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Cite as: [1998] IRLR 333, [1997] ECR I-6907, [1997] EUECJ C-253/96, ECLI:EU:C:1997:585, EU:C:1997:585, [1998] 2 CMLR 131

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JUDGMENT OF THE COURT (Fifth Chamber)

4 December 1997 (1)

(Obligation to inform employees - Directive 91/533/EEC - Article 2(2)(c))

In Joined Cases C-253/96 to C-258/96,

REFERENCES to the Court under Article 177 of the EC Treaty by the Landesarbeitsgericht Hamm (Germany) for a preliminary ruling in the proceedings pending before that court between

Helmut Kampelmann and Others

and

Landschaftsverband Westfalen-Lippe (Cases C-253/96 to C-256/96),

between

Stadtwerke Witten GmbH

and

Andreas Schade (Case C-257/96)

and between

Klaus Haseley

and

Stadtwerke Altena GmbH (Case C-258/96)

on the interpretation of Article 2(2)(c) of Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ 1991 L 288, p. 32),

THE COURT (Fifth Chamber),

composed of: M. Wathelet (Rapporteur), President of the First Chamber, acting as President of the Fifth Chamber, J.C. Moitinho de Almeida, D.A.O. Edward, P. Jann and L. Sevón, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Mr Schmidt, applicant in the main proceedings in Cases C-253/96 to C-256/96, by H. Geil, Rechtsanwalt, Bielefeld,

- the Landschaftsverband (Regional Authority), Westfalen-Lippe, by K. Hahn, Rechtsanwalt, Cologne,

- Stadtwerke Witten GmbH and Stadtwerke Altena GmbH, by A. de Vivie, Assessor to the Kommunaler Arbeitgeberverband (Association of Municipal Employers), Nordrhein-Westfalen, acting as Agent,

- Mr Schade and Mr Haseley, by D. Krause, Secretary of the ÖTV trade union,

- the German Government, by E. Röder, Ministerialrat at the Federal Ministry of the Economy, acting as Agent,

- the United Kingdom Government, by L. Nicoll, of the Treasury Solicitor's Department, acting as Agent, assisted by S. Moore, Barrister, and

- the Commission of the European Communities, by M. Patakia, of its Legal Service, acting as Agent, assisted by G.M. Berrisch, Rechtsanwalt, Hamburg, and of the Brussels Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Tilsch, applicant in the main proceedings in Cases C-253/96 to C-256/96, represented by R. Blömke, Rechtsanwalt, Witten; of the Landschaftsverband Westfalen-Lippe, represented by K. Hahn; of Stadtwerke Witten GmbH and Stadtwerke Altena GmbH, represented by A. de Vivie; of Mr Schade and Mr Haseley, represented by D. Krause; and of the Commission, represented by G.M. Berrisch, at the hearing on 1 July 1997,

after hearing the Opinion of the Advocate General at the sitting on 9 October 1997,

gives the following

Judgment

By orders of 9 July 1996, received at the Court on 23 July 1996, the Landesarbeitsgericht (Regional Labour Court), Hamm, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a number of questions on the interpretation of Article 2(2)(c) of Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ 1991 L 288, p. 32; hereinafter 'the Directive').

Those questions were raised in a number of sets of proceedings, brought by Mr Kampelmann, Mr Tilsch, Mr Klingelhöfer and Mr Schmidt against the Landschaftsverband Westfalen-Lippe ('the Landschaftsverband') in Cases C-253/96 to C-256/96, by Stadtwerke Witten GmbH against Mr Schade in Case C-257/96 and by Mr Haseley against Stadtwerke Altena GmbH in Case C-258/96, concerning the employers' refusals to promote the employees to a higher grade on the ground that they had not proved that they had the required length of service in performing the work corresponding to the relevant level and degree of qualification, notwithstanding the written information to the contrary communicated to them by their employers several years earlier.

The Directive

According to the second recital in its preamble, the Directive is 'designed to provide employees with improved protection against possible infringements of their rights and to create greater transparency on the labour market'.

Article 2(1) provides that an employer shall be obliged to notify an employee to whom the Directive applies of the essential aspects of the contract or employment relationship. Article 2(2) lists the aspects to be covered, which include:

'(c) (i) the title, grade, nature or category of the work for which the employee is employed; or

(ii) a brief specification or description of the work;

...

(h) the initial basic amount, the other component elements and the frequency of payment of the remuneration to which the employee is entitled;

...'.

Article 2(3) provides: 'The information referred to in paragraph 2(f), (g), (h) and (i) may, where appropriate, be given in the form of a reference to the laws, regulations and administrative or statutory provisions or collective agreements governing those particular points.'

Under Article 3(1),

'The information referred to in Article 2(2) may be given to the employee, not later than two months after the commencement of employment, in the form of:

(a) a written contract of employment; and/or

(b) a letter of engagement; and/or

(c) one or more other written documents, where one of these documents contains at least all the information referred to in Article 2(2)(a), (b), (c), (d), (h) and (i).'

Article 6 specifies:

'This Directive shall be without prejudice to national law and practice concerning:

- the form of the contract or employment relationship,

- proof as regards the existence and content of a contract or employment relationship,

- the relevant procedural rules.'

Finally, under Article 9(1), the Member States were to adopt the provisions necessary to comply with the Directive no later than 30 June 1993. Article 9(2) adds:

'Member States shall take the necessary measures to ensure that, in the case of employment relationships in existence upon entry into force of the provisions that they adopt, the employer gives the employee, on request, within two months of receiving that request, any of the documents referred to in Article 3, supplemented, where appropriate, pursuant to Article 4(1).'

German law

The Directive was transposed into German law by the Nachweisgesetz (Law on notification of conditions governing an employment relationship) of 20 July 1995 (BGBl. I, p. 946).

Under Paragraph 2(1)(5) of that Law, which transposes Article 2(2)(c) of the Directive, the written notification must contain 'the designation or general description of the work to be done by the employee'.

In addition, Paragraph 4, which transposes Article 9(2) of the Directive, provides: 'Where the employment relationship was already in existence on the date on which this Law came into force, written notification as referred to in Paragraph 2 must be given to the employee at his request within a period of two months'. However, it also provides: 'That obligation does not apply where a previous written notification or a written contract of employment contains the information required by this Law'.

Cases C-253/96 to C-256/96

Mr Kampelmann, Mr Tilsch, Mr Klingelhöfer and Mr Schmidt are technicians employed by the Landschaftsverband, which is responsible for, inter alia, highway construction and maintenance in Westfalen-Lippe and for managing a number of the Land's highway services.

Each of them was notified in writing by the employer of his grade and category of activity. Some years later, in 1991 and 1992, they applied for promotion to a higher grade but their applications were refused by the Landschaftsverband on the ground that the previous assessment of their category of activity had been incorrect and that their work in fact corresponded to a lower category which did not qualify them for higher grading in accordance with the applicable collective agreements.

Mr Kampelmann, Mr Tilsch, Mr Klingelhöfer and Mr Schmidt then applied to the appropriate Arbeitsgericht (Labour Court) for a declaration establishing their advancement to a higher grade.

Those applications were dismissed on the ground, essentially, that the applicants had not provided proof that they had the necessary length of service in their grade and category of activity to qualify for advancement to a higher grade on the basis of satisfactory service, as sought. The Landschaftsverband's previous classification was considered irrelevant.

The applicants then appealed against those judgments to the Landesarbeitsgericht Hamm.

Cases C-257/96 and C-258/96

Mr Schade and Mr Haseley are employed respectively by Stadtwerke Witten and Stadtwerke Altena, which are public undertakings providing the energy supply services in the towns of Witten and Altena respectively.

They were informed - Mr Haseley in 1987 and Mr Schade in 1991 - by letters from their employers that they had been promoted to a higher grade on the salary scale. In 1992, however, their employers refused to take that classification into account for the purpose of advancement to a higher grade on the basis of satisfactory service, on the ground that their duties had been incorrectly assessed and could not qualify them for such advancement.

Mr Schade and Mr Haseley then applied to the appropriate Arbeitsgericht for a declaration establishing their advancement to a higher grade.

Mr Schade's application was granted. The Arbeitsgericht considered that the work he had performed required him both to possess detailed, wide-ranging specialized qualifications and to work without supervision, thus qualifying him for promotion to a higher grade.

Mr Haseley's application, however, was dismissed on the ground that he had not provided proof that the work he performed met the relevant criteria for the activity in the grade in question.

In both cases, an appeal was lodged with the Landesarbeitsgericht Hamm.

The national court's questions

Referring to Article 2(2) of the Directive, the Landesarbeitsgericht Hamm raises the question whether Community law does not here call for reversal of the burden
of proof, requiring the employer to prove, in the cases in the main proceedings, that the previous written notification of grading was incorrect. In the absence of such proof the employee would no longer, on that view, have to show that his duties did in fact correspond to the grade and category of activity initially notified but merely that the remaining requirements for advancement to a higher grade, in particular as regards minimum length of service, were met.

In those circumstances, the Landesarbeitsgericht Hamm decided to request a ruling by the Court on the following questions in Cases C-253/96 to C-256/96:

'1. In view of the objective stated in the preamble to Council Directive 91/533/EEC on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ 1991 L 288, p. 32), namely "to provide employees with improved protection against possible infringements of their rights and to create greater transparency on the labour market", is it the purpose of Article 2 of the said Directive to modify the burden of proof in the employee's favour, in that the list of minimum requirements in Article 2(2) is intended to ensure that the employee does not encounter difficulties of proof regarding the listed points when enforcing his contractual rights in employment-law disputes?

2. If the answer to Question 1 is in the affirmative: has Article 2(2)(c)(ii) of Directive 91/533 been directly applicable since 1 July 1993 against the State acting as an employer in private law because:

- the Federal Republic of Germany did not (completely) implement the Directive by 30 June 1993, the expiry date of the period for implementation,

- the abovementioned provision of the Directive is unconditional and can therefore be applied in national law without any further implementing act,

- the Directive confers upon the individual employee rights against the State acting as employer?

3. If the answer to Question 2 is in the affirmative: of the information which the employer is required to give under Article 2(2)(c)(ii) of Directive 91/533 concerning the "nature or category of the work" must the classification of the work be understood in the sense that, if the employee's grading according to the salary scheme under a collective agreement requires the criteria for a particular category of activity within a salary grade to be met, he must be able to see, from the notification of his grading in a particular
salary grade and category of activity, whether he is entitled to advancement to a higher grade on the basis of satisfactory service?

4. If the answer to Question 3 is in the affirmative: must the notification pursuant to Article 2(2)(c)(ii) of Directive 91/533 bind the employer in the sense that he is bound by the classification of the job as notified to the employee until such time as he proves that the grading was incorrect, or at least until he shows conclusively - for example in the form of a job assessment - that he graded the employee mistakenly or that the classification of the work has been lowered in the course of time or by amendment to the collective agreement?

5. If the answer to Question 4 is in the affirmative: is the implementation in German law of Article 9(2) of Directive 91/533 by the Nachweisgesetz of 20 July 1995 (BGBl. I, p. 946), to the effect that the employer has no obligation to give the employee written notification in the case of an employment relationship in existence when that Law came into force, "where a previous written notification or a written contract of employment contains the information required" (Paragraph 4, second sentence, of the Nachweisgesetz), to be regarded as in conformity with Community law, with the consequence that such earlier notifications which satisfy the requirements of the Directive, whether it has been implemented or whether, in the absence of implementation, it is directly applicable, continue to be valid, so that, if the employer gives a more recent written notification - in the present case, in the course of proceedings - which conflicts with the earlier one, he must prove that the later notification is correct?'

In Cases C-257/96 and C-258/96, the Landesarbeitsgericht Hamm also referred five questions to the Court, the first three of which are identical to the first three set out above.

The fourth question in those two cases, however, is worded as follows:

'If the answer to Question 3 is in the affirmative: where notification is given pursuant to Article 2(2)(c)(ii) of Directive 91/533, stating that the employee is classified in a specific grade on a salary scale containing so-called build-up categories of activity, all employees in which are required to possess thorough and wide-ranging specialized qualifications, the difference being only in the degree to which they work without supervision, does it have the effect of enabling the employee to rely on the employer's notification concerning his grading so that he is no longer obliged to assert and prove that he possesses such thorough and wide-ranging specialized qualifications, but merely has to show that he works without supervision to the degree necessary in order to qualify for inclusion in the higher grade sought, if, in order to be classified in the salary grade notified by the employer, he is required to possess thorough and wide-ranging specialized qualifications?'

The fifth question in Case C-258/96 is identical to the fifth question set out above. In Case C-257/96, however, it is phrased in slightly different terms from the question in the other cases:

'If the answer to Question 4 is in the affirmative: is the implementation in German law of Article 9(2) of Directive 91/533 by the Nachweisgesetz of 20 July 1995 (BGBl. I, p. 946), to the effect that the employer has no obligation to give the employee written notification in the case of an employment relationship in existence when that Law came into force, "where a previous written notification or a written contract of employment contains the information required" (Paragraph 4, second sentence, of the Nachweisgesetz), to be regarded as in conformity with Community law, with the consequence that such earlier notifications which satisfy the requirements of the Directive, whether it has been implemented or whether, in the absence of implementation, it is directly applicable, continue to be valid, so that, if the employer gives a more recent written notification - in the present case, notification of a different date of commencement of the period of satisfactory service - which conflicts with the earlier one, he must prove that the later notification is correct?'

