The ECJ Questions The Wording In Some Of The Articles In The Workers Statute

In recent years and especially in the past two years, the Court of Justice of the European Union (ECJ) is becoming of great relevance in the interpretation and application of national labour law. Thus, at the root of various preliminary issues raised by national judiciary bodies of Spanish labour courts, the ECJ, in several recent judgments, is profoundly altering relevant fields, such as the calculation of numeric thresholds to determine when to carry out a collective dismissal, pursuant to Article 51 of the Workers Statute [Estatuto de los Trabajadores] (ET), as shown in our analysis below.

As a preliminary analysis of the resolutions adopted by the ECJ, it is important to analyse the nature of the issue of prejudiciality.

The procedure for the issue of prejudiciality takes place when a national court or tribunal submits a matter of European Union law to the ECJ for a resolution on the matter that allows the national court or tribunal to decide on the case that has been submitted and that it must resolve. The function of the issue of prejudiciality is to ensure a uniform and valid interpretation of EU law in all Member States.

This procedure is governed by Article 267 of the Treaty on the Functioning of the European Union (TFEU), which provides that: "When a matter is raised before any court of a Member State, that Court may, if it considers that a decision on the matter is necessary to enable it to issue a judgment, request the Court of Justice of the European Union to rule on that matter."

While lower courts have discretion to decide if they deem it relevant to submit a matter of prejudiciality or not, Article 267 of the TFEU excludes such discretion in the event that the ruling to be issued is a matter under the competence of the final appealable Court.

In practice, the use that national courts of Member States are making of this varies considerably, despite the provision contained in Article 267 TFEU, which seeks uniformity in the interpretation and application of European Union law.

The purpose of the TJEU is to establish the principles of EU law, but leaves the application of these principles to the national courts, with it being the case that discerning the limits under which the TFEU or national courts must act are not clear on many occasions. A principle originating in EU law may be defined in terms that leave little or no discretion to national courts, or it may happen that the principle is so vaguely defined that it allows...