Opinion of Advocate General Norkus delivered on 20 March 2025

Uitspraak

Provisional text

OPINION OF ADVOCATE GENERAL

NORKUS

delivered on 20 March 2025 (¹)

Case C‑249/24

RT,

ED

v

Ineo Infracom

(Request for a preliminary ruling from the Cour de cassation (France))

( Reference for a preliminary ruling – Social policy – Collective redundancies – Directive 98/59/EC – Scope – Concept of ‘redundancy’ – Collective internal mobility agreement – Redundancies for economic reasons based on the refusal to apply that agreement – Termination of the employment contract occurring on the employer’s initiative for one or more reasons not related to the individual workers concerned – Classification of contractual changes – Employee information and consultation procedures – Obligations of the employer )

I.      Introduction

1.        In this case, the main proceedings result from the fact of 11 workers, including the applicants in the main proceedings, having been made redundant on the same day, by a French company, pursuant to national legislation, under which the redundancy of an employee, who has refused the application to his or her work contract of the terms of a collective agreement on internal mobility, is to be declared in accordance with the procedure for an individual redundancy for economic reasons.

2.        In this context, the two questions asked by the Cour de cassation (Court of Cassation, France) give the Court of Justice the opportunity, first, to provide clarification on the concept of ‘collective redundancies’, referred to in Article 1(1)(a) of Directive 98/59/EC, (²) and, second, to specify the scope, content and implementation over time of the employer’s obligations in the context of the information and consultation procedure, provided for in Article 2 of that directive.

II.    Legal framework

A.      European Union law

3.        The first subparagraph of Article 1(1)(a) and (b), Article 2, and the first and third subparagraphs of Article 3(1) of Directive 98/59 are relevant to the present case.

B.      French law

4.        Article L. 2242-21, first paragraph, of the Code du travail (French Labour Code) as amended by loi n^o 2013-504 relative à la sécurisation de l’emploi (Law No 2013-504 on securing employment) of 14 June 2013, and applicable to the facts of the dispute in the main proceedings (‘the Labour Code’), provides that the employer may start negotiations on the conditions of professional or geographical mobility within the company as part of current collective organisation measures without having any plan to reduce staff numbers.

5.        Article L. 2242-22 of that code states the following:

‘The agreement arising from the negotiations provided for in Article L. 2242-21 must include, inter alia:

1°      The limits imposed on that mobility beyond the employee’s geographical area of employment, itself specified by the agreement, while respecting the employee’s personal and family life in accordance with Article L. 1121-1;

2°      The measures seeking to reconcile work life and personal and family life and to take into account situations related to disability and health constraints;

3°      Accompanying measures for mobility, in particular training activities as well as assistance with geographical mobility, which includes inter alia employer contributions to compensation for any loss of purchasing power and transport costs.

The terms of the collective agreement concluded under Article L. 2242‑21 and the present article cannot have the effect of causing a decrease in the level of remuneration or the grade of the employee and must ensure the maintenance or improvement of his or her professional qualifications.’

6.        Article L. 2242-23 of the said code provides:

‘The collective agreement arising from the negotiations provided for in Article L. 2242‑21 shall be brought to the attention of each of the employees concerned.

The terms of the agreement concluded under Articles L. 2242-21 and L. 2242-22 are applicable to the employment contract. The terms of the employment contract that are contrary to the agreement shall be suspended.

Where, following a consultation phase enabling the employer to take into account the personal and family constraints of each of the employees potentially concerned, the employer wishes to implement an individual mobility measure provided for by the agreement concluded under the present article, it shall obtain the employee’s agreement in accordance with the procedure provided for in Article L. 1222-6.

Where one or more employees refuses to apply to their employment contract the terms of the internal mobility agreement referred to in the first paragraph of Article L. 2242-21, their redundancy shall be based on economic grounds, shall be declared in accordance with the procedure for an individual redundancy for economic reasons and gives the right to support and redeployment measures which must be envisaged by the agreement, which shall  adapt the scope and the implementation arrangements for the internal redeployment provided for in Articles L. 1233-4 and L. 1233-4-1.’

7.        Article L. 2323-6 of the same code, as it was worded prior to loi n^o 2015-994 relative au dialogue social et à l’emploi (Law No 2015-994 on social dialogue and employment) of 17 August 2015 and applicable to the facts in the dispute in the main proceedings, provides:

‘The works council shall be informed and consulted on matters concerning the organisation, management and general running of the undertaking and, in particular, on the measures likely to affect the volume or structure of staff, working hours, employment conditions, working conditions and professional training.’

8.        According to the settled case-law of the Cour de cassation (Court of Cassation, France), (³) it follows from a combined reading of Article L. 2323-2 and Article L. 2323-6 of the Labour Code that the decision taken by the head of the company must be preceded by consultation of the works council where that decision concerns one of the matters or measures referred to by the second of those provisions, without it being necessary to distinguish according to whether the decision at issue is a unilateral decision or takes the form of the negotiation of a collective agreement specific to the undertaking relating to one of the items legally submitted for the opinion of the works council.

