Case note. Court of Justice of the European Union.
Collective consultation without appointed representatives: EI v Brink's
- Court
- Court of Justice of the European Union
- Date of decision
- Case reference
- C-496/22; ECLI:EU:C:2023:741
- Jurisdiction
- European Union (reference from Romania)
- Parties
- EI v SC Brink's Cash Solutions SRL
- Bench
- M. L. Arastey Sahún (President), F. Biltgen (Rapporteur) and J. Passer; Seventh Chamber
- Decision under appeal
- Reference from the Court of Appeal, Bucharest, Romania
- Result
- Preliminary ruling on Directive 98/59; the employee's national claim was not decided by the Court of Justice.
The representation problem
The reference arose from a redundancy dispute where workers’ representatives had not been appointed. The Court considered whether Directive 98/59 required individual consultation in their absence.
It held that the Directive did not preclude national legislation which imposed neither individual consultation nor an obligation on workers to appoint representatives. Crucially, national law still had to guarantee the Directive’s full effect where circumstances beyond the workers’ control prevented representation.
Member States must take appropriate measures to enable representation; an employer cannot frustrate it. The absence of representatives was therefore not an unconditional exemption from the protective framework.
Significance for workforce planning
A restructuring team should establish the representation position early enough to resolve uncertainty before relying on a consultation timetable. A record of who represents the affected workforce, the basis of that authority and any unresolved difficulty in establishing representation is commercially useful. An empty entry headed employee representatives leaves a material issue unexplained.
For advisers negotiating exits, that inquiry can reveal whether the proposed process rests on an assumption that needs legal examination. Individual settlement discussions and a collective process may also generate different records and different expectations. Keeping the purpose and timing of each discussion clear helps the parties understand what has actually been addressed.
These are practical implications of the issue raised by the case. The ruling does not establish that individual meetings satisfy every applicable national obligation, nor does it decide that the particular redundancies were lawful. A Maltese restructuring requires the representation and consultation requirements of Maltese law to be checked independently.
Related: Employees’ representative · Collective redundancy · Tomann (CJEU) · Degiorgio v Air Malta
Key insights
- The absence of workers' representatives is not an unconditional exemption from the collective redundancy framework.
- Establish early who represents the affected workforce, and on what basis, before relying on a consultation timetable.
- In Malta, the Employment and Industrial Relations Act says who the representatives are where there is no recognised union; check it independently.
The law changes, so please check the current position with an advocate before acting.