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EMIL RUFFER
CYIL 4 ȍ2013Ȏ
Article 1(2)(b).
27
The Court found that the situation presented clearly fell outside the
scope of Directive 98/59/EC, which was the main element for refusal of its jurisdiction:
“Therefore, it must be held that, by virtue of the exclusion laid down by Article
1(2)(b) of Directive 98/59, the dismissal of staff of a military base does not, in
any event, fall within the scope of that directive, irrespective of whether or not
it is a military base belonging to a non-member State. In those circumstances,
it is not necessary specifically to take into account the fact that, in this case, it
was a military base belonging to a non-member State, that question having
implications in international law.”
28
However, before finally declining the jurisdiction to rule on the preliminary
reference, the CJEU further pointed out that an interpretation of provisions of
EU law in situations outside its scope is justified where those provisions have been
made applicable to such situations by national law in a direct and unconditional way
in order to ensure that internal situations and situations governed by EU law are
treated in the same way. In other words, the Court had to verify whether it was clear
from sufficiently precise indications that the provisions of Directive 98/59/EC were
made applicable, by national transposition law, in a direct and unconditional way to
situations which did not fall within the scope of that directive.
29
At this stage, the Court used the concept of jurisdictional immunity of States as
a supporting argument and stated:
“In that respect, it is clear from the order for reference that, if the United States of
America had so decided in the preliminary phase of the main proceedings,
they
could have relied on their immunity as a sovereign State and avoided
the main proceedings
.
”
30
The CJEU also added that under Section 188(7) of the 1992 Act, a non-member
State has the possibility of invoking ‘special circumstances’, by reason of which that
non-member State is not required to carry out the obligatory consultations in the
case of collective redundancies.
31
This led the Court to the unequivocal conclusion
that there are no sufficiently precise indications that national law made the solutions
adopted by Directive 98/59/EC automatically applicable in a situation outside of the
scope of that directive, and it ruled that it had no jurisdiction to reply to the question
raised by the Court of Appeal.
32
It appears that the United States raised the jurisdictional immunity claim before
the national court (Southampton Employment Tribunal) out of time, because it was
27
By virtue of Article 1(2)(b) of Directive 98/59/EC, its provisions do not apply to workers employed by
public administrative bodies or by establishments governed by public law or, in Member States where
that concept is unknown, by equivalent bodies.
28
C-583/10
Nolan
, para. 43.
29
ibid
., paras. 47-48.
30
ibid
., para. 49 (emphasis added).
31
ibid
., para. 50.
32
ibid
., para. 57.