III. The relevant facts, the questions referred and the procedure before the Court

9.        Ineo Infracom SNC is a French public works company specialising in telecommunications infrastructures and digital development. (⁴)

10.      On 26 April 2013, that company was informed by France Télécom SA of its decision not to renew the current contract for the Gard and Lozère departments. To compensate for the loss of that regional services market and pending identification of permanent solutions within the group to which it belongs, Ineo Infracom offered the 82 employees attached to the agency concerned by that loss temporary assignments to other French regions from 1 July 2013 as part of the long-distance regime provided for by the national collective agreement for public works employees of 15 December 1992.

11.      On 28 June 2013, RT and ED, employees of that company, refused the proposals of temporary assignment, to the Ivry-sur-Seine agency (France) and to the Vitrolles agency (France) respectively, for the period from 1 July to 28 September 2013. (⁵)

12.      On 9 July 2013, those employees instituted proceedings before the Conseil de prud’hommes de Nîmes (Labour Tribunal of Nîmes, France) concurrently with nine other employees, seeking, in addition to the payment of damages, the judicial termination of their employment contract on the ground of fault on the part of their employer.

13.      On 29 July 2013, taking the view that the undertaking’s current activity regularly involved the geographical redeployment of site staff as a result of losing and winning contracts and that no reduction in staff was planned, Ineo Infracom and several representative trade unions concluded a collective agreement on internal mobility (‘the collective internal mobility agreement’). Pursuant to that agreement, two job offers were sent to RT and to ED, who refused them, on 30 September and 30 December 2013 in the case of RT, and on 27 November 2013 and 20 January 2014 in the case of ED.

14.      On 10 June 2014, following that refusal, RT and ED, along with nine other employees, were each made individually redundant for economic reasons, pursuant to Article L. 2242-23 of the Labour Code.

15.      Their request for judicial termination of their employment contract still pending, RT and ED made an alternative claim before the Labour Tribunal of Nîmes challenging their redundancy.

16.      By judgments of 3 April 2017, the Labour Tribunal of Nîmes, first, declared the judicial termination of RT’s employment contract on the ground of fault on the part of the employer and ordered the employer to pay him damages and, second, dismissed ED’s claims.

17.      Ineo Infracom lodged an appeal against those judgments.

18.      By two judgments of 1 February 2022, the cour d’appel de Nîmes (Court of Appeal of Nîmes, France), set aside the judgment concerning RT and ruled again, dismissed his claims and also upheld the judgment concerning ED. That court found that the internal collective mobility agreement signed on 29 July 2013 by the majority of the representative trade unions within Ineo Infracom after the enactment of Law No 2013-504 expressly mentioned that it had been negotiated outside the context of any plan to reduce staff numbers. It inferred from this that that undertaking had not infringed Articles 1 and 2 of Directive 98/59, those provisions not applying in the absence of collective redundancy.

19.      RT and ED then lodged an appeal before the Court of Cassation, which is the referring court. They consider that the Court of Appeal of Nîmes infringed the relevant provisions of national law, as interpreted in the light of Articles 1 and 2 of Directive No 98/59, Article 27 of the Charter of Fundamental Rights of the European Union and Article 21 of the European Social Charter. (⁶) According to them, their employer was obliged to establish an employment protection plan guaranteeing that its employees are informed and consulted in good time, as is provided for in Article L. 1233-61 of the Labour Code, as well as appropriate support and redeployment measures, if the redundancies announced by that employer, regardless of whether they are classified as an ‘individual redundancy for economic reasons’ by Article L. 2242-23 of the Labour Code, concerned at least 10 employees in the same 30-day period. Moreover, RT and ED request, in the alternative, that the referring court make a reference to the Court of Justice for a preliminary ruling.

20.      It was under these circumstances that the Cour de cassation decided, by decision of 3 April 2024, received at the Court on 4 April 2024, to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is the second subparagraph of Article 1(1) of [Directive 98/59] to be interpreted as meaning that dismissals for economic reasons based on the refusal by employees to consent to the terms of [an internal] collective mobility agreement being applied to their employment contract must be regarded as constituting a termination of the employment contract which occurs on the employer’s initiative for one or more reasons not related to the individual workers concerned, with the result that they must be taken into account for the purpose of calculating the total number of redundancies?

(2)      If the first question is answered in the affirmative, where the number of redundancies contemplated exceeds the number of redundancies specified in [Article 1(1)(a) of Directive 98/59], is Article 2(2) to 2(4) of [that directive] to be interpreted as meaning that the informing and consultation of the works council before the conclusion of an internal mobility agreement with representative trade union organisations, pursuant to Article L. 2242-21 et seq. of the [Labour Code], relieve the employer of its obligation to inform and consult the staff representatives?’

21.      In the context of the proceedings before the Court, RT, Ineo Infracom, the French Government and the European Commission have submitted written observations. The Court decided not to hold a hearing in this case.

