Akavan Erityisalojen Keskusliitto AEK ry v Fujitsu Siemens Computers Oy
| AEK ry v Fujitsu Siemens Computers Oy | |
|---|---|
| Court | European Court of Justice |
| Citation(s) | (2009) C-44/08, [2009] IRLR 944 |
| Keywords | |
| Information and consultation | |
Akavan Erityisalojen Keskusliitto AEK ry v Fujitsu Siemens Computers Oy (2009) C-44/08 is a European labour law case, concerning the information and consultation in the European Union.
Facts
The Dutch giant Fujitsu Siemens Computers (Holding) BV was the parent that owned subsidiary Fujitsu Siemens Computers. It had plants in Finland and Germany. On 14 December 1999, the parent directors proposed to close the Finnish factory of the subsidiary. The subsidiary consulted between 20 December 1999 and 31 January 2000. The decision to close was taken on 1 February 2000, and completed the week after. The workers claimed the decision was taken before consultation began, contrary to the Collective Redundancies Directive 98/59/EC article 2(1) which required an employer to embark upon consultations when ‘contemplating’ collective redundancies and ‘in good time’.
Judgment
The Court of Justice, Fourth Chamber, Judge Lenaerts presiding, rejected that the real decision was taken on 14 December, and that consultations should have been concluded before then. Redundancies being a mere probability were not enough. The obligation does not depend on availability of information, as information would evolve with the process. The obligation to start consulting arises irrespective of who is making the decision, but liability stays with the subsidiary.
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45. [The UK submitted that it was important to avoid...] premature triggering of the obligation to hold consultations’ which could mean ‘restricting the flexibility available to undertakings when restructuring, creating heavier administrative burdens and causing unnecessary uncertainty for workers about the safety of their jobs.
[...]
48. It must therefore be held that, in circumstances such as those of the case in the main proceedings, the consultation procedure must be started by the employer once a strategic or commercial decision compelling him to contemplate or to plan for collective redundancies has been taken.
[...]
65. ... in the case of a group of undertakings consisting of a parent company and one or more subsidiaries, the obligation to hold consultations with the workers’ representatives falls on the subsidiary which has the status of employer only once that subsidiary, within which collective redundancies may be made, has been identified.
