Case C-201/15 Aget Iraklis: Tin Governments Command Volume Layoffs Past Times Employers? Economical Freedoms Vs Labour Rights

Menelaos Markakis

DPhil Candidate, University of Oxford; Researcher, Erasmus University of Rotterdam.

The world as well as scholarly attending given to the AGET Iraklis instance has never been commensurate alongside its legal as well as political significance. The AG opinion (which was analysed previously on this blog) was delivered before long earlier the U.K. plebiscite on UK’s membership of the European Union as well as largely flew nether the radar of virtually commentators. The Grand Chamber judgment inwards AGET Iraklis, which was handed downward on 21 Dec 2016, was delivered on the same 24-hour interval every bit the Court’s judgment on the retentiveness of information past times providers of electronic communication services (analysed here) as well as AG Sharpston’s opinion on the EU-Singapore Free Trade Agreement (commentary here). The ECJ Grand Chamber ruling inwards AGET Iraklis is even so rattling important, every bit it sheds calorie-free on the sometimes strained human relationship betwixt telephone commutation economical freedoms as well as collective labour rights.

Background to the case

As regards the factual as well as domestic police background to the case, it volition endure recalled that AGET Iraklis is inwards the occupation organization of cement production as well as has iii plants inwards Greece. The fellowship sought to reorganise its occupation organization as well as nigh downward ane of its iii plants. It farther sought ministerial authorisation to ship out collective redundancies, every bit required past times Greek law. More specifically, Greek Law No 1387/1983 provides that the Minister of Labour may reject to authorise around or all of the projected redundancies. The impugned police farther provides that applications to ship out collective redundancies are to endure considered on the footing of the next criteria: ‘the weather inwards the labour market’; ‘the province of affairs of the undertaking’; as well as ‘the interests of the national economy’. Authorisation is a status for the validity of the redundancy measures. In the instance of AGET, the Minister of Labour refused to furnish the requisite authorisation.

The fellowship sought to fence that the impugned national dominion was non compatible alongside Council Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies as well as Articles 49 (freedom of establishment) as well as 63 (free motility of capital) of the TFEU. The Greek Council of State asked the CJEU whether the contested dominion contravened the aforementioned rules as well as inwards instance the respond to the preceding enquiry was inwards the affirmative, whether it could possibly endure justified if at that spot were serious social reasons, such every bit an astute economical crisis as well as rattling high unemployment.

The compatibility of the impugned national police alongside Council Directive 98/59/EC

The Court ruled that ‘Directive 98/59 [could not], in principle, endure interpreted every bit precluding a national regime which [conferred] upon a world potency the powerfulness to preclude collective redundancies past times a reasoned determination adopted after the documents inwards the file [had] been examined as well as predetermined noun criteria [had] been taken into account’ (para 34). The Directive simply position out the physical care for to endure followed earlier such dismissals were carried out as well as explicitly authorised the Member States to apply or to innovate laws, regulations or administrative provisions which were to a greater extent than favourable to workers (paras 27-33). ‘However, the seat would, exceptionally, endure dissimilar if, inwards the calorie-free of its to a greater extent than detailed rules or of the particular means inwards which it [was] implemented past times the competent world authority, such a national regime were to termination inwards Articles 2 to four of Directive 98/59 existence deprived of their practical effect’ (para 35). ‘That would endure so inwards the instance of national legislation nether which collective redundancies require[d] the prior consent of a world potency if, on account, for example, of the criteria inwards the calorie-free of which that potency [was] called upon to receive got a determination or of the specific means inwards which it interpret[ed] as well as applie[d] those criteria, whatever actual possibility for the employer to effect such collective redundancies were, inwards practice, ruled out’ (para 38).

The provisions of Council Directive 98/59/EC were ‘clearly based on the premiss that collective redundancies [should] – in ane lawsuit the procedures established past times those provisions [had] been exhausted, including where the consultations [had] non led to an agreement – at to the lowest degree stay conceivable, albeit dependent area to the fulfilment of sure objective requirements position downward past times the applicable national legislation, if such requirements exist[ed]’ (para 41). However, AGET Iraklis argued that the Greek government had systematically opposed projected collective redundancies of which they had been notified (para 42). The Court of Justice left it to the referring courtroom to make upward one's heed whether, on occupation organization human relationship of the iii assessment criteria as well as of the specific means inwards which the competent world potency had applied those criteria, the Directive was deprived of its practical effect (para 43).