IV.    Analysis

22.      I shall begin by recalling that, according to settled case-law, the referring court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. (⁷)

23.      Regarding the national legislation at issue, it is apparent from the order for reference that Article L. 2242-23 of the Labour Code provides that the employer may start negotiations on the conditions of internal professional or geographical mobility within the undertaking as part of current collective organisational measures without a plan to reduce staff numbers. It is on that legal basis that, having regard to the geographical reallocation of site staff as a result of losing or winning contracts, Ineo Infracom and several representative trade unions within that undertaking concluded a collective internal mobility agreement.

24.      The situation behind the request for a preliminary ruling is characterised by the fact that, based on the refusal to apply to their employment contract the terms of the internal collective mobility agreement, 11 employees, including RT and ED, were made redundant on the same day by Ineo Infracom pursuant to the national legislation at issue, namely Article L. 2242-23 of the Labour Code. Under that article, making redundant an employee who has refused to apply to his or her employment contract the terms of that internal mobility agreement is based on economic grounds and is declared in accordance with the procedure for an individual redundancy for economic reasons.

25.      It is in this legal and factual context that I shall set out, first of all, some general considerations regarding the objective and scope of Directive 98/59 (Section A). I shall then examine the scope of the first question referred for a preliminary ruling and propose reformulating it (Section B). It is appropriate, in my view, to verify the applicability of the first subparagraph of Article 1(1) of that directive to the redundancies at issue in the main proceedings, by analysing, in particular, the concept of ‘collective redundancies’, within the meaning of that provision, in the light of the relevant case-law of the Court. Finally, to answer the second question, I shall consider the scope of the obligations of the employer in the context of the information and consultation procedure provided for in Article 2 of the said directive, by studying its content and implementation over time (Section C).

A.      General considerations concerning the objectives and scope of Directive 98/59

26.      I recall, in the first place, that it is apparent from recital 2 of Directive 98/59 that that directive aims to afford greater protection to workers in the event of collective redundancies while taking into account the need for balanced economic and social development within the European Union. In particular, according to recitals 3 and 7 of that directive, it is the differences still remaining between the provisions in force in the Member States concerning the measures designed to alleviate the consequences of collective redundancies that must be subject to an approximation of legislation. (⁸) Moreover, recital 4 of the said directive states that differences between the levels of protection afforded, in matters of collective redundancy, by national legislation can have a direct effect on the functioning of the internal market. (⁹)

27.      I must emphasise, in the second place, as the Court has repeatedly held, that, whilst it is true that Directive 98/59 harmonises only partially the rules for the protection of workers in the event of collective redundancies, the fact remains that the limited character of such harmonisation cannot have the consequence of depriving the provisions of the directive of practical effect. Therefore, a Member State cannot, in particular, adopt a national measure which, although ensuring an enhanced level of protection of workers’ rights against collective redundancies, would have the consequence of depriving Articles 2 to 4 of the said directive of their practical effect. (¹⁰)

28.      It is in the light of those considerations that the questions asked by the referring court must be examined.

B.      Scope of the first question and its reformulation

29.      It is necessary at the outset to recall that, according to settled case-law, (¹¹) in the procedure laid down in Article 267 TFEU, which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. With that in mind, the Court may have to reformulate the questions referred to it. The fact that a national court has worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute.

30.      In the case at hand, I note that the wording of the first question refers to the interpretation of the second subparagraph of Article 1(1)  of Directive 98/59, relating to redundancies for economic reasons based on the refusal, by the workers, to apply to their employment contract the terms of a collective internal mobility agreement. More specifically, the manner in which that question is worded by the referring court appears, at first glance, to suggest that the question is based on the premiss that the redundancies for economic reasons at issue in the main proceedings are regarded as a termination which may be assimilated to a redundancy, within the meaning of that provision.

31.      Despite the fact that the referring court does not explain why the order for reference refers to ‘terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned’ rather than to ‘collective redundancies’, within the meaning of Directive 98/59, that court explains succinctly yet clearly how the fourth paragraph of Article L. 2242-23, of the Labour Code, at issue in the main proceedings, ties in with other provisions of that code. More specifically, it indicates that that provision (which provides that redundancy based on the employee’s refusal to apply to his or her contract of the terms of the internal mobility agreement is to be declared in accordance with the procedure for an individual redundancy for economic reasons) excludes the application of the provisions of Articles L. 1233-28 to L. 1233-33 of the said code relating to the procedure for informing and consulting the works council or staff representatives where the employer is considering collective redundancy for economic reasons for at least 10 employees over the same 30-day period. (¹²)

32.      The referring decision thus appears to indicate that it is indeed due to that exclusion that the referring court asks the question whether the redundancies for economic reasons at issue must be regarded as constituting ‘terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned,’ within the meaning of the second subparagraph of Article 1(1) of Directive 98/59, without making reference to the first subparagraph of that provision, which defines the concept of ‘collective redundancies’.

