On May 13 the ECJ delivered a ruling on a Spanish case that completes its judgment in the USDAW case of the previous week where the ECJ judge had confirmed the more restrictive concept of ‘establishment’ as being the reference for calculating redundancy thresholds and initiating information & consultation (I&C) proceedings with employee representatives. However the May 13 judgment has declared as out of line with EU law the piece of Spanish legislation that refers to the undertaking (i.e. not the establishment) as the reference for thresholds and I&C proceedings when this reference is being used to avoid entering into I&C proceedings. In short, one can conclude the following: the ‘establishment’ is the essential minimum and Member States can extend thresholds to the wider ‘undertaking’ level but only if this results in a collective redundancy procedure that would not otherwise have occurred.
Last week’s decision in the USDAW v. Wilson case (c.f. article No. 9052) and reconfirmed by the court on May 13 in the Lyttle case underlines that Directive 98/59 on collective redundancies serves to ensure comparable protection in all EU countries. For this the directive relies on a common definition of the notion of ‘establishment’ as this is the level, defined by the directive, used to set out thresholds for redundancy and I&C. In the selfsame judgment, the court also recognized that Member
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