Freedom of establishment as well as Article sixteen of the Charter

The Court went on to examine the compatibility of the impugned national mensurate alongside Article 49 TFEU (freedom of establishment). It noted that such a national mensurate ‘constitute[d] a meaning interference inwards sure freedoms which economical operators mostly enjoy[ed]’ (para 55). It farther ruled that ‘[n]ational legislation such every bit that at number inwards the principal proceedings [was] thus such every bit to homecoming access to the Greek marketplace seat less attractive and, next access to that market, to cut down considerably, or fifty-fifty eliminate, the powerfulness of economical operators from other Member States who [had] chosen to prepare inwards a novel marketplace seat to conform afterward their action inwards that marketplace seat or to give it up, past times parting, to that end, alongside the workers previously taken on’ (para 56). As such, it was ‘liable to constitute a serious obstruction to the exercise of liberty of establishment inwards Greece’ (para 57). Indeed, the courtroom noted that the instance concerned an investment past times a fellowship from around other Member State (para 47). As the impugned national police derogated from a telephone commutation economical freedom, Article sixteen of the Charter (freedom to behaviour a business) was likewise engaged (paras 62-69).

The Court ruled that such a restriction powerfulness endure justified past times overriding requirements inwards Blue Planet interest, such every bit ‘the protection of workers’ or ‘the encouragement of work as well as recruitment’ (paras 73-75). It is noteworthy as well as indeed commendable that the Court digressed to the social policy objectives pursued past times the European Union Treaties, thereby discussing Articles 3(3) TEU, 151 TFEU, 147 TFEU as well as ix TFEU at around length (paras 76-78). It farther noted that the Member States had ‘a wide discretion when choosing the measures capable of achieving the aims of their social policy’ (para 81).

Next, the Court held that ‘the mere fact that a Member State provide[d], inwards its national legislation, that projected collective redundancies [should], prior to whatever implementation, endure notified to a national authority, which [was] endowed alongside powers of review enabling it, inwards sure circumstances, to oppose the projected redundancies on grounds relating to the protection of workers as well as of employment, [could not] endure considered reverse to liberty of establishment every bit guaranteed past times Article 49 TFEU or the liberty to behaviour a occupation organization enshrined inwards Article 16 of the Charter’ (para 83). The liberty to behaviour a occupation organization was non absolute as well as should endure viewed inwards relation to its social component (para 85). The wording of Article sixteen of the Charter resembled, said the Court, that of sure provisions found inwards Title IV of the Charter (Solidarity), as well as the liberty to behaviour a occupation organization powerfulness endure dependent area to a wide arrive at of interventions on the component of world government that powerfulness bound the exercise of economical action inwards Blue Planet involvement (para 86). Alemo-Herron (in which the Court ruled against the UK’s application of the Directive on workers’ acquired rights) was rapidly discussed as well as brushed aside (para 87). Influenza A virus subtype H5N1 regime which ‘[did] non have, inwards whatever way, the outcome of only excluding, past times its rattling nature, the powerfulness of undertakings to effect collective redundancies, since it [was] designed solely to impose a framework on that ability’ did non affect, held the Court, the essence of the liberty to behaviour a occupation organization (para 88).