33.      In those circumstances, in order to provide a helpful answer to the referring court, I feel that it is relevant to verify the premiss underpinning the first question asked, according to which the redundancies for economic reasons at issue in the main proceedings constitute a termination assimilated to a redundancy, for the purposes of Directive 98/59.

34.      In that regard, the Commission is of the opinion that the redundancies at issue must be classified as ‘redundancies’, within the meaning of the first subparagraph of Article 1(1) of Directive 98/59, and not as ‘terminations of an employment contract’, within the meaning of the second subparagraph of Article 1(1) of that directive, as RT and ED were made redundant for economic reasons, in accordance with the fourth paragraph of Article L. 2242-23 of the Labour Code. The French Government appears to be of the same opinion and, unlike Ineo Infracom, considers that the situation at issue in the main proceedings should be regarded as a ‘collective redundancy’ falling within the provisions of that directive.

35.      Ineo Infracom, for its part, claims that the redundancies declared following the refusal of the workers concerned to accept the application of the collective internal mobility agreement cannot be regarded as being ‘effected by an employer for one or more reasons not related to the individual workers concerned’, within the meaning of Article 1(1)(a) of Directive 98/59. In its view, the purpose of the collective internal mobility agreement put in place is to extend the management and organisational powers of the employer that wishes to adopt, outside of any context of workforce reduction, current measures for the mobility of its staff. By contrast, RT maintains that, pursuant to the national legislation at issue, all terminations of employment contracts for economic reasons, including redundancies declared on the basis of the fourth paragraph of Article L. 2242-23 of the Labour Code, must be taken into account to determine whether or not the employer has the obligation to establish and implement an employment protection plan.

36.      Under those circumstances, although the referring court questions the Court solely on the interpretation of the second subparagraph of Article 1(1) of Directive 98/59, I am of the opinion that the first question referred for a preliminary ruling should be understood as seeking to find out, in essence, whether the first subparagraph of Article 1(1)(a) of that directive must be interpreted as meaning that redundancies for economic reasons based on the refusal, by the workers, to apply to their employment contract the terms of a collective internal mobility agreement must be regarded as constituting a ‘redundancy’, within the meaning of that provision, or as a ‘termination of the employment contract’ which may be assimilated to such a redundancy, within the meaning of the second subparagraph of Article 1(1) of the said directive, such that they must be taken into account for the calculation provided for by the said provision.

37.      In the following points, I shall explain the reasons why I consider that the situation at issue in the main proceedings falls within the first subparagraph of Article 1(1) of Directive 98/59, which it is, however, ultimately for the referring court to verify.

1.      Applicability of the first subparagraph of Article 1(1) of Directive 98/59

38.      I must point out, in the first place, that the concept of ‘collective redundancies’ is defined in Article 1(1)(a) of Directive 98/59 as referring to ‘dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies’ meets the quantitative (a minimum number of workers) and temporal (in the same period) conditions established by that article for its application. (¹³)

39.      It is true that Directive 98/59 does not expressly define ‘redundancy’. Nevertheless, that concept has been the subject of settled case-law of the Court. It is apparent from that case-law that, in the light of the aim pursued by the directive and the context of the first subparagraph of Article 1(1)(a) thereof, there are grounds for considering that it is a concept of EU law which cannot be defined by reference to the laws of the Member States. In the case at hand, the said concept must be interpreted as encompassing any termination of the contract of employment not sought by the worker, and therefore without his or her consent. (¹⁴)

40.      In the second place, I must note that it follows from the said case-law that redundancies are to be distinguished from terminations of the employment contract which, on the conditions set out in the second subparagraph of Article 1(1) of Directive 98/59, are assimilated to redundancies for want of the worker’s consent. (¹⁵)

41.      As far as that distinction is concerned, I consider, as Advocate General Kokott explained in her Opinion in Pujante Rivera, (¹⁶) that whether there is a redundancy or a termination assimilable to a redundancy has significant practical consequences. This is because, as that opinion sets out, the protection in case of collective redundancy provided for by Directive 98/59 in favour of workers applies only for the former. By contrast, terminations assimilable to redundancies are merely taken into account in calculating the threshold for the application of the directive, without the employees affected themselves being able to receive the benefit of the protection conferred by that directive. In other words, the aim of that assimilation concerns only the ‘calculati[on of] the number of redundancies’ provided for in the first subparagraph of Article 1(1) of the said directive, which has the consequence that the other provisions of the same directive do not apply to workers whose employment contracts have been terminated.

42.      Therefore, taking into account the significance and the consequences that the distinction between ‘redundancy’ and ‘termination of an employment contract assimilated to redundancy’ entails for the workers concerned, it is appropriate to determine, in the light of the relevant case-law of the Court, whether the redundancies at issue in the main proceedings are capable of constituting ‘redundancies’ under the first subparagraph of Article 1(1)(a) of Directive 98/59.

