Information;Order — ECLI:EU:C:2023:124
Date: 2023-02-16
Language of the case: Portuguese
Court formation: Ninth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Portugal

summary, that the second defendant took over as the applicant’s 
employer, because the second defendant assumed the operation of the notary’s 
office previously held by the first defendant, without the employment contract 
concluded with the applicant having been terminated as a consequence of the 
cessation of activity of the first defendant and because that contract of 
employment assigned to the second defendant was subsequently terminated by 
agreement between the applicant and the second. Therefore, the first defendant 
does not owe the applicant any compensation for termination of contract.  
The defendant JN submitted a statement of defence … [the second defendantʼs 
defence], stating in essence that ‘the court should uphold this defence and 
KI 
 
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consequently exonerate the defendant of the claims brought against her on the 
basis of the objection that the defendant lacks standing to be sued or, if the court 
should decide otherwise, (b) exonerate the defendant, (c) order the applicant to 
pay the defendant damages for abuse of rights in an amount to be determined ex 
aequo et bono and (d) order the applicant to pay the defendant damages for acting 
in bad faith in an amount to be determined ex aequo et bonoʼ. 
The second defendant maintained, also in summary, that she lacks standing to be 
sued in these proceedings, and that there was no transfer of the business between 
the defendants, since the notaryʼs office owned by the first defendant ceased 
operating when the first defendant reached the age limit laid down for exercising 
notarial functions, and that the second defendant was appointed on a provisional 
basis to carry out the notarial functions in the same municipality. Therefore, she 
owes no amount to the applicant, with whom she agreed the termination of her 
employment contract, and therefore the applicant is abusing her rights and 
litigating in bad faith.  
The applicant KI submitted a reply, stating in essence that the court ‘should 
dismiss the objections raised and rule in accordance with the forms of order 
sought in the applicationʼ. 
The court handed down an interim judgment, in which, after dismissing the 
objection of lack of standing to be sued … raised by the second defendant and 
declaring that she did have legal standing as a defendant, reserved its decision on 
the substance of the case and reiterated that the proceedings were valid and in 
order …[matters relating to evidence]. 
After the … final hearing …, the court declared that the case was ready for 
judgment on the facts and points of law … [legal provisions relating to the 
pronouncement of the judgment], although it will be necessary to take into 
account, when drafting that judgment, that in these proceedings questions 
arise (which need to be referred for a preliminary ruling and which are 
relevant to the decision in the case) concerning the interpretation and 
subsequent application of the Directive referred to below, with the 
consequences to be drawn in the final part of this decision. 
As a reminder, Article 267 of the Treaty on the Functioning of the European 
Union provides that ‘the Court of Justice of the European Union shall have 
jurisdiction to give preliminary rulings concerning: (a) the interpretation of the 
Treaties; (b) the validity and interpretation of acts of the institutions, bodies, 
offices or agencies of the Union. Where such a question is raised before any court 
or tribunal of a Member State, that court or tribunal may, if it considers that a 
decision on the question is necessary to enable it to give judgment, request the 
Court to give a ruling thereon. …ʼ  
Thus, 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 
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employeesʼ rights in the event of transfers of undertakings, businesses or parts of 
undertakings or businesses provides that ‘(a) This Directive shall apply to any 
transfer of an undertaking, business, or part of an undertaking or business to 
another employer as a result of a legal transfer or merger. (b) Subject to 
subparagraph (a) and the following provisions of this Article, there is a transfer 
within the meaning of this Directive where there is a transfer of an economic 
entity which retains its identity, meaning an organised grouping of resources 
which has the objective of pursuing an economic activity, whether or not that 
activity is central or ancillary. (c) This Directive shall apply to public and private 
undertakings engaged in economic activities whether or not they are operating for 
gain. An administrative reorganisation of public administrative authorities, or the 
transfer of administrative functions between public administrative authorities, is 
not a transfer within the meaning of this Directiveʼ. 
In the present case, it must be borne in mind that, as is evident from the extensive 
case-law of the European courts in that regard, the Court of Justice of the 
European Union has interpreted that article broadly (see, for example, the 
judgment of the Court of Justice (Tenth Chamber) … [link to the judgment], in 
which it was stated, inter alia, that ‘Article 1(1)(a) 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 businesses must be interpreted as meaning 
that, where a contracting entity has terminated the contract concluded with one 
undertaking for the provision of security guard services at its facilities, then 
concluded a new contract for the supply of those services with another 
undertaking, which refuses to take on the employees of the first undertaking, that 
situation falls within the concept of a “transfer of an undertaking [or] business” 
within the meaning of that provision, when the equipment essential to the 
performance of those services has been taken over by the second undertaking’. 
The aforementioned article was transposed into the Portuguese legal order by 
Article 285 of the Labour Code, which is currently worded in the following terms: 
‘1– In the event of transfer, by whatever means, of the ownership of an 
undertaking or business or a part of an undertaking or business that constitutes an 
economic unit, the capacity of employer under the employment contracts of the 
employees concerned shall be transferred to the purchaser, together with the 
liability to pay any fines imposed in respect of employment law infringements. 2– 
The provisions of the preceding paragraph shall also apply to the transfer, 
assignment or resumption of control of the operation of an undertaking, business 
or economic unit and, in the event of assignment or resumption, the party carrying 
out that operation immediately before the assignment or resumption shall be 
jointly and severally liable. 3– In the transfer referred to in paragraphs 1 and 2, 
employees transferred to the purchaser shall retain all contractual and acquired 
rights, in particular, remuneration, seniority, professional category and 
responsibilities and social benefits acquired. 4– The preceding paragraphs shall 
not apply to an employee who, before the transfer, has been transferred by the 
transferor to another business or economic unit, within the meaning of 
Article 194, while being retained in the transferor’s service, with the exception of 
KI 
 
