Case C-405/08
Ingeniørforeningen i Danmark, acting on behalf of Bertram Holst
v
Dansk Arbejdsgiverforening, acting on behalf of Babcock & Wilcox Vølund ApS
(Reference for a preliminary ruling from the Vestre Landsret)
(Social policy – Informing and consulting employees – Directive 2002/14/EC – Transposition of Directive 2002/14/EC by way of legislation and also by way of collective agreement – Effects of the collective agreement with regard to an employee who is not a member of the union which is a party to that agreement – Article 7 – Protection of employees’ representatives – Requirement of more extensive protection against dismissal − No requirement)
Summary of the Judgment
1.Social policy – Informing and consulting employees – Directive 2002/14
(European Parliament and Council Directive 2002/14, Art. 11(1))
2.Social policy – Informing and consulting employees – Directive 2002/14
(European Parliament and Council Directive 2002/14)
3.Social policy – Informing and consulting employees – Directive 2002/14
(European Parliament and Council Directive 2002/14, Art. 7)
1.Member States may leave the implementation of the social-policy objectives envisaged by a directive in this area in the first instance to management and labour. The power granted to the Member States by Directive 2002/14 establishing a general framework for informing and consulting employees in the European Community, to entrust management and labour, at the appropriate level, with defining freely and at any time through negotiated agreement the practical arrangements for informing and consulting employees, is in accordance with that principle. However, that possibility does not discharge the Member States from the obligation of ensuring, by appropriate laws, regulations or administrative measures, that all workers are afforded the full protection provided for in that directive; that State guarantee must cover all cases where protection is not ensured by other means, and, in particular, where the workers in question are not protected because they are not union members.
(see paras 38-40)
2.Directive 2002/14 establishing a general framework for informing and consulting employees in the European Community must be interpreted as not precluding its transposition by way of a collective agreement which results in a group of employees being covered by the agreement in question, even though the employees in that group are not members of the union which is a party to that agreement and their field of activity is not represented by that union, provided that the collective agreement is such as to guarantee to the employees coming within its scope effective protection of the rights conferred on them by Directive 2002/14.
(see para. 45, operative part 1)
3.Article 7 of Directive 2002/14 establishing a general framework for informing and consulting employees in the European Community must be interpreted as not requiring more extensive protection against dismissal to be granted to employees’ representatives. However, any measure adopted to transpose that directive, whether provided for by legislation or by collective agreement, must observe the minimum level of protection laid down in that provision.
Notwithstanding the discretion left to the Member States and to management and labour in this sphere, a collective agreement providing for a level of protection of employees’ representatives which is lower than that considered necessary by the national legislature in implementing legislation designed to bring its domestic law into line with that minimum protection threshold provided for in Article 7 of Directive 2002/14 cannot be held to be in accordance with that provision.
The dismissal of an employees’ representative on grounds of his status or the functions which he performs in his capacity as a representative is incompatible with the protection required by Article 7 of Directive 2002/14.
(see paras 58, 62, 66, operative part 2)