It is apparent from the case-files that these disputes, with the exception of Case C-257/96, derive from the employers' refusal, prior to the date by which the Directive was to be transposed, to promote the employees concerned, notwithstanding the grade and category of activity of which those employers had given them written notification several years previously. Furthermore, with the exception of Cases C-254/96 and C-257/96, the proceedings before the national courts were also commenced before that date. In those circumstances, it is for the referring court to determine whether, under national law, the Directive may or must be applied in settling the disputes.

The first and fourth questions

By its first and fourth questions, which should be considered together, the national court wishes to know whether the notification referred to in Article 2(1) of the Directive, in so far as it informs an employee of the essential aspects of the contract or employment relationship and, in particular, of the points listed in Article 2(2)(c), is binding on the employer until such time as he has proved that it was incorrect.

It should be noted at the outset that under Article 6 of the Directive, national rules concerning the burden of proof are not to be affected, as such, by the Directive.

On the other hand, Article 2(1) of the Directive requires the employer, for the purposes set out in the second recital in the preamble, to notify an employee of the
essential aspects of the contract or employment relationship, as set out in Article 2(2).

That objective would not be achieved if the employee were unable in any way to use the information contained in the notification referred to in Article 2(1) as evidence before the national courts, particularly in disputes concerning essential aspects of the contract or employment relationship.

The national courts must therefore apply and interpret their national rules on the burden of proof in the light of the purpose of the Directive, giving the notification referred to in Article 2(1) such evidential weight as to allow it to serve as factual proof of the essential aspects of the contract of employment or employment relationship, enjoying such presumption as to its correctness as would attach, in domestic law, to any similar document drawn up by the employer and communicated to the employee.

Since, however, the Directive does not itself lay down any rules of evidence, proof of the essential aspects of the contract or employment relationship cannot depend solely on the employer's notification under Article 2(1). The employer must therefore be allowed to bring any evidence to the contrary, by showing that the information in the notification is either inherently incorrect or has been shown to be so in fact.

The answer to the national court's first and fourth questions must therefore be that the notification referred to in Article 2(1) of the Directive, in so far as it informs an employee of the essential aspects of the contract or employment relationship and, in particular, of the points listed in Article 2(2)(c), enjoys the same presumption as to its correctness as would attach, in domestic law, to any similar document drawn up by the employer and communicated to the employee. The employer must none the less be allowed to bring any evidence to the contrary, by showing that the information in the notification is either inherently incorrect or has been shown to be so in fact.

The second question

It is clear from the second question that the referring court wishes in substance to know whether individuals may rely on Article 2(2)(c) of the Directive directly before the national courts.

It has consistently been held that a provision in a directive has direct effect if it appears, as far as its subject-matter is concerned, to be unconditional and sufficiently precise (Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53).

In the present case, Article 2(2)(c) of the Directive clearly and unequivocally lists a number of the essential aspects of the contract of which an employer is obliged to notify an employee, namely 'the title, grade, nature or category of the work for which the employee is employed' or 'a brief specification or description of the work'.

The fact that that provision allows the Member State to choose between two categories of information to be notified to the employee does not render it impossible to determine with sufficient precision, on the basis of the provisions of the Directive alone, the content of the rights thus conferred on individuals, the scope of which is not in the discretion of the Member State whichever choice it makes (see Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357, paragraph 17).

The provisions in question here are unconditional and sufficiently precise to enable individuals to rely on them directly before the national courts either where the Member State has failed to transpose the Directive into national law within the prescribed period or where it has not done so correctly.

In the present case, the Directive was transposed into German law by a Law of 20 July 1995. Between the date by which it should have been transposed and 20 July 1995, individuals were entitled to rely on the relevant provisions of the Directive directly before the national courts in order to enforce, as a minimum level of guarantee, the rights which the Directive attaches to one or other of the categories of information to be notified to the employee by virtue of Article 2(2)(c).

Since the date on which it was transposed, individuals can no longer rely on those provisions unless the national implementing measures are incorrect or inadequate in the light of the Directive.

In that regard, the Landschaftsverband, the German Government and the Commission have pointed out that the German legislature chose the option in Article 2(2)(c)(ii) of the Directive by requiring the employer to give written notification of 'the designation or general description of the work to be done by the employee'.