(a)    Concept of ‘redundancy’, within the meaning of Directive 98/59: the relevant case-law of the Court

43.      In its first question referred for a preliminary ruling, the referring court questions the relevance of the case-law arising from the judgment in Socha and Others. (¹⁷) However, in order better to assess whether the redundancies at issue in the main proceedings fall within the concept of ‘redundancy’ referred to in Directive 98/59, it seems judicious to me to analyse also the judgment in Pujante Rivera. Moreover, that examination seems appropriate to me in so far as the legal and factual contexts of the cases which gave rise to those two judgments are not identical.

(1)    The judgment in Pujante Rivera

44.      The case which gave rise to the judgment in Pujante Rivera concerned a worker who had sought the termination of her employment contract on the basis of national legislation and who could, prima facie, be regarded as having consented to that termination. (¹⁸)

45.      In that case, one of the questions concerned whether the fact that an employer, unilaterally and to the detriment of the employee, makes a significant change to essential elements of his or her employment contract for reasons not related to the individual employee concerned falls within the definition of ‘redundancy’ or constitutes a termination of an employment contract assimilable to such a redundancy. The Court responded that that situation falls within the definition of ‘redundancy’ for the purpose of the first subparagraph of Article 1(1)(a) of the directive. (¹⁹) In fact, the Court considered that the origin of the termination of the employment relationship at issue was indeed the unilateral change made by the employer to the detriment of the employee. That change consisted in a 25 % reduction of the salary of the worker in question and, as she did not accept the reduction, resulted in the termination of the employment contract and the payment of damages calculated on the same basis as damages awarded in the case of unfair dismissal. (²⁰)

46.      In that judgment, the Court first recalled that, having regard to the objective of Directive 98/59, which is inter alia to afford greater protection to workers in the event of collective redundancies, a narrow definition cannot be given to the concepts that define the scope of that directive, including the concept of ‘redundancy’ in the first subparagraph of Article 1(1)(a) thereof. Second, it noted that, by harmonising the rules applicable to collective redundancies, the EU legislature intended both to ensure comparable protection for employees’ rights in the different Member States and to harmonise the costs which such protective rules entail for EU undertakings. (²¹)

47.      To my mind, that response as formulated by the Court resulted, on the one hand, from the particular situation which arose from the application of the national legislation at issue in that case and, on the other hand, from the circumstance that the change to the employment contract at issue which the employer had made unilaterally corresponded to a ‘redundancy’ in so far as, despite the acceptance of a mutually agreed termination by the worker concerned, that change resulted in a ‘significant deterioration’ in her working conditions and concerned essential elements of the employment contract. For that reason, the worker had little room for manoeuvre and her acceptance of a mutually agreed termination was not entirely voluntary. (²²) The Court therefore found that the said change had taken place without the consent of the worker concerned. (²³)

(2)    The judgments in Socha and Others and in Ciupa and Others (²⁴)

48.      In the cases which gave rise to the judgments in Socha and Others and in Ciupa and Others, changes to employment contracts had been unilaterally imposed by hospitals of a Member State on their employees. In those cases, the question which arose was, inter alia, whether Article 1(1) of Directive 98/59 had to be interpreted as meaning that a unilateral amendment by the employer, to the detriment of the employees, to their terms of remuneration which, if refused by the worker, resulted in termination of the employment contract had to be classified as ‘redundancy’, within the meaning of that provision. (²⁵)

49.      In particular, regarding the notice of amendment at issue in Ciupa and Others, (²⁶) the Court noted that it provided for a temporary reduction of remuneration by 15 %, followed, some months later, by a restoration of the remuneration to its original level. The Court considered that, while it cannot be disputed that remuneration is an essential element of the employment contract and a 15% reduction of remuneration could in principle be regarded as a ‘significant change’, the temporary nature of the reduction nevertheless markedly reduces the extent of the proposed amendment of the contract of employment. The Court therefore considered that it was ultimately for the referring court to determine whether the temporary reduction of the remuneration at issue was to be regarded as a ‘significant change’. (²⁷)

50.      Thus, the Court ruled that, if an employer, unilaterally and to the detriment of the employee, makes a non-significant change to an essential element of the contract of employment or a significant change to a non-essential element of that contract, in both cases for reasons not related to the individual employee concerned, that may not be regarded as a ‘redundancy’ within the meaning of Directive 98/59. (²⁸)

51.      In fact, the Court’s answer in those two cases arose from the fact that, contrary to the change at issue in Pujante Rivera, which was a significant reduction of the worker’s salary, the changes to essential or non-essential elements of the employment contracts in question were very limited, respectively, from a temporal or quantitative point of view. (²⁹) In that context, the Court pointed out that, even if, in each of these cases, those changes did not fall, according to the referring court, within the concept of ‘redundancy’, the termination of the employment contracts following the refusal of the employee concerned to accept such a change had to be considered to be a termination of the employment contract occurring on the employer’s initiative for one or more reasons not related to the individual workers concerned, within the meaning of the second subparagraph of Article 1(1) of Directive 98/59. (³⁰)

52.      In the light of that case-law, the question arises as to what is the legal classification of the contractual changes at issue in the main proceedings.

