognition of the employer.

Other heads of complaint in Case C-382/92

ownership of the undertaking is trans­ United Kingdom points out that decisions of ferred'. the House of Lords are binding on the lower courts.

In fact, the relevant national provision which the The United Kingdom disputes the conten House of Lords, pursuant to Community tion that its national law incorrectly imple law, stated had to be interpreted in accor 26 ments the directive on this particular point dance with the case-law of the Court and claims that the Commission has in any seems to me not in itself to be contrary to event provided insufficient evidence to sup the directive. As counsel for the United port its argument. According to Regula Kingdom pointed out at the hearing, without tion 3(2) of the 1981 Regulations, they apply being contradicted on this point by the 'whether the transfer is effected by sale or by Commission's representative, the expression some other disposition or by operation of 'by some other disposition' in Regula law'. In the view of the United Kingdom, tion 3(2) enables the directive to be correctly national case-law on this point is consistent applied. with the case-law of the Court, as is apparent from a decision of the House of Lords, in which it was stated that the Regulations, 26 — In its judgment in Case 235/84, which has already been including Regulation 3, had to be interpreted mentioned several times and is cited in footnote 8, the Court held, admittedly, at paragraph 14 that the answer to in accordance with the Court of Justice's the question whether a directive has been properly imple

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21. In its reply, the Commission states that it agrees with the United Kingdom that the directive, on the ground that it is based on 20. In its defence, the United Kingdom Article 100 of the Treaty, is concerned only points out that Directive 77/187 was adopted with economic activities. That, however, on the basis of Article 100 of the EC Treaty, does not mean that a non-profit-making which authorizes the Community legislature body must be excluded from the scope of the to issue directives 'for the approximation of directive, so long as it is engaged in eco-

27 — Judgment in Case C-29/91 Dr Sophie Redmond Stichting 28 — Judgment in Joined Cases C-159/91 and C-160/91 Poucet [1992] ECR I-3189. and Pistre [1993] ECR I-637.

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In order for an activity to be described as 22. Let me first of all point out that the economic, it is thus evident that it must be United Kingdom amended its legislation in performed for remuneration. It is clear from 1993. The exclusion of 'any undertaking or the Court's judgment in Lawrie-Blum that part of an undertaking which is not in the the decisive importance does not attach to nature of a commercial venture' in the defi­ the sector within which the activity is per­ nition of 'undertaking' in Regulation 2(1) of formed or even the legal provisions under the 1981 Regulations was thereby 29 which it takes place. In Lawrie-Blum, the removed. That fact does not in itself have Court ruled inter alia as follows: any bearing on the questions for consider­ ation here since the case-law on Article 169 proceedings is to the effect that the question whether a Member State has failed to fulfil obligations must be examined on the basis of the position in which the Member State 'All that is required for the application of found itself at the end of the period laid Article 48 is that the activity should be in the down in the reasoned opinion. 30 nature of work carried out for remuneration, irrespective of the sphere in which it is carried out (see the judgment of 12 Decem-

29 — This was done by way of section 26 of the Trade Union Reform and Employment Rights Act 1993. 30 — See, inter alia, the judgment in Case C-200/88 Commission 31 — See the judgment in Case 13/76 Donà [1976] ECR 1333, v Greece [1990] ECR I-4299, paragraph 13, and the judg­ paragraph 12. The quotation is taken from paragraph 10 of ment in Case C-347/88 Commission v Greece [19901 the judgment in Case 196/87 Steymann[1988] ECR 6159, ECR I-4747, paragraph 40. which refers expressly to the judgment in Donà.

The judgment in Steymann, in particular, It is in this light that the term 'undertaking' makes it clear that the element of remunera­ within the meaning of Directive 77/187 must tion, in the sense of economic consideration, be understood. In the absence of a specific does not necessarily presuppose the existence definition in the directive itself, that term must cover all undertakings which pursue an economic activity within the meaning of the 32 — Judgment in Case 66/85 Lawrie-Blum [1986] ECR 2121, EC Treaty and certainly not only profit- paragraph 20 (emphasis added). making undertakings (although this will be 33 — 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. 34 — Judgment in Case 263/86 Humbel [1988] ECR 5365, para­ graph 17; recently confirmed at paragraph 15 of the Court's 35 — Judgment in Case 196/87 Steymann, cited above in foot­ judgment in Case C-109/92 Wirth [1993] ECR I-6447. note 31, paragraph 12.

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25. That cannot be affected by the argu­ ments which the United Kingdom believes it can derive from Articles 58 and 66 of the EC treaty and from the Court's case-law on competition matters. With regard to the first 'Sickness insurance funds or bodies responsi­ argument: it is correct that the second para­ ble for the management of the public social graph of Article 58 of the EC Treaty security service perform a function which is excludes companies or firms 'which are non­ exclusively social in character. That function profit-making' from the freedom of estab­ is based on the principle of national solidar­ lishment (and, by virtue of Article 66, from ity and has no profit-making objective. Ben­ the freedom to provide services). However, it efits provided are statutory benefits and are strikes me as going too far to use that as the independent of the amount of contributions basis for an argument restricting the scope of paid. Directive 77/187. That directive is in no way concerned with the freedom of establishment or freedom to provide services within the Community context but rather constitutes, in the same way as Directive 75/129, a part of the Community's social action pro­ It follows that this activity is not an eco­ 38 gramme. nomic activity and that the bodies respons­ ible for its performance are not undertakings within the meaning of Articles 85 and 86 of 39 the Treaty.'

