Must the reference period (30 or 90 days) for collective redundancies as laid down by EU Directive 98/59 1998 that is used to classify a redundancy as collective or not and that is based on the number of employment contract terminations occurring during that period, precede, succeed or overlap the end date of an employment contract for an employee seeking to benefit from the more advantageous collective redundancy scheme? On 11 November the CJEU responded to a preliminary ruling from a Spanish court, stating that the reference period should comprise all periods of 30 or 90 consecutive days during which the individual dismissal being contested actually occurred. In other words, the number of employment contract terminations for reasons other than personal motives must be established using a rolling time period. With this interpretation, the CJEU wants to both ensure that companies will not look to sidestep the law, and guarantee that the maximum number of workers will benefit from the more protective and advantageous collective dismissal regime.
The question referred to the CJEU by a Spanish court concerned compatibility between national case-law and the relevant EU Directive. Spanish jurisdictions only consider employment terminations that have taken place in the 90 days prior to the date of the individual dismissal in question as eligible for establishing the existence of a collective redundancy.
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