(b)    Classification of the contractual changes at issue in the main proceedings

53.      I note from the outset that it is for the referring court, which alone has jurisdiction to assess the facts, to determine, in the light of all the circumstances of the case, whether the proposed assignments, under the collective internal mobility agreement at issue in the main proceedings, must be classified as ‘significant changes’. (³¹) However, in view of the information contained in the order for reference and in the national case file, it seems to me possible to give clarifications aimed at guiding it in resolving the dispute in the main proceedings. (³²)

54.      With regard, first of all, to whether the employer, unilaterally and to the detriment of the employee, made changes to the employment contract at issue for reasons not related to the individual employee concerned, within the meaning of the case-law of the Court, (³³) I would recall that the referring court indicates that RT and ED were made redundant for economic reasons following their refusal to accept the proposals for assignment to other regions of France, under the collective internal mobility agreement.

55.      In that respect, Ineo Infracom has claimed that the mobility proposal which was submitted in the context of the application of an internal mobility agreement cannot be framed as a unilateral change (of an essential element of the contract), since it merely applies a collective agreement signed by representative trade unions.

56.      It is true that, as the French Government emphasises referring to Article L. 2242-23 of the Labour Code, the proposals for assignment of the employment contract at issue in the main proceedings are based not on a unilateral decision of the employer, but on a collective internal mobility agreement. Therefore, the refusal of an employee to accept such mobility proposals could, in principle, be regarded as a refusal to perform his or her employment contract, as amended by that collective agreement, such that the subsequent termination would be effected for a reason related to the individual employee concerned.

57.      However, as that government has itself clarified, on the one hand, the change of assignment at issue in the main proceedings does not automatically result from the internal collective mobility agreement in question. That change arises from the initiative of the employer to implement an individual mobility measure provided for by that agreement, that is to say to change unilaterally, following the loss of a significant contract, the assignment of the employee in the conditions provided for in the said agreement, but which are not imposed by it. On the other hand, it indicates that, in accordance with the third paragraph of Article L. 2242-23 of the Labour Code, where the employer wishes to implement such an individual mobility measure, it must obtain the employee’s agreement.

58.      Therefore, like the French Government and subject to verification by the referring court, I am of the opinion that, in so far as, in accordance with the fourth paragraph of Article L. 2242-23 of the Labour Code, the refusal of the employee to apply the terms of a collective internal mobility agreement to his or her contract bases the subsequent redundancy on economic grounds, declared in accordance with the procedure for an individual redundancy for economic reasons, the termination of the employment contracts at issue following the refusal of the employee concerned is effected for a reason not related to the individual employee concerned.

59.      So far as concerns, next, the nature of the contractual changes at issue in the main proceedings, it is for the referring court to determine whether the proposal for assignment to another region on the basis of the collective internal mobility agreement must be classified as a ‘significant change to the essential elements’ of the employment contract, within the meaning of the case-law arising from the judgment in Pujante Rivera or, on the contrary, as a ‘non-significant change to an essential element’ of the employment contract, or as a ‘significant change to a non-essential element’ of that contract, within the meaning of the case-law arising from the judgments in Ciupa and Others and in Socha and Others. (³⁴)

60.      In the first place, it cannot be disputed that the place of work constitutes an essential element of the employment contract. In that respect, it seems to me useful to recall that, as Article 4 of Directive (EU) 2019/1152 states, (³⁵) Member States are to ensure that employers are required to inform workers of the essential aspects of the employment relationship and that that information includes at least a series of concrete elements such as the place of work (or any mobility clause). (³⁶)

61.      In the second place, with regard to the significance of the changes to the employment contracts at issue, it is clear that an assignment to another region or ‘geographical area’ can, in principle, be regarded as a ‘significant change’ within the meaning of the case-law of the Court. (³⁷) Having said that, classifying the assignment as ‘significant’ depends on certain criteria concerning, inter alia, the geographical area where the new assignment is situated (particularly if it is in a different region), the distance between that new assignment and the original geographical area of assignment (if that involves change of the place of residence), the foreseeable duration of the said assignment (occasional, temporary or permanent), whether there is a mobility clause in the employment contract of the employee concerned and the content and support measures aimed at compensating for the proposed assignment.