The Court farther noted that, according to Article 52(1) of the European Union Charter, ‘limitations may endure made only if they are necessary as well as really encounter objectives of full general involvement recognised past times the Union or the demand to protect the rights as well as freedoms of others’, such every bit the Article thirty Charter correct to protection against unjustified dismissal, inwards accordance alongside Union police as well as national laws as well as practices (para 89). ‘Thus, a national regime imposing a framework … [should] seek, inwards this sensitive area, to reconcile as well as to strike a fair residuum betwixt the interests connected alongside the protection of workers as well as of employment, inwards particular protection against unjustified dismissal as well as against the consequences of collective dismissals for workers, as well as those relating to liberty of establishment as well as the liberty of economical operators to behaviour a occupation organization enshrined inwards Articles 49 TFEU as well as Article 16 of the Charter’ (para 90). Such a machinery ‘[might] – inwards the absence, especially, of whatever rules of European Union police that [were] intended to preclude such redundancies as well as [went] beyond the fields of information as well as consultation covered past times Directive 98/59 – bear witness to endure a machinery of the sort that [could] contribute to enhancing the degree of actual protection of workers as well as of their employment, past times laying downward noun rules governing the adoption of such economical as well as commercial decisions past times undertakings’ (para 92). ‘Such a machinery [was] thus appropriate for ensuring the attainment of the objectives inwards Blue Planet involvement thereby pursued’ (para 92). ‘Furthermore, inwards the calorie-free of the discretion available to the Member States when pursuing their social policy, they [were], inwards principle, justified inwards considering the existence of a machinery imposing such a framework to endure necessary inwards social club to ensure an enhanced degree of protection of workers as well as of their employment’ (para 93). ‘In particular, it [was] non apparent that measures of a less restrictive form would ensure attainment of the objectives thereby pursued every bit effectively every bit the establishment of such a framework’ (para 93). As such, the Court concluded that such a regime was in principle capable of satisfying the requirements stemming from the regulation of proportionality as well as was thus compatible alongside Articles 49 TFEU as well as sixteen ECFR (para 94).

However, every bit regards the specific characteristics of the impugned national measure, the criteria applied past times the competent national potency when deciding whether to oppose the projected redundancies (viz., ‘the weather inwards the labour market’ as well as ‘the province of affairs of the undertaking’) were ‘formulated inwards rattling full general as well as imprecise terms’ (para 99). ‘…[I]n the absence of details of the particular circumstances inwards which the powerfulness inwards enquiry [might] endure exercised, the employers concerned [did] non know inwards what specific objective circumstances that powerfulness [might] endure applied, every bit the situations allowing its exercise [were] potentially numerous, undetermined as well as indeterminable as well as [left] the potency concerned a wide discretion that [was] hard to review’ (para 100). ‘Such criteria which [were] non precise as well as [were] non thus founded on objective, verifiable weather [went] beyond what [was] necessary inwards social club to arrive at the objectives stated as well as [could not] thus satisfy the requirements of the regulation of proportionality’ (para 100). What is more, ‘the legislation concerned likewise fail[ed] to furnish the national courts alongside criteria that [were] sufficiently precise to enable them to review the means inwards which the administrative potency exercise[d] its discretion’ (para 101). Consequently, the impugned regime was incompatible, because of its ‘particular detailed rules’, alongside the requirements flowing from Articles 49 TFEU as well as sixteen ECFR (paras 102-04).

The impugned mensurate could non endure saved, said the Court, if at that spot were serious social reasons, such every bit an astute economical crisis as well as rattling high unemployment. As regards Council Directive 98/59/EC, the Member State concerned was non allowed to deprive the provisions of the Directive of their practical effect, ‘as the directive [did] non comprise a safeguard clause for the operate of authorising past times means of exception a derogation, inwards the lawsuit of such a national context, from the harmonising provisions which it [laid] down’ (para 106). Nor did the European Union Treaties as well as related instance police furnish for a derogation inwards such cases (para 107). As such, the peculiar context of the Greek crisis did non receive got a bearing, said the Court, on the finding of incompatibility of the impugned national police alongside Articles 49 TFEU as well as sixteen ECFR (para 108).

Analysis

This commentary should endure read together alongside the previous post on the AG opinion. The analysis hither volition only encompass those aspects of the instance which were non already discussed inwards the previous post.

This judgment was expected alongside keen involvement from the Greek Government as well as the Troika (now the ‘Quadriga’), every bit the 2d review of the ongoing fiscal assistance programme is likewise focusing on labour marketplace seat issues. More specifically, the Greek Government has come upward nether line per unit of measurement area to strip the Minister of Labour of its powerfulness to command majority layoffs past times employers or at the rattling to the lowest degree lax the relevant requirements for such dismissals. What are so the effects of the preliminary ruling inwards AGET Iraklis inwards this respect?

