CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ TEN YEARS AFTER THE VIKING JUDGMENT … jurisprudence and is also remarkable in the light of the aforementioned AGs’ proposals on how to constructively overcome this case-law in the post-Lisbon period. In this matter, the CJ has addressed preliminary questions from the crisis that burdened Greece where AGET Iraklis, a part of a French-based cement company Lafarge, wanted to lay off 236 employees of one of its three Greek factories and concentrate its limited activities on the remaining two. In accordance with Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies (and also with the implementing Greek law No 1387/1988), the employer had invited to negotiations the trade union representing the employees of the plant to be closed. When two such invitations failed, the employer applied (in conformity with the Greek law) to the Minister of Labor to get his approval for conditions of collective redundancy. The Minister did not approve the proposal of AGET Iraklis and argued that rising unemployment and unfavorable conditions in the Greek labor market, plus the situation of the company and the interest of the national economy were against the planned collective redundancy. Such a result and its justification were permitted by the Greek law implementing the EC Directive on collective redundancies. AGET Iraklis challenged the Minister’s decision by appealing to the Greek State Council. In its submission, the company pointed to the contradiction between the provisions of the Greek law under which the Minister rejected its application, and Directive 98/59 / EC and also Articles 49 and 63 TFEU (freedom of establishment and freedom of movement of capital) and Article 16 of the CFREU (freedom to conduct a business). The State Council referred preliminary questions to the CJ, precisely on the compatibility of certain provisions of the Greek law with Directive 98/59/EC and with Articles 49 and 63 TFEU, and if the CJ found a contradiction, then on the possibility of an exemption with regard to “serious social reasons” such as the deep economic crisis and the extraordinary rate of unemployment in the country. In other words, the CJ was again invited to decide on whether and under what conditions a local interest in a particular social protection measure (corresponding, among other things, to the fundamental social law enshrined in Article 30 of the Charter - Protection in the event of unjustified dismissal) could prevail over the fundamental freedoms of the EU internal market. In dealing with that part of the case, i.e. the question whether the measures taken by the Greek State, not motivated by purely economic reasons (the interest of the national economy), but by overriding reasons in public interest such as the protection of employees, promotion of employment, reduction of unemployment and preservation of jobs, may prevail over the freedom of establishment and also over the fundamental right to conduct a business, the CJ surprisingly showed friendliness to social measures. Firstly - in view of its existing case-law – the CJ quite exceptionally and particularly emphatically recalled that Article 3 (3) TEU commits the EU to a highly competitive social market-based economy with full employment and that, under Article 9 TFEU, the EU must always take into account the requirements linked to the promotion of a high level of employment. Internal market freedoms should be kept in balance with the objectives pursued by social policy, i.e. in balance with the goals of Article 151 (1) TFEU such as the promotion of employment, adequate social protection, etc. collective redundancies breaches Article 49 TFEU. EU Law Analysis 8 July 2016 http://eulawanalysis.blogspot. cz/2016/07/the-new-vikinglaval-ag-wahl-argues-that.html; MARKARIS, M., Case C-20115 AGET Iraklis: Can Governments control mass layoffs by employers? Economic freedoms vs labour rights. EU Law Analysis 3 January 2017 http://eulawanalysis.blogspot.cz/2017/01/case-c-20115-aget-iraklis-can.html.

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