CASELEX:EU:2010:14 – Employment Law – Protection of employees’ representatives

This reference for a preliminary ruling has been made by the Vestre Landsret (Western Regional Court) (Denmark) in the context of a dispute between the applicant, the Danish Association of Engineers (Ingeniørforeningen i Danmark) (‘IDA’), acting on behalf of Mr Bertram Holst, a former employee of the company Babcock & Wilcox Vølund ApS (‘BWV’), and the defendant, the Confederation of Danish Employers (Dansk Arbejdsgiverforening) (‘DA’), acting on behalf of BWV, concerning the dismissal of Mr Holst by BWV. 

Mr Holst was engaged on 1 July 1984 by BWV under an individual contract of employment as a project engineer. He is a salaried employee and, according to the information provided by the referring court, is covered by the Danish Law on salaried employees (Funktionærloven) (‘the FL’). 

In 2001 Mr Holst was elected as the employees’ representative for engineers on BWV’s cooperation committee. That committee, which was established pursuant to the Cooperation Agreement, is made up of representatives of management and employees. Within that committee, the employees’ representatives included representatives of employees who were members of the Danish Confederation of Trade Unions (Landsorganisationen i Danmark) (‘LO’) and representatives of other employee groups. 

On 24 January 2006, together with other employees, Mr Holst was given six months’ notice of termination of his employment on grounds of downsizing by BWV. He challenged the grounds for his dismissal. 

Mr Holst is a member of IDA, which has acted on his behalf before the national court. IDA is not a member of LO and has no collective agreement with BWV either for the professional group of engineers or for any other employee groups. IDA is therefore not a party to the Cooperation Agreement (Samarbejdsaftalen) concluded between the two principal labour and employer organisations in Denmark, namely LO and DA. 

BWV employs approximately 240 people. It is a member of the Confederation of Danish Industry (Dansk Industri), an employers’ association. Dansk Industri is in turn a member of DA. 

As stated in paragraph 22 of this judgment, as part of the transposition 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 (Directive 2002/14) into the Danish legal system, amendments were made to the Cooperation Agreement in 2005 which, according to the parties to that agreement, correctly transposed the directive. 

On 8 November 2006, IDA, acting on behalf of Mr Holst, brought an action before the Esbjerg District Court (Byretten i Esbjerg), seeking to have BWV ordered to pay Mr Holst damages in respect of his dismissal, pursuant to the FL. IDA took the view that that dismissal was not based on objective grounds. It further submitted that, as an employees’ representative on the cooperation committee, Mr Holst was entitled to more extensive protection against dismissal, pursuant to Article 7 of Directive 2002/14. It stated that he was entitled to such protection irrespective of whether or not he belonged to a group of employees covered by a collective agreement. 

Dansk Industri, acting at that time on behalf of BWV, submitted that the action ought to be dismissed, arguing inter alia that, at the time of his dismissal, Mr Holst had enjoyed the benefit of the notice to which he was entitled under both the FL and the Cooperation Agreement. That notice, it submitted, was such as to satisfy the requirements of Directive 2002/14, as provided for in Article 7 thereof. 

The parties to the dispute in the main proceedings agreed to have the case examined by the Vestre Landsret and it was at that stage that DA became the representative of BWV in the proceedings. 

Taking the view that an interpretation of Directive 2002/14 was necessary in order for it to be able to resolve the dispute, the Vestre Landsret decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling.