Opinion of the Advocate General — ECLI:EU:C:2023:435
Date: 2023-05-25
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-583/21 – 1 
Case C-583/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
20 September 2021 
Referring court: 
Juzgado de lo Social n.º 1 de Madrid (Spain) 
Date of the decision to refer: 
30 July 2021 
Applicant: 
NC 
Defendants: 
DA 
DV 
CG 
BA 
  
Subject matter of the main proceedings 
Dismissal of an employee of a notary’s office – Employee who has worked for 
successive notaries in post in the said notary’s office – Severance pay – 
Calculating the employee’s seniority – Relevant date for the purposes of that 
calculation 
Subject matter and legal basis of the request 
Directive 2001/23/EC – Safeguarding of employees’ rights in the event of 
transfers of undertakings, businesses or parts of undertakings or businesses – 
Applicability to employees of notaries’ offices – Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – C-583/21 
 
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Question referred for a preliminary ruling 
Does Article 1(1)(a) of Council Directive 2001/23 of 12 March 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, and consequently the contents of the directive, apply 
to a situation in which the notary in post in a notary’s office – who is both a public 
official and also the private-sector employer of the office’s employees, with the 
employment relationship being governed by general employment legislation and 
by a sectoral Collective Agreement – succeeds the outgoing post-holder, takes on 
the previous notary’s Protocol, continues to provide services at the same place of 
work using the same material facilities, and takes on the staff who had worked for 
the previous notary who had held that post? 
Provisions of European Union law relied on 
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. Article 1(1)(a). 
Provisions of national law relied on 
– Ley de 28 de mayo 1862, Orgánica del Notariado (Organic Law of 28 May 
1862 governing the notarial profession). 
Article 1: ‘A notary is a public official authorised to authenticate contracts 
and other extra-judicial documents, in accordance with the law. 
Throughout the Kingdom there shall be a single class of such officials.’ 
– Decreto de 2 de junio de 1944 por el que se aprueba con carácter definitivo 
el Reglamento de la organización y régimen del Notariado (Decree of 2 June 
1944 giving final approval to the Regulations for the organisation and 
arrangements governing the notarial profession), as amended by the Real 
Decreto 457/2007, de 19 de enero (Royal Decree 457/2007 of 19 January 
2007) and by the Real Decreto 140/2015, de 6 de marzo, sobre demarcación 
notarial (Royal Decree 140/2015 of 6 March 2015 on the demarcation of 
notaries’ offices). 
Article 69: ‘[Public office means the] set of human and material resources 
designed to achieve the said purpose [of the notarial public function].’ 
Article 272: ‘The notarial protocol shall include the public instruments and 
other documents recorded therein each year …’ 
– Estatuto de los Trabajadores (Workers’ Statute) 
NC 
 
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Article 44 
‘1. Change in ownership of an undertaking, business or independent 
production unit shall not in itself give rise to termination of the employment 
relationship, and the new employer shall be subrogated in the employment 
and Social Security rights and obligations of the previous employer, 
including pensions commitments, in accordance with the terms of the 
specific applicable legislation and, in general, in all supplementary social 
protection obligations assumed by the transferor. 
2. For the purposes of this article, the transfer of an undertaking is 
deemed to occur where the transfer affects an economic entity which retains 
its identity, meaning an organised grouping of resources which has the 
objective of pursuing an economic activity, whether central or ancillary.’ 
Article 52(c): ‘[The contract may be terminated] on any of the grounds 
provided for in Article 51(1) where the termination affects a smaller number 
[of employees] than the number stipulated therein.’ 
Article 53 
‘1. In order for a decision to terminate a contract to be made pursuant to 
the previous article, the following requirements must be satisfied: 
a) The employee must be given written notice of the grounds. 
b) Upon delivery of the written notice, the employee must be provided 
with a severance payment of 20 days’ pay for each year of service, with 
compensation for periods of less than a year being payable pro rata, up to a 
maximum of 12 months’ pay.’ 
Article 56 
‘1. Where the dismissal is ruled unfair, within 5 days of notice of the 
judgment the employer may choose between reinstating the employee or 
making a severance payment of 33 days’ pay for each year of service, with 
compensation for periods of less than a year being payable pro rata, up to a 
maximum of 24 months’ pay. Where the employer opts to make a severance 
payment, the contract of employment shall be deemed to be terminated with 
effect from the date of the effective cessation of employment. 
[…].’ 
– II National collective agreement between notaries and employees (BOE of 
16 September 2017) 
Article 50: ‘Where the employment relationship is terminated due to the 
notary’s relocation (requiring a change of residence) or voluntary leave of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – C-583/21 
 