We receive got seen that the CJEU ruled that Council Directive 98/59/EC powerfulness non necessarily endure deprived of its practical effect past times the impugned national measure. The referring courtroom could thus ‘save’ this mensurate past times belongings that the criteria every bit position out inwards the impugned police as well as applied past times the Minister of Labour did non deprive the Directive of its practical effect. This would of course of pedagogy depend on whether it was indeed the instance that the Greek government systematically opposed collective redundancies (as argued past times AGET Iraklis) or not. It remains to endure seen whether the Greek Council of State volition receive got the see that the impugned national police is compatible alongside the Directive. To endure sure, this bespeak powerfulness endure somewhat moot past times then, for the reasons explained below.

As regards the compatibility of the impugned national police alongside Articles 49 TFEU as well as sixteen ECFR, the province of affairs is far to a greater extent than complicated for the Greek authorities. The Court of Justice is essentially bespeak the Greek government to devise a novel machinery whereby the criteria applied past times the national government would non endure formulated ‘in rattling full general as well as imprecise terms’. These criteria would receive got to endure based on objective weather the fulfilment of which could endure reviewed past times the courts. The Court did non offering to a greater extent than guidance on how the novel machinery should expression like, presumably seeking to honor the wide margin of appreciation casually granted to national government inwards this sensitive area. As AG Wahl had argued inwards his opinion, ‘[a]n alternative powerfulness receive got consisted inwards listing the types of dismissals considered to endure unjustified, every bit inwards the instance of the listing which appears inwards paragraph 3 of the department of the Appendix to the Social Charter relating to Article 24 thereof’ (para 71). That would indeed endure an option.

Be that every bit it may, it should non escape our attending that the novel police would endure drafted past times the Greek government inwards cooperation alongside the European Commission, the ECB, the IMF, as well as the ESM. As such, the wide margin of appreciation inwards regulation enjoyed past times the Greek government would de facto endure diminished. This is non a critique of the Court’s reasoning as well as should non endure seen inwards this light. It is rather an elbow grease to select a dose of realism to the debate. Absent an authoritative interpretation past times the CJEU every bit to how this novel machinery should expression like, the Greek government are probable to succumb to the line per unit of measurement area exerted past times the country’s lenders to make a to a greater extent than ‘flexible’ labour market. This is because, as argued elsewhere, the Troika possesses a much to a greater extent than credible ‘enforcement mechanism’, insofar every bit the release of farther loan instalments is made conditional upon successful completion of the review of the programme.

In calorie-free of the above, at that spot are 2 ways of looking at the judgment inwards AGET Iraklis, depending on one’s perspective. The Greek Government would presumably seek to fence inwards its negotiations alongside the Troika that the impugned national police is non inwards regulation incompatible alongside European Union law, as well as that European Union police does non require that such a police endure disapplied. Fine-tuning the relevant provisions inwards line alongside the European Union acquis would brand do. On their part, the Troika would in all likelihood fence that European Union police does non require that such a protective regime for workers exist, as well as that thus it could possibly endure abolished. Given that a province which is seemingly constantly on the brink of insolvency does non receive got equal bargaining powerfulness every bit its lenders, it would non endure surprising if the Greek government came nether tremendous line per unit of measurement area to relax the requirements for carrying out collective redundancies. This is to a greater extent than particularly so because the successful completion of the 2d review of the programme is linked to measures of debt relief for Hellenic Republic every bit good every bit participation inwards the ECB’s quantitative easing programme.

This was virtually certainly non a Viking/Laval minute for the Court, every bit it rattling carefully examined the merits as well as demerits of the opposing arguments as well as handed downward a rattling measured judgment. The Court sure cannot endure expected to broker an understanding betwixt Hellenic Republic as well as the institutions, every bit its proper role is to translate as well as dominion on the validity of European Union law. The ball is right away firmly dorsum alongside the referring courtroom as well as the negotiating parties, the latter existence responsible to come upward up alongside a solution that would unlock much-needed funding for the Greek economic scheme spell existence respectful of the interests of workers.

Barnard & Peers: chapter 9, chapter 20

Photo: AGET Heracles cement factory

Photo credit: Greekreporter.com

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