# C_2016118EN.01000601.xml

| 4.4.2016 | EN | Official Journal of the European Union | C 118/6 |
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4.4.2016

EN

Official Journal of the European Union

C 118/6

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Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 17 December 2015 — Asklepios Dienstleistungsgesellschaft mbH v Vittoria Graf

(Case C-681/15)

(2016/C 118/07)

Language of the case: German

Referring court

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Parties to the main proceedings

Appellant: Asklepios Dienstleistungsgesellschaft mbH

Appellant:

Respondent: Vittoria Graf

Respondent:

Questions referred

Questions referred

I.

| 1. | Does Article 3 of Council Directive 2001/23/EC of 12 March 2001 (1) preclude a provision of national law which provides that, in the event of a transfer of an undertaking or business, all conditions of employment agreed between the transferor and the employee, individually and in the exercise of their freedom of contract, in the contract of employment transfer to the transferee unaltered, as if he had himself agreed them in an individual contract with the employee, where national law provides for both consensual and unilateral adjustments by the transferee? |
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1.

Does Article 3 of Council Directive 2001/23/EC of 12 March 2001 (1) preclude a provision of national law which provides that, in the event of a transfer of an undertaking or business, all conditions of employment agreed between the transferor and the employee, individually and in the exercise of their freedom of contract, in the contract of employment transfer to the transferee unaltered, as if he had himself agreed them in an individual contract with the employee, where national law provides for both consensual and unilateral adjustments by the transferee?

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| 2. | If Question 1 is answered in the affirmative, either generally or for a defined group of individually agreed conditions of employment in the employment contract between the transferor and employee:
  Does the application of Article 3 of Directive 2001/23/EC have the effect that certain terms of the contract of employment between the transferor and the employee which have been agreed in the exercise of freedom of contract are to be excluded from being transferred unaltered to the transferee, and are to be adjusted simply by reason of the transfer of the undertaking or business? |
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2.

If Question 1 is answered in the affirmative, either generally or for a defined group of individually agreed conditions of employment in the employment contract between the transferor and employee:

Does the application of Article 3 of Directive 2001/23/EC have the effect that certain terms of the contract of employment between the transferor and the employee which have been agreed in the exercise of freedom of contract are to be excluded from being transferred unaltered to the transferee, and are to be adjusted simply by reason of the transfer of the undertaking or business?

| 3. | If, according to the Court of Justice’s answers to Questions 1 and 2, an individual provision which has been agreed in an individual contract, under which certain provisions in a collective agreement are, dynamically and in the exercise of freedom of contract, incorporated into the employment contract, is not transferred unaltered to the transferee:






  a) | Does this apply also where neither the transferor nor the transferee is party to a collective agreement or is affiliated to such a party, that is, where, even prior to the transfer of the undertaking or business, the provisions in the collective agreement would not have been applicable to the employment relationship with the transferor in the absence of the term referring to them in the agreement made, in the exercise of freedom of contract, in the contract of employment? |
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3.

If, according to the Court of Justice’s answers to Questions 1 and 2, an individual provision which has been agreed in an individual contract, under which certain provisions in a collective agreement are, dynamically and in the exercise of freedom of contract, incorporated into the employment contract, is not transferred unaltered to the transferee:

a)

Does this apply also where neither the transferor nor the transferee is party to a collective agreement or is affiliated to such a party, that is, where, even prior to the transfer of the undertaking or business, the provisions in the collective agreement would not have been applicable to the employment relationship with the transferor in the absence of the term referring to them in the agreement made, in the exercise of freedom of contract, in the contract of employment?

| b) | If the answer to that question is in the affirmative:
  Does this apply also if the transferor and the transferee are undertakings within the same group? |
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b)

If the answer to that question is in the affirmative:

Does this apply also if the transferor and the transferee are undertakings within the same group?

II.

Does Article 16 of the Charter of Fundamental Rights of the European Union preclude a national provision enacted to implement Directive 77/187/EEC (2) or Directive 2001/23/EC which provides that, in the event of a transfer of an undertaking or a business, the transferee is bound by the conditions of employment agreed individually and in the exercise of their freedom of contract by the transferor with the employee as if he had agreed them himself, even if these conditions incorporate certain provisions of a collective agreement, which would not otherwise apply to the employment contract, into the employment contract dynamically, in so far as national law provides for both consensual and unilateral adjustments by the transferee?

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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 2001 L 82, p. 16).

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(2)  Council Directive 77/187/EEC of 14 February 1977 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 businesses (OJ 1977 L 61, p. 26).

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