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absence, the employee shall be entitled to the severance pay provided for in 
the legislation for the time being in force in cases of relocation or 
termination on objective grounds [currently set at 20 days’ pay for each year 
of service, with compensation for periods of less than a year being payable 
pro rata, up to a maximum of 12 months’ pay, pursuant to Article 40(1) or 
Article 52(c) of the Workers’ Statute], to be calculated on the basis of 
effective length of service with the departing notary. No such sum shall be 
payable where any of the following circumstances applies: 
1. Where there is an agreement between notaries and the employee 
continues with the other office-holders. 
2. Where, either before or at the time of the relocation, at the employee’s 
initiative, the employee reaches an agreement with another notary to 
continue in employment, provided that the hiring notary recognises the 
employee’s seniority for the purpose of calculating severance payments. 
3. Where the employee accompanies the notary to his or her new place of 
work. 
[…].’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, NC, worked at the notary’s office in … for the following notaries 
who were in post for the following periods: 
― For notaries DA and CG: from 24 May 2004 to 30 November 2012. 
― For the notary DA: from 1 December 2012 to 25 April 2014. 
― For the notary DV: from 1 February 2015 to 30 September 2019. 
― For the notary BA: from 11 February 2020 to 16 March 2020. 
2 On 30 September 2019 the notary DV delivered a letter to NC offering him the 
option of either relocating with the notary to his new address or terminating the 
employment relationship. NC opted to terminate the employment relationship and 
to receive a final payment and settlement, which included severance pay of 
EUR 10 071.21. 
3 BA was appointed as the notary for the said notary’s office on 29 January 2020. 
BA had spoken to NC in December 2019 so as to have the benefit of his services 
once he took up post in the notary’s office. 
4 On 11 February 2020 the notary BA signed an open-ended contract of 
employment with NC, with a six-month probationary period. 
NC 
 
5 
5 On 15 March 2020, as part of the management of the COVID-19 pandemic, the 
Dirección General de Seguridad Jurídica y Fe Pública (Directorate-General for 
Legal Certainty and Attestation) issued an instruction stipulating that only urgent 
proceedings should be conducted, and requiring notary’s offices to implement the 
authorities’ recommendations on social distancing and to introduce shifts, taking 
into account the number of employees. 
6 On 16 March 2020 NC and two other employees approached the notary’s office 
and asked the notary BA to implement that instruction. BA’s precise words to 
them in his office were ‘This isn’t a cooperative’. That same afternoon BA gave 
NC a letter of permanent termination of employment on grounds of failure 
successfully to complete the probationary period, with effect from that same day. 
7 NC has filed an action with the referring court over the dismissal in which he 
seeks to have the dismissal declared void or, in the alternative, unfair, citing a 
seniority date of 24 May 2004 (the date on which he began working for the 
notary’s office). The action is brought against his most recent employer, the 
notary BA, and also ― for reasons of standing ― against his previous employers, 
the notaries DA, DV and CG. 
The essential arguments of the parties in the main proceedings 
8 The applicant considers that the reference date for the purposes of calculating the 
severance pay is the date on which he began working for the notary’s office 
(24 May 2004), while the defendant considers that the relevant date for these 
purposes is the date on which the applicant began working for the defendant 
(11 February 2020). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The referring court wishes to explain that, in Spain, notaries are public officials 
who obtain their posts through competitive examination but who are also the 
employers of the employees in their charge, that the contracts of employment 
between them and their employees are subject to all general and EU employment 
legislation, and that they are required to register under the Régimen Especial de la 
Seguridad Social de Trabajadores Autónomos (Special Social Security Scheme for 
the Self-Employed, ‘RETA’). Notaries also negotiate collective employment 
agreements with their employees, through their respective representatives; until 
2010 these agreements were regional in scope, and since then they have been 
national. 
10 When a notary leaves his or her post, on either relocation or retirement, the 
successor notary, who can decide whether or not to continue in the same physical 
location, must retain the previous notary’s records (‘protocol’) for 25 years and 
must, at clients’ request, issue copies and certifications of proceedings performed 
by the previous notary; it is customary (although not a legal requirement) for the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – C-583/21 
 