Under that second option in Article 2(2)(c) of the Directive, the employer must give the employee a brief specification or description of the work in the notification. However, the mere designation of an activity cannot in every case amount to even a brief specification or description of the work done by an employee.

Consequently, individuals may rely on Article 2(2)(c)(ii) of the Directive directly before the national courts, even after the entry into force of the implementing Law.

In addition, it has consistently been held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual (see, inter alia, Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 20). It may, however, be relied on against organizations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals, such as local or regional authorities or other bodies which, irrespective of their legal form, have been given responsibility, by the public authorities and under their supervision, for providing a public service (Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839, paragraph 31, and Case C-188/89 Foster and Others v British Gas [1990] ECR I-3313, paragraph 19).

In the light of the foregoing, the answer to the second question must be that individuals may rely on Article 2(2)(c) of the Directive directly before the national courts as against the State and any organizations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals, either where the State has failed to transpose the Directive into national law within the prescribed period or where it has not done so correctly. It is not open to a Member State to transpose Article 2(2)(c)(ii) of the Directive in such a way as to allow the employer, in every case, to confine the information to be notified to the employee to a mere job designation.

The third question

By its third question, the referring court asks the Court to interpret the expression 'nature or category of the work' in Article 2(2)(c)(i) of the Directive.

Since, as stated at paragraph 43 above, the German legislature has opted for the aspects in Article 2(2)(c)(ii) of the Directive, there is no need to answer the third question (see, inter alia, Case 126/80 Salonia v Poidomani and Baglieri [1981] ECR 1563, paragraph 6, and Case 166/84 Thomasdünger v Oberfinanzdirektion Frankfurt am Main [1985] ECR 3001, paragraph 11).

The fifth question

By its fifth question, the referring court asks in substance whether Article 9(2) of the Directive must be interpreted as authorizing the Member States to exempt an employer from the obligation to give an employee written notification of the essential aspects of the contract or employment relationship, even at the employee's request, when those aspects are already set out in a document or contract of employment drawn up before the measures transposing the Directive entered into force.

Under Article 9(2), Member States are to take the necessary measures to ensure that, in the case of employment relationships in existence upon entry into force of the measures transposing the Directive, the employer gives the employee, on request, the documents containing the information referred to in Article 2(2).

A national provision, such as Paragraph 4 of the Nachweisgesetz, which exempts an employer from the obligation to inform an employee, even if the employee has requested the information, in a situation where there is a pre-existing document or contract containing the essential aspects referred to in the Directive, is compatible with Article 9(2). In view of the aim which that provision seeks to achieve, no purpose would be served by requiring the employer to give fresh notification of the essential aspects of a pre-existing employment relationship or contract, after the measures transposing the Directive had entered into force, when those aspects have already been notified to the employee in question and have not changed.

The answer to the fifth question must therefore be that Article 9(2) of the Directive, properly construed, does not preclude the Member States from exempting an employer from the obligation to give an employee written notification of the essential aspects of the contract or employment relationship, even at the employee's request, when those aspects are already set out in a document or contract of employment drawn up before the measures transposing the Directive entered into force.

Costs

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Landesarbeitsgericht Hamm by orders of 9 July 1996, hereby rules:

1. The notification referred to in Article 2(1) of Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship, in so far as it informs an employee of the essential aspects of the contract or employment relationship and, in particular, of the points listed in Article

2(2)(c), enjoys the same presumption as to its correctness as would attach, in domestic law, to any similar document drawn up by the employer and communicated to the employee. The employer must none the less be allowed to bring any evidence to the contrary, by showing that the information in the notification is either inherently incorrect or has been shown to be so in fact.

2. Individuals may rely on Article 2(2)(c) of Directive 91/533 directly before the national courts as against the State and any organizations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals, either where the State has failed to transpose the Directive into national law within the prescribed period or where it has not done so correctly. It is not open to a Member State to transpose Article 2(2)(c)(ii) of the Directive in such a way as to allow the employer, in every case, to confine the information to be notified to the employee to a mere job designation.

3. Article 9(2) of the Directive, properly construed, does not preclude the Member States from exempting an employer from the obligation to give an employee written notification of the essential aspects of the contract or employment relationship, even at the employee's request, when those aspects are already set out in a document or contract of employment drawn up before the measures transposing the Directive entered into force.

WatheletMoitinho de Almeida Edward

Jann Sevón

Delivered in open court in Luxembourg on 4 December 1997.

R. Grass C. Gulmann

Registrar President of the Fifth Chamber

1: Language of the case: German.