62.      In the case at hand, unlike the initial relocations proposed, (³⁸) it is not apparent from the order for reference or from the documents before the Court whether the proposed assignments, under the collective internal mobility agreement, were temporary or not. (³⁹) Moreover, it is apparent from the observations of the French Government and from the information available to the Court that, in the absence of a mobility clause, an assignment to another region (or another geographical area) is a change of the employment contract that the employer cannot unilaterally impose on the employee without his or her agreement. In that regard, according to that government, it follows from the order for reference that the employment contracts did not contain a mobility clause. However, on reading the case file submitted to the Court, it follows from the addendum to RT’s employment contract that, due to his position as site manager, short-distance relocations could be envisaged. (⁴⁰)

63.      Therefore, an assignment to another region is, in principle, capable of being classified as a ‘significant change to an essential element’ of the employment contract, within the meaning of the Court’s case-law. Therefore, subject to verification by the referring court, I am of the opinion is that the termination of the employment relationship at issue stems from the unilateral change, to the detriment of the employees, made by the employer to a significant element of the employment contract for reasons not related to the individual employees concerned. (⁴¹)

64.      I recall, in the third and last place, that the Court has taken care to specify that it is of little importance whether certain situations are classified, under national law, not as ‘redundancies’, but as ‘terminations of employment contracts by operation of law’. The latter are in fact terminations of employment contracts not desired by the employee and are therefore redundancies within the meaning of Directive 98/59. Thus, the Court has held that any national legislative provision or any interpretation of the concept of ‘redundancy’, contained in the first subparagraph of Article 1(1)(a) of Directive 98/59, to the effect that, in such a situation, the termination of an employment contract is not a ‘redundancy’ for the purpose of Directive 98/59 would alter the scope of the directive and thus deprive it of its full effect. (⁴²)

65.      Finally, in the event that the referring court is not in a position to find that there has been a ‘significant change to the essential elements’ of the employment contracts at issue, I recall, very briefly, that there would be grounds for considering, in the light of the case‑law of the Court, (⁴³) that the termination of those contracts constitutes ‘terminations of an employment contract which occur on the employer’s initiative for one or more reasons not related to the individual workers concerned’, within the meaning of the second subparagraph of Article 1(1) of Directive 98/59, such that it must be taken into account for the calculation of the total number of redundancies that have occurred, provided that there are at least five redundancies in the strict sense. (⁴⁴)

2.      Interim conclusion on the first question

66.      It follows from the foregoing that the first subparagraph of Article 1(1)(a) of Directive 98/59 must be interpreted as meaning that redundancies for economic reasons based on the refusal, by the workers, to apply to their employment contract the terms of an internal collective mobility agreement are capable of constituting ‘redundancies’, within the meaning of that provision, such that they must be taken into account for the calculation provided for in the said provision, namely the total number of redundancies that have occurred, in order to assess the existence of collective redundancies.

C.      Second question: the scope of the information and consultation obligations provided for in Article 2 of Directive 98/59

67.      By its second question referred for a preliminary ruling, the referring court asks, in essence, whether Article 2 of Directive 98/59 must be interpreted as meaning that informing and consulting the works council before concluding a collective internal mobility agreement with representative trade unions exempts the employer concerned from informing and consulting staff representatives, in accordance with that provision.

68.      The French Government argues that the employer which concludes a collective internal mobility agreement with representative trade unions satisfies, for that reason alone, its obligations under Article 2(2) to (4) of Directive 98/59.

69.      I am not convinced by that approach. In fact, in order to determine whether the negotiations for the adoption of such a collective internal mobility agreement are in conformity with Article 2 of Directive 98/59 on the information and consultation procedure, the referring court will have to go further than a mere finding of the conclusion of that agreement to determine, taking into consideration all the relevant circumstances of the case, whether those negotiations satisfy both the content of the employer’s obligations, laid down in the context of that procedure, and the requirements applicable to how they progress over time.

70.      Before providing the referring court with guidance to help it in its verifications, I must start by recalling that it is apparent from the settled case-law of the Court that the main objective of Directive 98/59 is to make collective redundancies subject to prior consultation with the workers’ representatives and prior notification to the competent public authority. (⁴⁵) With regard to that objective, in order to terminate employment contracts, the employer which is contemplating collective redundancies must comply with the two series of procedural obligations imposed by that directive, which are built around a two-step procedure provided for in Articles 2, 3 and 4 of the said directive. (⁴⁶)

1.      Content of the obligations

71.      In terms of the content of the obligations, Article 2(1) of Directive 98/59 provides that, where an employer is contemplating collective redundancies, it is to begin consultations with the workers’ representatives in good time with a view to reaching an agreement. It follows from Article 2 of that directive that the consultation procedure is to precede any termination of employment contracts, thereby imposing an obligation to negotiate. (⁴⁷)

72.      In that respect, the Court has emphasised that it is apparent from the wording of Article 2(1) and of the first subparagraph of Article 2(2) of Directive 98/59, that the consultations to be carried out must take place with a view to reaching an agreement, at least cover ways and means of avoiding or reducing the projected collective redundancies and of mitigating the consequences by recourse to accompanying social measures, and enable workers’ representatives to make constructive proposals on the basis of a range of information that has to be made available to them by the employer. (⁴⁸) In addition, pursuant to Article 2(3)(a) and (b) of that directive, to enable workers’ representatives to ‘make constructive proposals’, the employer is, in good time during the course of the consultations, to  supply them with all relevant information and in any event notify them in writing of the information mentioned in that provision. (⁴⁹)

