From: news@paragraf.nbg.sub.org
Newsgroups: de.soc.recht
Subject: JUS 9241.5.1 Social policy, employment  
Date: Sat, 19 Dec 92 17:32:31 +0100
Organization: VDJ Nuernberg

ENR   : 2511
HD    : 5. Social Policy, employment
TI    : Judgment of the Court of Justice - Directive 77/187/EEC - safeguard of
        employees' rights in the case of transfers of undertakings
RF    : JUS 9241.5.1
AB    : Council Directive 77/187/EEC approximates the laws of the Member
        States relating to the safeguard of employees' rights in the event
        of transfers of undertakings, businesses or parts of businesses (OJ
        1977 no L 61, p. 26). Further to an agreement made on 2 December
        1988, Philips A/S entrusted the management of four cafeterias for
        Philips personnel to the company ISS. The agreement stipulated,
        among other things, that ISS would hire the personnel permanently
        employed by Philips in its cafeterias, at the same terms of salary
        and seniority.
        A dispute opposing two employees of Philips (who had been hired by
        ISS) and ISS was brought before a Danish court which referred to
        the Court of Justice for a number of preliminary rulings notably
        concerning:
        - whether Directive 77/187/EEC applies in the case where
        undertaking A takes charge of the management of a cafeteria of
        undertaking B, for remuneration and various advantages the terms
        of which are determined by an agreement between these two companies;
        - whether modifying the date of payment of the workers in question
        and/or modifying the components of the salary of those workers,
        although the total salary remains the same, is contrary to Directive
        77/187/EEC. With regard to the first question, the Court of Justice
        recalled that Directive 77/187/EEC applies to any change, in the
        context of contractual relations, in the natural or legal person
        responsible for the operation of an undertaking who, as a result,
        contracts obligations as an employer for employees of the undertaking;
        whether the ownership of the undertaking is transferred is immaterial.
        The Court specified that the protection provided by the directive
        also applies in the case of a transfer concerning a business or a
        part of a business (i.e. a part of the undertaking). This is the
        case, the Court added, for an entrepreneur who enters into an
        agreement to entrust the responsibility of a service of his
        undertaking, such as a cafeteria, to another entrepreneur who
        therefore takes on the employer's obligations with regard to the
        employees working in that service. The Court concluded that in
        virtue of Article 1 (1) of Directive 77/187/EEC, the directive can
        apply to a situation where the entrepreneur entrusts the
        responsibility of operating a service for its personnel, which had
        previously been managed directly, to another entrepreneur in
        exchange for remuneration and various advantages the terms of which
        are determined by an agreement between the two companies.
        As concerns the second question asked by the Danish court, the
        Court noted that, pursuant to Article 3 of Directive 77/187/EEC,
        the terms of the contract or the working relationship pertaining
        to the salary, notably the date of payment and the components of
        the salary, cannot be changed at the time of the transfer, even if
        the total salary remains unchanged. However, the Court specified
        that the Directive is not opposed to a modification of the working
        relationship with the new undertaking in so far as the applicable
        national law accepts the modification outside of the context of a
        transfer of an undertaking.
        Judgment of the Court of Justice of 12 November 1992, case C-209/91
        A. Watson Rask and K. Christensen, not yet published.
CT    : Social policy; Employment
DT    : 921204
Newsgroups: de.soc.recht