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matters concerning the liability of the purchaser regarding payment of any fines 
imposed in respect of employment law infringements. 5– An organised grouping 
of resources which constitutes a production unit with technical-organisational 
autonomy and maintains its own identity, with the objective of pursuing an 
economic activity shall be considered to be an economic unit, whether that 
activity is central or ancillary. 6– The transferor shall be jointly and severally 
liable for the employeeʼs claims arising out of the employment contract, from 
breach or termination thereof, and for the corresponding social charges due up to 
the date of the transfer, assignment or resumption for a period of two years 
thereafter. 7– The transfer shall take place only after seven working days have 
elapsed following the expiry of the deadline for appointing the representative 
committee referred to in paragraph 6 of the following article if it has not yet been 
constituted, or after the agreement or the end of the consultation period referred to 
in paragraph 4 of that article. 8– The transferor must inform the Inspection Service 
of the Ministry of Labour of: (a) the content of the contract concluded between the 
transferor and the purchaser, without prejudice to the provisions of Articles 412 
and 413, mutatis mutandis; (b) if there is a transfer of an economic unit, all the 
elements relating to that transfer, in accordance with paragraph 5. 9– The 
provisions of the previous paragraph shall apply in the case of medium or large 
undertakings and, at the request of the Inspection Service of the Ministry of 
Labour, in the case of micro or small undertakings. 10– The provisions of this 
article shall apply to all transfers of undertakings or businesses through the award 
of service contracts granted following an open call for tenders or other means of 
selection, in the public and private sectors, in particular the award of contracts for 
security, catering, cleaning or transport services, and the contracts will take effect 
at the time they are awarded. 11– The following constitute very serious 
infringements: (a) the conduct of the employer on the basis of the assumed 
transfer of his or her position in the employment contracts owing to the transfer of 
ownership of the undertaking or business or part of the undertaking or business 
which constitutes an economic unit, or to its transfer, assignment or resumption of 
control, where this has not taken place; (b) the conduct of the transferor or 
purchaser who does not acknowledge that the latter took over the position of the 
former in the employment contracts of the respective employees where there is a 
transfer of ownership of the undertaking or business or part of the undertaking or 
business which constitutes an economic unit, or its transfer, assignment or 
resumption of control. 12– The court decision finding the commission of the 
infringement to which (a) or (b) of the preceding paragraph refer must state, 
respectively, that the purchaser did not take over the position of employer under 
the employment contracts concluded with the employees, or that he or she did do 
so. 13– Failure to comply with the provisions of paragraphs 7, 8 or 9 shall be 
considered a serious infringement. 14– The provisions of Article 3(1)(m) and 
Article 498 shall apply to the employees of undertakings or businesses transferred 
in accordance with this articleʼ. It is necessary, at this point, to refer to the Court 
of Justice for a preliminary ruling the questions set out below, relating to the 
application of this article to the present case and its factual background (since this 
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case concerns a notaryʼs office, which is a very specific activity governed by rules 
which are very different from those governing other activities). 
Therefore, and in summary, since it is considered necessary for the Court of 
Justice of the European Union to give a preliminary ruling on the specific issues 
raised in this case, which are not clear or apparent from the directive in question, 
and which are relevant and important for a final decision on this case, these 
proceedings will be suspended, in accordance with the legal provisions set out 
below, pending a preliminary ruling on the questions referred. 
On those grounds, the proceedings are suspended … [legal provisions 
concerning suspension of the proceedings] until such time as the Court of 
Justice rules on the following questions: 
I. For the purposes of the provisions of Council Directive 2001/23/EC of 
12 Martin 2001, can a notaryʼs office be considered an undertaking or 
business which may be transferred?  
II. Does the concept of ‘transfer of businessʼ provided for in Council 
Directive 2001/23/EC of 12 March 2001 include the cessation of the 
activity of a notary due to reaching the age limit, which involves the 
initiation of a procedure before the College of Notaries in accordance 
with the Estatuto do Notariado (Notaries Statute) and the Estatuto da 
Ordem dos Notários (Statute of the College of Notaries) to fill that post 
on an interim basis, which, for the purposes of that procedure, gives rise 
to the provisional appointment of a new notary, who is to carry on that 
activity in the same place and with the same equipment? 
… [matters relating to the submission of the request for a preliminary ruling to the 
Court of Justice] 
… 
Figueira da Foz, 7/7/2021 
The Judge, 
… [signature]