2.      Progress over time

73.       As regards the point in time from which an employer is obliged to conduct the consultations provided for in Article 2 of Directive 98/59, the Court emphasises in its case-law that the terms used by the EU legislature indicate that the consultation obligations laid down in that article arise prior to any decision of that employer to terminate employment contracts. (⁵⁰) In that regard, the Court has specified that those obligations must be implemented by the employer once a strategic or commercial decision compelling it to contemplate or to plan for collective redundancies has been taken. The Court thus considered that an employer is bound to conduct the consultations laid down in that article where it contemplates effecting a unilateral amendment to the employment contracts concerned, since, in such a situation, that employer can reasonably expect that a number of employees will not accept the unilateral amendment of their employment contract, and that their contracts will be terminated as a result. (⁵¹)

74.      It follows, to my mind, that Directive 98/59 requires from the employer that the procedural obligations laid down in Article 2 thereof be met within the specific timeframe set by the EU legislature. That requirement is thus corroborated by the objective of that Article 2(2), which is to avoid terminations of employment contracts or to reduce their number. According to the Court, the achievement of that purpose would be jeopardised if the consultation of workers’ representatives were to be subsequent to the employer’s decision. (⁵²)

75.      In the case at hand, it is for the referring court and not the Court of Justice to interpret national law and to assess whether, as the French Government argues, the negotiation of the collective internal mobility agreement is capable of constituting ‘strategic or commercial decision-making’ compelling Ineo Infracom to contemplate or to plan for collective redundancies. (⁵³) However, in the light of the information in the order for reference and in the national case file, it seems to me possible to provide a few clarifications to help it to resolve the dispute in the main proceedings.

76.      In that respect, first, I note that, like the cases which gave rise to the Ciupa and Others and Socha and Others judgments, the present case appears to be linked to economic decisions which, as is apparent from the order for reference, were not directly aimed at terminating specific employment relationships, but which could nevertheless have repercussions on the employment of a certain number of employees. In so far as Ineo Infracom has considered that, in the light of the loss or winning of a regional service contract, the undertaking’s current activity regularly involved the geographical deployment of site staff, it made the temporary assignments without reducing staff numbers. As is apparent from the order for reference, those initial proposed assignments having proved insufficient, Ineo Infracom considered it necessary to start, under the legislation at issue, negotiating a collective internal mobility agreement, the application of which allowed it to make unilateral changes to the employment contracts concerned, namely the proposals for assignment to another region at issue. In such a situation, however, Ineo Infracom could reasonably expect that a number of employees would not accept the unilateral amendment of their employment contracts, and that their contracts would be terminated as a result. (⁵⁴)

77.      Consequently, since the decision to send to RT and ED proposals for assignment to another region necessarily meant, for Ineo Infracom, that collective redundancies were being contemplated, it was for it, to the extent that the quantitative and duration conditions defined in Article 1(1) of Directive 98/59 were satisfied, (⁵⁵) to carry out the consultations provided for in Article 2 of that directive.

78.      Second, that conclusion appears inescapable in so far as the purpose of the consultation obligation laid down in Article 2 of Directive 98/59 and the objective pursued, according to the French Government, by the negotiation of a collective internal mobility agreement appear, prima facie, to coincide, at least in part. Indeed, their respective aims seem to be avoiding terminations of employment contracts and reducing the number and consequences thereof by resorting to accompanying social measures, (⁵⁶) which it is for the referring court to verify. As the Court emphasises, since a decision leading to a change in working conditions may allow collective redundancies to be avoided, the consultation procedure provided for in Article 2 of Directive 98/59 must begin as soon as the employer contemplates making such changes. (⁵⁷)

3.      Interim conclusion on the second question

79.      In the light of the foregoing, I am of the opinion that Article 2 of Directive 98/59 must be interpreted as meaning that informing and consulting the works council before concluding a collective agreement on internal mobility with representative trade unions may exempt the employer concerned from informing and consulting staff representatives, provided that the obligations laid down in that article, including the requirements relating to their implementation over time, are respected by the employer, which it is ultimately for the referring court to verify.

V.      Conclusion

80.      In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Cour de cassation (France) as follows:

(1)      The first subparagraph of Article 1(1)(a) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies

must be interpreted as meaning that redundancies for economic reasons based on the refusal, by the workers, to apply to their employment contract the terms of an internal collective mobility agreement are capable of constituting ‘redundancies’, within the meaning of that provision, such that they must be taken into account for the calculation provided for in the said provision, namely the total of redundancies that have occurred, in order to assess the existence of collective redundancies.

(2)      Article 2 of Directive 98/59

must be interpreted as meaning that informing and consulting the works council before concluding a collective agreement on internal mobility with representative trade unions may exempt the employer concerned from informing and consulting staff representatives, provided that the obligations laid down in that article, including the requirements relating to their implementation over time, are respected by the employer, which it is ultimately for the referring court to verify.