Request for a preliminary ruling from the Dioikitiko Protodikeio Athinon (Greece) lodged on 16 June 2022 – Ethnikos Organismos Pistopoiisis Prosonton & Epaggelmatikou Prosanatolismou (ΕΟPPΕP) v Elliniko Dimosio
(Case C-404/22)
Language of the case: Greek
Referring court
Dioikitiko Protodikeio Athinon
Parties to the main proceedings
Applicant: Ethnikos Organismos Pistopoiisis Prosonton & Epaggelmatikou Prosanatolismou (ΕΟPPΕP)
Defendant: Elliniko Dimosio
Questions referred
1) (a) What does the term ‘undertaking carrying out an “economic activity”’ mean for the purposes of Article 2(a) of Directive 2002/14/EC?1
(b) Does it include private-law legal entities such as the EOPPEP which, in the exercise of its powers of certification of vocational training bodies, acts as a public-law legal entity and exercises public powers, inasmuch as (i) for certain of its activities, such as the provision of all manner and form of vocational guidance services to the competent ministerial bodies, centres and vocational education and training bodies, undertakings, and employers’ and workers’ associations (Article 14(2)(ib) of Law 4115/2013, Government Gazette I/24), it follows from Article 14(2)(ie) of that law laying down the requirements for the provision of advisory and vocational guidance services by private individuals and legal entities in Greece that there may be a market in which commercial undertakings are carrying out an activity in competition with the applicant, and (ii) according to Article 23(1)(d) of that law, the applicant’s resources include revenue from the performance of work and the provision of services either allocated to it by the Minister or performed on behalf of third parties, including government departments, national and international organisations, public- or private-law legal entities and private individuals, whereas (iii) for its other activities, Article 20 of Law 4115/2013 provides for the payment of fees?
(c) Does the answer to the above question depend on whether, in relation to most of the activities (Article 14(2) of Law 4115/2013) of the private-law legal entity, a few appear to be carried out only in a market environment and, if the answer to that is in the negative, whether it suffices that the legislature provided (Article 14(2)(ib) and Article 23(1)(d) of Law 4115/2013) for that legal entity to act, in part at least, as a market operator or whether it is necessary to prove that it does indeed carry out a particular activity in a market environment?
2) (a) What do the terms ‘situation’, ‘structure’ and ‘probable development of employment’ in the undertaking, on which workers must be informed and consulted, mean for the purposes of Article 4(2)(b) of Directive 2002/14/EC?
(b) Do the above terms include the removal of employees from positions of responsibility in which they were placed temporarily after the private-law legal entities EKEPIS and EKEP had merged with the EOPPEP and operating regulations had been adopted for that legal entity which did not abolish those positions, and must the workers therefore be informed and consulted prior to their removal?
(c) Does the answer to the above question depend on (i) whether the smooth functioning of the legal entity and its operational needs were cited as the reason for the removal of a worker from a position of responsibility, so that it can achieve the objectives which it was established to pursue, or whether poor performance of the worker’s duties as acting head was the reason for the worker’s removal; (ii) the fact that the employees removed from positions of responsibility were retained as members of the legal entity’s staff; or (iii) the fact that other persons were temporarily placed in positions of responsibility by the decision of the competent body removing employees from positions of responsibility?
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1 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 – Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29).