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new incumbent to retain the staff and premises, known as the ‘public office’. 
Neither the legislation nor the collective agreement contains any express provision 
concerning the position of staff in the event of dismissal, other than in the case of 
the relocation or voluntary leave of absence of the notary. 
11 The referring court also wishes to point out that the present case concerns 
termination of the employment relationship as a result of failure successfully to 
complete the probationary period ― and not, therefore, as a result of the 
relocation of the notary ― and the general rules governing this type of dismissal 
unquestionably apply; irrespective of whether the dismissal is fair or unfair, it is 
essential to determine the applicable seniority date, because in both cases there is 
a right to a severance payment, which is calculated on the basis of the employee’s 
actual salary and seniority, subject to certain limits which vary depending on 
whether the dismissal is fair or unfair. 
12 The referring court considers that, since the employee has been in continuous 
employment since 24 May 2004 with the various notaries who have successively 
held the post of notary in the locality of …, and was employed under an ordinary 
employment relationship and worked at the same place of work, and since, from 
11 February 2020, his employer has been the new office-holder, BA, who took on 
the employees who had worked for the previous office-holder at the same place of 
work, which is where the protocol is held, using the same material resources, but 
who did not accept seniority based on the start of the employee’s employment at 
the notary’s office, and since BA subsequently decided to dismiss the employee 
on grounds of failure successfully to complete the probationary period, the 
question arises whether this situation falls within 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 undertakings or businesses, which 
establishes that the directive applies ‘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’. 
13 The referring court notes that, if the action for dismissal is upheld and Directive 
2001/23/EC is considered to apply to the present case, the relevant seniority date 
for the purposes of calculating the severance payment would be 24 May 2004, in 
accordance with the provisions of that directive. It also notes that general national 
employment legislation does not exclude these staff from the application of 
employment legislation, and that the only provision made by the collective 
agreements (which, in any event, could not contravene the legislation or EU law) 
concerns situations where the contract is terminated due to the relocation of the 
notary to another post. 
14 Lastly, the referring court refers to the limited national case-law on the subject of 
employment relationships between notaries and their employees. It cites, first, the 
judgment of the Tribunal Supremo (Supreme Court) of 15 December 2004 which, 
with regard to an article in the Reglamento Notarial (Notarial Regulations) of 
NC 
 
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1956, noted that the provision in question must be considered to be ‘necessarily 
repealed, at least since the enactment of the Workers’ Statute, whose Repealing 
Provision set aside all provisions that were contrary to the Statute. The special 
employment relationships listed in Article 2 do not include employees of notaries’ 
offices, and the grounds for termination listed in Article 49 do not include the 
departure of the employer, except in the case of his or her retirement or death and 
in cases giving rise to termination on objective grounds as provided for in 
Article 51 and Article 52(c) of the Workers’ Statute. This means that the only 
provisions of that Decree that will remain in force are those that are compatible 
with the provisions in the Statute governing the employment relationship, and the 
provisions concerning termination of contract do not fall within that category.’ 
Secondly, it refers to the judgment of the Supreme Court of 23 July 2010, which 
stated that the legal nature of the public function performed by notaries ‘does not 
exempt them from being employers where the requirements in Article 1(2) of the 
Workers’ Statute are satisfied, meaning that they must comply with the 
obligations imposed on employers by employment legislation …’. However, that 
judgment also went on to say that ‘a notary is not the owner of an organisation of 
human and material resources which can give rise to the transfer of an undertaking 
on the transfer of the office in which the notary had been carrying out his or her 
public function, because successive appointments and the resulting transfers are 
dependent on central government; nor does a notary, by virtue of his or her 
appointment to a specific notary’s office, become the owner of the set of 
organisational structures which characterises that office, but purely and simply the 
depository of the office’s Protocol and the person visibly in charge of the public 
function performed in that notary’s office, which is not a public service in the 
strict sense of the term.’