# C_2007211EN.01002502.xml

| 8.9.2007 | EN | Official Journal of the European Union | C 211/25 |
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8.9.2007

EN

Official Journal of the European Union

C 211/25

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Reference for a preliminary ruling from the Juzgado de lo Mercantil (Commercial Court) No 3 Barcelona lodged on 5 July 2007 — Kirtruna S. L. v Cristina Delgado Fernández de Heredia, Sergio Sabini Celio, Miguel Oliván Bascones, Red Elite de Electrodomésticos S.A. and Electro Calvet (or Calbet) S.A.

(Case C-313/07)

(2007/C 211/47)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil (Commercial Court) No 3 Barcelona

Parties to the main proceedings

Applicant: Kirtruna S. L.

Applicant:

Defendants: Cristina Delgado Fernández de Heredia, Sergio Sabini Celio, Miguel Oliván Bascones, Red Elite de Electrodomésticos S.A. and Electro Calbet (formerly Calvet) S.A.

Defendants:

Question(s) referred

| 1. | Should the guarantee, that the transferee who acquires a business in insolvency or a production unit of that business does not take on liability for debts arising out of employment contracts or other employment relationships provided that the insolvency proceedings give rise to protection at least equivalent to that provided for in Community directives, be considered to relate uniquely and exclusively to debts which are directly linked to employment contracts or other employment relationships, or, in the framework of an overall protection of the rights of employees and the safeguarding of employment, should that guarantee be extended to other contracts which are not strictly related to employment, but nonetheless affect the premises in which the business of the undertaking is carried out, or affect specific methods or instruments of production which are essential to the continuation of the business activity? |
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1.

Should the guarantee, that the transferee who acquires a business in insolvency or a production unit of that business does not take on liability for debts arising out of employment contracts or other employment relationships provided that the insolvency proceedings give rise to protection at least equivalent to that provided for in Community directives, be considered to relate uniquely and exclusively to debts which are directly linked to employment contracts or other employment relationships, or, in the framework of an overall protection of the rights of employees and the safeguarding of employment, should that guarantee be extended to other contracts which are not strictly related to employment, but nonetheless affect the premises in which the business of the undertaking is carried out, or affect specific methods or instruments of production which are essential to the continuation of the business activity?

| 2. | In the same context of guaranteeing the rights of the employees, can the purchaser of the productive unit obtain from the court which has charge of the insolvency and which authorises the award a guarantee not only in relation to rights which arise from the employment contracts but also in relation to other contracts and obligations of the insolvent party which are essential to guarantee the continuation of the business? |
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2.

In the same context of guaranteeing the rights of the employees, can the purchaser of the productive unit obtain from the court which has charge of the insolvency and which authorises the award a guarantee not only in relation to rights which arise from the employment contracts but also in relation to other contracts and obligations of the insolvent party which are essential to guarantee the continuation of the business?

| 3. | If a party acquires an insolvent business or a productive unit and gives an undertaking to safeguard all or some of the employment contracts, and accepts liability for them by subrogation, does that party obtain the guarantee that there will not be asserted against him or transferred to him either other debts of the transferor connected to the contracts or relationships where he accepts liability by subrogation, particularly tax contingencies or social security debts, or rights which may be exercised by the holders of rights and obligations arising from contracts entered into by the insolvent party and which are transferred to the acquirer as a package or as part of a productive unit? |
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3.

If a party acquires an insolvent business or a productive unit and gives an undertaking to safeguard all or some of the employment contracts, and accepts liability for them by subrogation, does that party obtain the guarantee that there will not be asserted against him or transferred to him either other debts of the transferor connected to the contracts or relationships where he accepts liability by subrogation, particularly tax contingencies or social security debts, or rights which may be exercised by the holders of rights and obligations arising from contracts entered into by the insolvent party and which are transferred to the acquirer as a package or as part of a productive unit?

| 4. | In brief, can Directive 23/2001 (1) be interpreted to mean that, as regards the transfer of productive units or businesses which have been judicially or administratively declared insolvent and in liquidation, not only are contracts of employment given protection, but so also are other contracts which have a direct and immediate effect on the safeguarding of those contracts? |
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4.

In brief, can Directive 23/2001 (1) be interpreted to mean that, as regards the transfer of productive units or businesses which have been judicially or administratively declared insolvent and in liquidation, not only are contracts of employment given protection, but so also are other contracts which have a direct and immediate effect on the safeguarding of those contracts?

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| 5. | The final question is whether the wording of Article 149(2) of the Ley Concursal (Spanish Law on Insolvency), when it refers to the transfer of an undertaking, is inconsistent with Article 5(2)(a) of Directive 23/2001 as cited above, to the extent that subrogation transfers to the transferee the obligations of the bankrupt or insolvent party relating to or associated with employment, notably the social security debts which might be unpaid by the insolvent company? |
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5.

The final question is whether the wording of Article 149(2) of the Ley Concursal (Spanish Law on Insolvency), when it refers to the transfer of an undertaking, is inconsistent with Article 5(2)(a) of Directive 23/2001 as cited above, to the extent that subrogation transfers to the transferee the obligations of the bankrupt or insolvent party relating to or associated with employment, notably the social security debts which might be unpaid by the insolvent company?

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

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