# C_2014175EN.01003001.xml

| 10.6.2014 | EN | Official Journal of the European Union | C 175/30 |
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10.6.2014

EN

Official Journal of the European Union

C 175/30

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Request for a preliminary ruling from the Varas Cíveis de Lisboa (5a Vara Cível) (Portugal) lodged on 4 April 2014 — João Filipe Ferreira da Silva e Brito and Others v Portuguese State

a

(Case C-160/14)

2014/C 175/37

Language of the case: Portuguese

Referring court

Referring court

Varas Cíveis de Lisboa

Parties to the main proceedings

Parties to the main proceedings

Applicants: João Filipe Ferreira da Silva e Brito and Others

Applicants:

Defendant: Portuguese State

Defendant:

Questions referred

Questions referred

| 1. | Must 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, (1) in particular Article 1(1) thereof, be interpreted as meaning that the concept of a ‘transfer of a business’ encompasses a situation in which an undertaking active on the charter flights market is wound up by decision of its majority shareholder, itself an undertaking active in the aviation sector and, in the context of the winding up, the parent company:






  (i)- | replaces the company being wound up under aircraft leasing contracts and ongoing charter flight contracts with tour operators; |
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1.

Must 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, (1) in particular Article 1(1) thereof, be interpreted as meaning that the concept of a ‘transfer of a business’ encompasses a situation in which an undertaking active on the charter flights market is wound up by decision of its majority shareholder, itself an undertaking active in the aviation sector and, in the context of the winding up, the parent company:

1

(i)-

replaces the company being wound up under aircraft leasing contracts and ongoing charter flight contracts with tour operators;

| (ii)- | carries out activities previously pursued by the company being wound up; |
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(ii)-

carries out activities previously pursued by the company being wound up;

| (iii)- | re-employs some workers until that point employed by the company being wound up and engages them to perform identical tasks; |
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(iii)-

re-employs some workers until that point employed by the company being wound up and engages them to perform identical tasks;

| (iv)- | receives small equipment from the company being wound up? |
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(iv)-

receives small equipment from the company being wound up?

| 2. | Must Article 267 (formerly Article 234 [EC]) TFEU be interpreted as meaning that, in the light of the facts set out in the preceding question and the fact that the lower national courts adjudicating on the case adopted contradictory decisions, the Supremo Tribunal de Justiça was under an obligation to refer to the Court of Justice of the European Union for a preliminary ruling the question of the correct interpretation of the concept of a ‘transfer of a business’ within the meaning of Article 1(1) of Directive 2001/23/EC? |
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2.

Must Article 267 (formerly Article 234 [EC]) TFEU be interpreted as meaning that, in the light of the facts set out in the preceding question and the fact that the lower national courts adjudicating on the case adopted contradictory decisions, the Supremo Tribunal de Justiça was under an obligation to refer to the Court of Justice of the European Union for a preliminary ruling the question of the correct interpretation of the concept of a ‘transfer of a business’ within the meaning of Article 1(1) of Directive 2001/23/EC?

| 3. | Do Community law, in particular, the principles laid down by the Court of Justice in Köbler
   (2) on State liability for loss or damage caused to individuals as a result of an infringement of Community law by a national court adjudicating at last instance preclude the application of a national provision which makes a claim for damages against the State conditional upon the adverse decision having first been set aside? |
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3.

Do Community law, in particular, the principles laid down by the Court of Justice in Köbler
   (2) on State liability for loss or damage caused to individuals as a result of an infringement of Community law by a national court adjudicating at last instance preclude the application of a national provision which makes a claim for damages against the State conditional upon the adverse decision having first been set aside?

Köbler

2

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(1)  OJ 2001 L 82, p. 16.

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(2)  C-224/01, EU:C:2003:513

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