![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
Court of Justice of the European Communities (including Court of First Instance Decisions) |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Klarenberg (Approximation of laws) [2009] EUECJ C-466/07 (12 February 2009) URL: https://www.bailii.org/eu/cases/EUECJ/2009/C46607.html Cite as: Case C-466/07, [2009] EUECJ C-466/7, [2009] IRLR 301, [2009] EUECJ C-466/07, [2009] ICR 1263 |
[New search] [Printable version] [Buy ICLR report: [2009] ICR 1263] [Help]
(Social policy Directive 2001/23/EC Transfer of undertakings Safeguarding of employees' rights Concept of 'transfer' Legal transfer of a part of a business to another undertaking Organisational autonomy following the transfer)
In Case C-466/07,
REFERENCE for a preliminary ruling under Article 234 EC from the Landesarbeitsgericht Düsseldorf (Germany), made by decision of 10 August 2007, received at the Court on 22 October 2007, in the proceedings
Dietmar Klarenberg
Ferrotron Technologies GmbH,
composed of K. Lenaerts, President of the Chamber, T. von Danwitz, R. Silva de Lapuerta, G. Arestis and J. Malenovský (Rapporteur), Judges,
Advocate General: P. Mengozzi,
Registrar: H. von Holstein, Deputy Registrar,
having regard to the written procedure and further to the hearing on 4 September 2008,
after considering the observations submitted on behalf of:
Mr Klarenberg, by J. Dieker, Rechtsanwalt,
Ferrotron Technologies GmbH, by M. Trayer, Rechtsanwalt,
the German Government, by M. Lumma and C. Blaschke, acting as Agents,
Commission of the European Communities, by V. Kreuschitz and J. Enegren, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 6 November 2008,
gives the following
Legal context
Community legislation
'Considerations of legal security and transparency required that the legal concept of transfer be clarified in the light of the case-law of the Court of Justice. Such clarification has not altered the scope of Directive 77/187/EEC as interpreted by the Court of Justice.'
'(a) This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger.
(b) Subject to [point] (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.'
'The transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.'
'If the contract of employment or the employment relationship 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 or of the employment relationship.'
'If the undertaking, business or part of an undertaking or business preserves its autonomy, the status and function of the representatives or of the representation of the employees affected by the transfer shall be preserved on the same terms and subject to the same conditions as existed before the date of the transfer by virtue of law, regulation, administrative provision or agreement, provided that the conditions necessary for the constitution of the employee's representation are fulfilled.
...
If the undertaking, business or part of an undertaking or business does not preserve its autonomy, the Member States shall take the necessary measures to ensure that the employees transferred who were represented before the transfer continue to be properly represented during the period necessary for the reconstitution or reappointment of the representation of employees in accordance with national law or practice.'
National legislation
'In the event of a transfer of a business or part of a business to another employer as a result of a legal transaction, the latter shall assume the rights and obligations arising under employment contracts existing at the time of the transfer.'
The dispute in the main proceedings and the question referred for a preliminary ruling
'Is a part of an undertaking or business only transferred to another employer within the meaning of Article 1(1)(a) and (b) of Directive 2001/23 ... if, under the new employer, that part of the undertaking or business continues to operate as an organisationally autonomous part of an undertaking or business?'
Admissibility of the order for reference
The question referred for a preliminary ruling
Costs
On those grounds, the Court (Fourth Chamber) hereby rules:
Article 1(1)(a) and (b) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that that directive may also apply in a situation where the part of the undertaking or business transferred does not retain its organisational autonomy, provided that the functional link between the various elements of production transferred is preserved, and that that link enables the transferee to use those elements to pursue an identical or analogous economic activity, a matter which it is for the national court to determine.
[Signatures]
* Language of the case: German.