26. So far as concerns the United Kingdom's argument based on the Court's case-law

However, it in no way follows from that 36 — Cited in footnote 27. decision that the Court regards the pursuit 37 — Judgment in Case C-209/9I Watson Rask [1992] ECR I- 5755. 38 — 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). 39 — Judgment in Poucet and Pistre, paragraphs 18 and 19.

of profit as the decisive criterion for the term expression 'undertaking', the United King 'undertaking' as used in competition law. dom has failed in that regard to fulfil its obli Indeed, the contrary is the case, since the gations under the Treaty and the Commis Court expressly confirmed in its judgment in sion's application must be upheld. Poucet and Pistre the broad definition of that concept developed in its judgment in Höfner and Eher as encompassing 'every entity engaged in an economic activity, regardless of the legal status of the entity and the way in 40 Fourth head of complaint: consultation with a which it is financed'. Admittedly, the judg view to agreement on the measures to be ment in Poucet and Pistre makes clear that adopted at the time of transfer there are limits to the Community concept of 'economic activities'. It does not cover the

27. The conclusion which I draw from the lation 10(5) or (6) of the 1981 Regulations. foregoing is that the scope of Direc tive 77/187 covers all undertakings which pursue an economic activity within the meaning of Article 2 of the EC Treaty and not only those which operate with a view to making profit. As the version of Regulation The United Kingdom accepts that the 1981 2(1) of the 1981 Regulations, prior to Regulations incorrectly implement the direc the 1993 legislative amendment, included tive in this regard and points out that the only the latter undertakings within the legislation in issue was recently brought into

above. It there held that the characteristic of remuneration (and consequently the quality of the provision of services Commission enjoys a discretionary power in within the meaning of Article 60 of the EC Treaty) was absent in the case of courses provided under the national deciding whether to institute proceedings for education system in view of the fact that the State, in estab a declaration that a Member State has failed lishing and maintaining such a system, was fulfilling its duties towards its own population in the social,cultural and to fulfil obligations and that it is not for the educational fields (paragraph 18 of the judgment in Hum- bel, cited above in footnote 34). Court to decide whether that discretion was

'when a Community regulation does not provide any specific penalty in case of breach 31. The United Kingdom accepts that this but refers on this matter to national provi­ second element, namely the set-off against sions, the Member States retain a discretion other forms of compensation, has the result as to the choice of penalties. However, under that the sanction is insufficiently effective Article 5 of the EEC Treaty, which requires and deterrent and that the United Kingdom the Member States to take all measures nec­ has thereby failed to fulfil its obligations essary to guarantee the application and effec­ under the Treaty. The United Kingdom leg­ tiveness of Community law, they must islation was for that reason recently amended ensure that infringements of a Community accordingly. On the other hand, the United regulation are penalized under conditions, Kingdom argues that the first element, both procedural and substantive, which are namely the limitation to the equivalent of analogous to those applicable to infringe­ two weeks' pay, is not of such a nature as to ments of national law of a similar nature and render the sanction insufficiently effective or importance and which, in any event, make deterrent. That notwithstanding, the same the penalty effective, proportionate and dis­ 44 recent legislative amendment did raise the suasive.' ceiling to four weeks. This last amendment, according to the United Kingdom, is intended as a demonstration of loyal cooper­ 43 — Judgment in Case C-200/88 Commission v Greece, cited ation with the Commission and not as an above in footnote 30, paragraph 9. acknowledgement of any previous shortcom­ 44 — Judgment in Case C-7/90 Vandevenne and Others [1991] ECR I-4371, paragraph 11. ing.

Second head of complaint: limitation of the scope Third head of complaint: purpose and object of consultation

33. For the purposes of Directive 75/129, Article 1(1)(a) thereof provides that "collec­ 34. Article 2(1) of Directive 75/129 requires tive redundancies" means dismissals effected an employer contemplating collective redun­ by an employer for one or more reasons dancies to consult with workers' representa- not related to the individual workers con­ cerned ...'. In contrast, however, sections 99 and 100 of the Employment Protection Act 1975, which implement the directive in 45 — 1978 c. 44.

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Conclusion

36. On the basis of the foregoing, I propose that the Court should rule in Case C-382/92 that the United Kingdom has failed on the following grounds to fulfil its obligations under Article 5 of the EC Treaty and Council Directive 77 / 187 / EEC of 14 February 1977 on the approximation of the laws of the Member States relating to

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the safeguarding of employees' rights in the event of transfers of undertakings, busi­ nesses or parts of businesses:

— its failure to provide measures enabling workers' representatives to be desig­ nated with a view to the application of the directive in cases where an employer is not prepared voluntarily to recognize such representatives (first complaint);

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employer is not prepared voluntarily to recognize such representatives (first complaint);

— its limitation of the scope of the legislation designed to implement the direc­ tive to a more restricted definition of collective redundancies than that envis­ aged by the directive (second complaint);

— its failure to require an employer who is contemplating collective redundan­ cies and is required to consult workers' representatives to do so with a view to reaching an agreement and to require such consultation at least to cover the matters specified in the directive (third complaint); and

— its failure to provide for sufficiently effective and deterrent sanctions in the case of failure by an employer to consult workers' representatives as required by the directive (fourth complaint).