EU: Court of Justice Rules on Scope of Information and Consultation Obligations when Taking Away Managerial Mandates of Employees in a Public Sector Context
The Eoppep case (Ethnikos Organismos Pistopoiisis Prosonton & Epangelmatikou Prosanatolismou/E. Dimosio) concerns the interpretation of Article 2(a) and Article 4(2)(b) 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.
This case involved a private-law legal entity within the Greek public sector that acts as the administrative agency for the lifelong education and training of employees. Three employees were released from their managerial roles in early 2018, though they continued working in their respective departments. Two of these employees raised objections before the Labour Relations Inspectorate, citing a lack of prior information and consultation with employee representatives.
The Court of Justice ruled that despite its public law duties, the organisation fell under the scope of the Framework Directive 2002/14/EC on informing and consulting employees. The Directive defines an “undertaking” as any public or private undertaking carrying out an economic activity, whether for profit or not [Article 2(a)]. The criterion of an “economic activity” is fulfilled if the undertaking provides remunerated services that compete with market participants.
However, the Court concluded that there was no obligation for information and consultation regarding the decisions in question. According to Article 4(2)(b) of Directive 2002/14, the right to information and consultation concerns “information and consultation on the situation, structure, and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment.” Thus, this right does not refer to individual employment relationships. Moreover, the managerial positions affected by the decisions were not deemed to have a significant impact on the overall employment situation within the company.
On those grounds, the Court of Justice ruled the following:
- Article 2(a) 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 refer to a legal person governed by private law who acts as a legal person governed by public law and exercises public powers where it also provides for remuneration services that are in competition with those provided by market operators.
- Article 4(2)(b) of Directive 2002/14 means that the information and consultation obligation laid down therein does not apply in the event of a change of post for a small number of employees appointed on an interim basis to management roles, where that change is not capable of affecting the situation, structure, or probable development of employment within the undertaking concerned or placing employment more generally under threat.
Take-aways:
- Private entities exercising public powers fall under the scope of Directive 2002/14 if they provide remunerated services that compete with other market operators.
- The information and consultation obligation does not apply to a change of post for a small number of employees appointed on an interim basis to management roles if it does not have a significant impact on the structure of the company or on employment.
