Opinion of the Advocate General — ECLI:EU:C:2010:255
Date: 2010-05-06
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

summary publication), paragraph 50). 40 It should, first, be borne in mind that Directive 2001/23 is intended to safeguard the rights of employees in the event of a change of employer by allowing them to continue to work for the new employer on the same conditions as those agreed with the transferor (see, inter alia, Case 324/86 Foreningen af Arbejdsledere i Danmark [1988] ECR 739, paragraph 9; Case C‑499/04 Werhof [2006] ECR I‑2397, paragraph 25; and Case C‑396/07 Juuri [2008] ECR I‑8883, paragraph 28). The right of employees to be represented is not an exception. It follows that, as a general rule, that representation must not be affected by the transfer. 41 The first subparagraph of Article 6(1) of Directive 2001/23, containing the general rule on the representation of employees, provides that, if the undertaking, business or part of an undertaking or business preserves its autonomy, the status and function of the representatives or of the representation of the employees affected by the transfer are to be preserved, on the same terms and subject to the same conditions as before the date of the transfer. 42 Next, it must be observed that the word ‘autonomy’, according to its usual meaning in everyday language, describes the right of self‑government. 43 Applied to an economic entity, the term means the powers, granted to those in charge of that entity, to organise, relatively freely and independently, the work within that entity in the pursuit of its specific economic activity and, more particularly, the powers to give orders and instructions, to allocate tasks to employees of the entity concerned and to determine the use of assets available to the entity, all without direct intervention from other organisational structures of the employer (‘the organisational powers’). 44 Consequently, autonomy is as a general rule preserved, within the meaning of the first subparagraph of Article 6(1) of Directive 2001/23, if, after the transfer, the organisational powers of those in charge of the entity transferred remain, within the organisational structures of the transferee, essentially unchanged as compared with the situation pertaining before the transfer. 45 Accordingly, in those circumstances, the right of employees to be represented must, as a general rule, be exercised on the same terms and subject to the same conditions as before the transfer. 46 By contrast, in a situation in which those in charge of the employees are, following the transfer, persons whose organisational powers have been reduced and can no longer be described as autonomous, the interests of those employees are therefore no longer the same and, consequently, the terms and conditions of their representation must be adapted to the changes which have occurred. For that reason, as is clear from the fourth subparagraph of Article 6(1) of Directive 2001/23, the term of office of the representatives of the employees affected by the transfer must, in such circumstances, be restricted to merely the period required for the reconstitution or reappointment of the representation of employees. 47 As regards the possibility of there being a redistribution of some organisational powers within the entity transferred, that is not, in principle, liable to impair its autonomy. What matters is that all of those in charge of the entity transferred can exercise the organisational powers which they held previously, prior to the transfer, vis a vis other organisational structures of the new employer. 48 Further, the mere change of those ultimately in charge, as in the case in the main proceedings, cannot in itself impair the autonomy of the entity transferred. 49 Only powers which enabled those ultimately in charge to organise directly the activities of the employees of that entity and to substitute their own decision‑making within that entity would be liable to impair the autonomy of that entity. That is, however, subject to the qualification that such substituted decision‑making within the entity transferred cannot be considered to be detrimental to its autonomy if it occurs, exceptionally, in circumstances of urgency such as a serious incident detrimental to the operation of the entity, on a temporary basis and in accordance with specific rules for that purpose. 50 Moreover, the mere power of control on the part of those ultimately in charge cannot, as a general rule, affect the autonomy of the entity transferred, unless that control also includes powers of the kind specified in the preceding paragraph. 51 Such an interpretation of the concept of autonomy makes it possible, it may be added, to preserve the practical effect of Article 6 of Directive 2001/23, given that, in practice, the transfer of an undertaking, a business or part of an undertaking or business is almost always accompanied by the replacement of those ultimately in charge. 52 That interpretation cannot be called in question by the arguments of the Spanish Government that such an interpretation, implying the continuation, in the case in the main proceedings, of the employees’ existing representation, would, first, bring about a form of ‘double representation’ within the workforce of the new employer and, secondly, be tantamount to ignoring the economic damage which the new employer would suffer if he were obliged to concede, to the representatives of transferred employees, time off in which to carry out their duties. Those arguments merely attempt to call in question the legal effects of the choice made by the European Union legislature when inserting Article 6 of Directive 2001/23. 53 Likewise, the Court must reject the argument of the Spanish Government concerning discrimination and an infringement of the principle of equal treatment in relation to the staff representatives and trade union officials representing the existing staff of the new employer. 54 In that regard, as stated by the Advocate General in point 88 of her Opinion, even if the transferred employees and those employed by the new employer are in comparable situations, the difference in treatment which stems from any imbalance within the organisation of the new employer, at the expense of trade union representatives who are already represented there and representatives of the staff concerned, whose numbers remain unchanged, is justified in the light of the objective of Directive 2001/23, which is to ensure, so far as possible and practicable, that the new employees are not disadvantaged by reason of the transfer in comparison with the situation before that transfer. 55 Lastly, as regards the argument related to the freedom of the existing workforce to engage in trade union activities, suffice it to say that the Spanish Government does not demonstrate how, in the circumstances of the main proceedings, the exercise of that fundamental freedom is affected by retaining the representatives of employees of the transferred entity. 56 Having regard to all of the foregoing, the answer to the question referred is that an economic entity which is transferred preserves its autonomy, within the meaning of Article 6(1) of Directive 2001/23, provided that the powers granted to those in charge of that entity, within the organisational structures of the transferor, namely the power to organise, relatively freely and independently, the work within that entity in the pursuit of its specific economic activity and, more particularly, the powers to give orders and instructions, to allocate tasks to employees of the entity concerned and to determine the use of assets available to the entity, all without direct intervention from other organisational structures of the employer, remain, within the organisational structures of the transferee, essentially unchanged. The mere change of those ultimately in charge cannot in itself be detrimental to the autonomy of the entity transferred, except where those who have become ultimately in charge have available to them powers which enable them to organise directly the activities of the employees of that entity and therefore to substitute their decision-making within that entity for that of those immediately in charge of the employees. Costs 57 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Third Chamber) hereby rules: A transferred economic entity preserves its autonomy, within the meaning of Article 6(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, provided that the powers granted to those in charge of that entity, within the organisational structures of the transferor, namely the power to organise, relatively freely and independently, the work within that entity in the pursuit of its specific economic activity and, more particularly, the powers to give orders and instructions, to allocate tasks to employees of the entity concerned and to determine the use of assets available to the entity, all without direct intervention from other organisational structures of the employer, remain, within the organisational structures of the transferee, essentially unchanged. The mere change of those ultimately in charge cannot in itself be detrimental to the autonomy of the entity transferred, except where those who have become ultimately in charge have available to them powers which enable them to organise directly the activities of the employees of that entity and therefore to substitute their decision-making within that entity for that of those immediately in charge of the employees. [Signatures] * Language of the case: Spanish.