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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Delahaye (Social policy) [2004] EUECJ C-425/02 (11 November 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C42502.html Cite as: [2005] IRLR 61, [2004] EUECJ C-425/02, [2004] EUECJ C-425/2 |
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JUDGMENT OF THE COURT (Second Chamber)
11 November 2004 (1)
(Safeguarding of employees' rights in the event of a transfer of an undertaking to the State - Possibility for the State to impose rules of public law - Reduction of the amount of remuneration)
In Case C-425/02,REFERENCE for a preliminary ruling under Article 234 EC from the Cour administrative (Luxembourg), made by decision of 21 November 2002, received at the Court on 25 November 2002, in the proceedings Johanna Maria Boor, née Delahaye,v
Ministre de la Fonction publique et de la Réforme administrative,THE COURT (Second Chamber),
after hearing the Opinion of the Advocate General at the sitting on 17 June 2004,
gives the following
-This Directive shall apply to the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger.-
-For the purposes of this Directive:- (b) -transferee- means any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), becomes the employer in respect of the undertaking, business or part of the business; --
-1. The transferor-s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer within the meaning of Article 1(1) shall, by reason of such transfer, be transferred to the transferee.-2. Following the transfer within the meaning of Article 1(1), the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.Member States may limit the period for observing such terms and conditions, with the proviso that it shall not be less than one year.-
-1. The transfer of an undertaking, business or part of a business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.-2. If the contract of employment or the employment relationship is terminated because the transfer within the meaning of Article 1(1) involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment or of the employment relationship.-
National legislation
-1. If any change arises in the legal situation of the employer, in particular by reason of succession, sale, merger, transformation of business assets or incorporation, all contracts of employment in force on the date of that change shall continue to exist between the new employer and the employees of the undertaking.2. A transfer of the undertaking as a result inter alia of a legal transfer or merger shall not in itself constitute grounds for dismissal by the transferor or the transferee.If the contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment.--
-Any change to the detriment of the employee relating to an essential term of the contract of employment must, in order not to be void, be notified to the employees in the forms and within the time-limits referred to in Article 19 and 20 and must state the date from which it takes effect. In such a case the employee may ask the employer for the reasons for the change and the employer is obliged to state those reasons in the forms and within the time-limits laid down in Article 22.-A termination of the contract of employment following from the employee-s refusal to accept the change notified to him shall constitute a dismissal against which the legal proceedings referred to in Article 28 may be brought.-
-Having regard to the provisions of Directives 77/187/EEC, 98/50/EC and 2001/23/EC identified herein, in the event of the transfer of an undertaking from a non-profit-making association, which is a legal person under private law, to the State as transferee, is it permissible for the transferor-s rights and obligations to be taken over only in so far as they are compatible with the State-s own rules of public law, in particular in the field of remuneration, where the detailed provisions and amounts of compensation are laid down by Grand-Ducal regulation, bearing in mind that the status of public sector employee confers legal benefits in the fields of, inter alia, career development and job stability on the employees concerned, and that, in the event of disagreement as regards -substantial changes- to the employment relationship within the meaning of Article 4(2) of those directives, the employees concerned retain the right to request termination of that relationship according to the detailed rules in the relevant provisions?-
1 - Language of the case: French.