Key facts of the case:
- Stated with the utmost simplicity, the question of principle raised by the Cour de cassation (Court of cassation) is whether the Charter of Fundamental Rights of the European Union (‘the Charter’), where its contents have been given specific expression by a directive, may be relied on in relations between individuals. If the response is in the affirmative, the referring court raises a much more specific question, for the purpose of which the Court has case-law which will greatly facilitate its task. First, however, the question of principle must be considered.
- This case stems from the uncertainties of the Cour de cassation concerning the compatibility of a national legislative provision with the right of workers to information and consultation, as given specific expression in Directive 2002/14/EC. (2) That directive implemented in detail the right now declared in Article 27 of the Charter, a right which must be examined to determine whether it is in the nature of a ‘right’ or a ‘principle’, within the meaning of the general provisions of the Charter (Articles 51(1) and 52(5)). It should be pointed out, moreover, that the uncertainties of the Cour de cassation have arisen in the context of a dispute between a union and an employer, which has led the Cour de cassation to refer a question to the Court concerning the effectiveness of both the right at issue and its specific expression in Directive 2002/14 in the sphere of relations between individuals.
Results (sanctions) and key consequences of the case:
In the light of the arguments set out, I propose that the Court reply in the following terms to the questions referred for a preliminary ruling by the Cour de cassation:
- Article 27 of the Charter of Fundamental Rights of the European Union, given specific substantive and direct expression in Article 3(1) of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, may be relied on in a dispute between individuals, with the potential consequences which this may have concerning non-application of the national legislation.
- Article 27 of the Charter of Fundamental Rights of the European Union, given specific substantive and direct expression in Article 3(1) of Directive 2002/14, must, in view of the impossibility of providing an interpretation of domestic law which is consistent with European Union law, be interpreted as meaning that it precludes national legislation which excludes a specific category of workers, namely those with ‘excluded contracts’, from the calculation of staff numbers for the purposes of that provision, allowing the national court, under Article 52(5) of the Charter, to refrain from applying national rules contrary to those rules of European Union law.