# C_2022148EN.01000902.xml

| 4.4.2022 | EN | Official Journal of the European Union | C 148/9 |
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4.4.2022

EN

Official Journal of the European Union

C 148/9

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Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 10 November 2021 — Strong Charon, Soluções de Segurança, S.A. v 2045-Empresa de Segurança, S.A., FL

(Case C-675/21)

(2022/C 148/13)

Language of the case: Portuguese

Referring court

Supremo Tribunal de Justiça

Parties to the main proceedings

Appellant: Strong Charon, Soluções de Segurança, S.A.

Respondents: 2045 — Empresa de Segurança, S.A., FL

Questions referred

| 1. | Can the lack of a contractual link between successive service providers still be said to be an indication that there has not been a transfer within the meaning of Directive 2001/23/EC, (1) notwithstanding that, like the other factors, this is not in itself decisive and must not be considered in isolation (judgment of 11 March 1997, Ayse Süzen, C-13/95, paragraph 11)? (2) |
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1.

Can the lack of a contractual link between successive service providers still be said to be an indication that there has not been a transfer within the meaning of Directive 2001/23/EC, (1) notwithstanding that, like the other factors, this is not in itself decisive and must not be considered in isolation (judgment of 11 March 1997, Ayse Süzen, C-13/95, paragraph 11)? (2)

| 2. | In the context of an activity such as private security services at industrial facilities, in which the new provider has taken over only one of the four employees that had formed part of the economic unit (and did not therefore take over the majority) and there is no factual basis for concluding that the employee in question possessed specific skills and knowledge such as to support the assertion that, in terms of skills, an essential part of the staff has been transferred to the new provider and no intangible assets have been transferred, may it be concluded that there is no transfer of an economic entity, even in the case where the customer continues to make certain equipment (alarms, closed-circuit television, computer) available to the new service provider, given, on the one hand, the relatively low economic value of the investment which that equipment represents in the operation as a whole, and, on the other hand, the fact that it would not have been sensible, from an economic point of view (judgment of 27 February 2020, Grafe and Pohle, C-298/18, paragraph 32), (3) to require the customer to replace it? |
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2.

In the context of an activity such as private security services at industrial facilities, in which the new provider has taken over only one of the four employees that had formed part of the economic unit (and did not therefore take over the majority) and there is no factual basis for concluding that the employee in question possessed specific skills and knowledge such as to support the assertion that, in terms of skills, an essential part of the staff has been transferred to the new provider and no intangible assets have been transferred, may it be concluded that there is no transfer of an economic entity, even in the case where the customer continues to make certain equipment (alarms, closed-circuit television, computer) available to the new service provider, given, on the one hand, the relatively low economic value of the investment which that equipment represents in the operation as a whole, and, on the other hand, the fact that it would not have been sensible, from an economic point of view (judgment of 27 February 2020, Grafe and Pohle, C-298/18, paragraph 32), (3) to require the customer to replace it?

| 3. | If ‘that question ha[s] to be assessed in actual fact by the national court in the light of the criteria laid down by the Court (judgment of 7 August 2018, Colino Sigüenza, C-472/16, paragraph 45; (4) judgment in Grafe and Pohle, paragraph 27), as well as the objectives pursued by Directive 2001/23, as set out, inter alia, in recital 3 thereof’, must account be taken of the fact that ‘Directive 2001/23 does not aim solely to safeguard the interests of employees in the event of transfer of an undertaking, but seeks to ensure a fair balance between the interests of those employees, on the one hand, and those of the transferee, on the other’ (paragraph 26 of the judgment in ISS Facility Services NV of 26 March 2020, Case C-344/18, (5) which in turn contains the statement already made in the judgment in Alemo-Herron of 18 July 2013, C-426/11, paragraph 25)? (6) |
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3.

If ‘that question ha[s] to be assessed in actual fact by the national court in the light of the criteria laid down by the Court (judgment of 7 August 2018, Colino Sigüenza, C-472/16, paragraph 45; (4) judgment in Grafe and Pohle, paragraph 27), as well as the objectives pursued by Directive 2001/23, as set out, inter alia, in recital 3 thereof’, must account be taken of the fact that ‘Directive 2001/23 does not aim solely to safeguard the interests of employees in the event of transfer of an undertaking, but seeks to ensure a fair balance between the interests of those employees, on the one hand, and those of the transferee, on the other’ (paragraph 26 of the judgment in ISS Facility Services NV of 26 March 2020, Case C-344/18, (5) which in turn contains the statement already made in the judgment in Alemo-Herron of 18 July 2013, C-426/11, paragraph 25)? (6)

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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).

(2)  EU:C:1997:141.

(3)  EU:C:2020:121.

(4)  EU:C:2018:646.

(5)  EU:C:2020:239.

(6)  EU:C:2013:521.

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