# C_2017300EN.01000701.xml

| 11.9.2017 | EN | Official Journal of the European Union | C 300/7 |
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11.9.2017

EN

Official Journal of the European Union

C 300/7

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Judgment of the Court (Eighth Chamber) of 20 July 2017 (request for a preliminary ruling from the Tribunal Judicial da Comarca de Faro — Portugal) — Luís Manuel Piscarreta Ricardo v Portimão Urbis, E.M., SA, in liquidation, Município de Portimão, Emarp — Empresa Municipal de Águas e Resíduos de Portimão, EM, SA

(Case C-416/16) (1)

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((Reference for a preliminary ruling - Directive 2001/23 - Article 1(1)(b) - Article 2(1)(d) - Transfer of undertakings - Safeguarding of employees’ rights - Scope - Concepts of ‘employees’ and ‘transfer of a business’))

(2017/C 300/09)

Language of the case: Portuguese

Referring court

Referring court

Tribunal Judicial da Comarca de Faro

Parties to the main proceedings

Parties to the main proceedings

Applicant: Luís Manuel Piscarreta Ricardo

Applicant:

Defendants: Portimão Urbis, E.M., SA, in liquidation, Município de Portimão, Emarp — Empresa Municipal de Águas e Resíduos de Portimão, EM, SA

Defendants:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 1(1) 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 to the effect that, where a municipal undertaking, whose sole shareholder is a municipality, is wound up by a decision of the municipality’s executive body and its activities are transferred in part to the municipality to be carried on directly by it and in part to another municipal undertaking re-formed for that purpose, whose sole shareholder is also that same municipality, that situation falls within the scope of the directive, provided that the identity of the undertaking in question is preserved after the transfer, which is a matter for the referring court to determine. |
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1.

Article 1(1) 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 to the effect that, where a municipal undertaking, whose sole shareholder is a municipality, is wound up by a decision of the municipality’s executive body and its activities are transferred in part to the municipality to be carried on directly by it and in part to another municipal undertaking re-formed for that purpose, whose sole shareholder is also that same municipality, that situation falls within the scope of the directive, provided that the identity of the undertaking in question is preserved after the transfer, which is a matter for the referring court to determine.

| 2. | A person such as the applicant in the main proceedings who, because his employment contract is suspended, is not actually performing his duties, is covered by the concept of ‘employee’ within the meaning of Article 2(1)(d) of Directive 2001/23 in so far as that person is protected as an employee under the national law concerned, which is, however, a matter for the referring court to verify. Subject to that verification, in circumstances such as those at issue in the main proceedings, the rights and obligations arising from that person’s employment contract must be considered to have been transferred to the transferee, in accordance with Article 3(1) of the directive. |
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2.

A person such as the applicant in the main proceedings who, because his employment contract is suspended, is not actually performing his duties, is covered by the concept of ‘employee’ within the meaning of Article 2(1)(d) of Directive 2001/23 in so far as that person is protected as an employee under the national law concerned, which is, however, a matter for the referring court to verify. Subject to that verification, in circumstances such as those at issue in the main proceedings, the rights and obligations arising from that person’s employment contract must be considered to have been transferred to the transferee, in accordance with Article 3(1) of the directive.

| 3. | The third question raised by the Tribunal Judicial da Comarca de Faro (District Court, Faro, Portugal) is inadmissible. |
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3.

The third question raised by the Tribunal Judicial da Comarca de Faro (District Court, Faro, Portugal) is inadmissible.

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(1)  OJ C 383, 17.10.2016.

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