Must the reference period (30 or 90 days) for collective redundancies, as laid down by relevant 1998 EU Directive 98/59, and which is used to classify a redundancy as collective or not based on the number of employment contract terminations occurring during that period, precede, succeed or overlap the ending of an employment contract for an employee seeking to benefit from the more advantageous collective redundancy scheme? This is the question that has been referred to the CJEU by a Spanish court concerned over national case-law compatibility with the relevant EU Directive. Indeed, Spanish labor legislation considers that only employment terminations that have taken place in the 90 days prior to the date of the individual dismissal in question are taken into account in order to establish the existence of a collective redundancy. Advocate General Bobek, in his Opinion delivered on 11 June, states that the protection resulting from the arrangements for collective redundancies must be triggered ‘if the worker was dismissed within a consecutive 30 or 90 day period, however calculated, in which the number of redundancies reaches the required threshold,’ that is to say entirely before, entirely after or partly before and partly after the redundancy in question.
The Spanish legislation transposing the European Directive provides that:
‘For the purposes of the present law, ‘‘collective redundancy’’ shall mean the termination of employment contracts on economic, technical, organisational or production grounds where, over a period of 90 days, the termination affects at least:
(a) 10 workers in undertakings employing fewer than 100 workers;
(b) 10% of the number of workers in an undertaking employing between 100 and 300 workers;
(c) 30 workers in undertakings employing more than 300 workers.’
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