In a recent decision, the Bucharest Court of Appeal annulled a decision on economic dismissal taken in the context of a collective redundancy procedure, holding that the employees’ right to information and consultation, as provided for by Directive 98/59, had not been respected. A reference for a preliminary ruling was made to the European Court of Justice of the European Union, to interpret the application of the provisions of the Directive from the perspective of informing and consulting employees’ representatives when ‘the employees concerned by the collective redundancy procedure have neither appointed employees’ representatives nor are legally obliged to do so’.
In this context, the CJEU ruled that the provisions of the Directive “do not preclude national legislation which does not lay down an obligation on an employer to consult individually the workers concerned by a contemplated collective redundancy, where those workers have not designated workers’ representatives, and which does not require those workers to make such a designation, provided that legislation makes it possible, in circumstances beyond the control of those workers, to ensure that those provisions of Directive 98/59, as amended, are fully effective”. The CJEU ruled that the main objective of the Directive is to ensure that workers’ representatives are consulted and informed, and not that the workers affected by a planned collective redundancy are informed and consulted individually.
However, the Bucharest Court of Appeal annulled the dismissal decision on the grounds that the employer should have timed the initiation of the redundancies precisely in order to give the employees a reasonable time to appoint their representatives. In other words, although the collective redundancy procedure for had been followed (e.g. notification of the competent authorities), the Court found that the whole process was flawed by the fact that the employer did not wait for the employees to organize themselves and appoint their representatives. The Court penalized the fact that the employer in question did not take a proactive stance, in which case it should have initiated discussions at employees’ level in advance, so that the employees could appoint other representatives to carry out the information and consultation process.
