Information;Judgment — ECLI:EU:C:2023:108
Date: 2023-02-16
Language of the case: Portuguese
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-675/21 – 1 
Case C-675/21 
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: 
10 November 2021 
Referring court: 
Supremo Tribunal de Justiça (Portugal) 
Date of the decision to refer: 
27 October 2021 
Appellant: 
Strong-Charon – Soluções de Segurança, S.A. 
Respondents: 
2045 – Empresa de Segurança, S.A. 
FL 
  
Subject matter of the main proceedings 
Appeal brought by the company Strong-Charon – Soluções de Segurança, S.A. 
(‘Strong-Charon’) before the Supremo Tribunal de Justiça (Supreme Court of 
Justice, Portugal) against the judgment of the Tribunal da Relação (Court of 
Appeal) upholding the appeal brought by the company 2045 – Empresa de 
Segurança, S.A. (‘2045’) against the judgment of the Tribunal de primeira 
instancia (Court of First Instance) upholding the action brought by FL against the 
companies 2045 and Strong-Charon and seeking an order requiring 2045 to 
recognise that the transfer of an economic unit of Strong-Charon to 2045 had had 
the effect of transferring to 2045 FL’s employment contract and, in consequence, 
the obligation to respect all of FL’s rights under that contract. 
Subject matter and legal basis of the request for a preliminary ruling 
The purpose of this request for a preliminary ruling is to determine whether, in the 
circumstances of the dispute in the main proceedings, and in the light of Council 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-675/21 
 
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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, and 
the case-law of the Court of Justice in this regard, there has been a transfer of an 
economic unit of Strong-Charon to 2045 triggering the associated legal 
consequences for FL’s position as an employee. 
Questions referred for a preliminary ruling 
‘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, 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. 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 
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), 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, EU:C:2018:646, paragraph 45; 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, which in turn contains the statement already made in the 
judgment in Alemo-Herron of 18 July 2013, C-426/11, paragraph 25)?’ 
Provisions of European law relied on 
Recital 3 and Article 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 
STRONG-CHARON 
 
3 
employees’ rights in the event of transfers of undertakings, businesses or parts of 
undertakings or businesses 
Provisions of national law relied on 
Código do Trabalho (Portuguese Labour Code), as amended by Law No 14/2018 
of 19 March 2018 (published in Diário da República No 55/2018, Series I of 
19 March 2018), in force at the time of the facts: Articles 285 to 287, which 
transpose Directive 2001/23, in particular: 
‘Article 285 
Effects of the transfer of an undertaking or business 
1. In the event of the transfer of any form of ownership of an undertaking or 
business or part of an undertaking or business that constitutes an economic unit, 
the acquirer shall be subrogated to the rights and obligations of the employer in 
the employment contracts of the workers concerned and liability to pay any fines 
imposed for infringements of employment law shall be transferred to the acquirer. 
2. The provisions of the preceding paragraph shall also apply to the transfer, 
assignment or resumption of the operation of an undertaking, business or 
economic unit and, in the event of assignment or resumption, the party which had 
carried out that operation immediately beforehand shall be jointly and severally 
liable. 
3. In the context of the transfer referred to in paragraphs 1 and 2, the 
employees transferred to the acquirer shall retain all contractual and acquired 
rights, in particular their pay, seniority, occupational status and duties, as well as 
acquired social benefits. 
… 
5. A grouping of organised resources which constitutes a productive economic 
entity endowed with technical and organisational autonomy and retains its own 
identity, for the purposes of carrying on an economic activity, whether or not that 
activity is central or ancillary, shall be considered to be an “economic unit”. 
… 
Article 286 
Informing and consulting workers and workers’ representatives 
1. The transferor and the acquirer shall inform the representatives of the 
workers concerned or, in the absence thereof, the workers themselves, of the date 
of and reasons for the transfer, of its legal, economic and social consequences for 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-675/21 
 
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the workers, of the measures provided for in relation to them and of the content of 
the contract between the transferor and the acquirer …. 
… 
3. The information mentioned in the preceding paragraphs shall be 
communicated in writing, with due notice ahead of the transfer and at least ten 
working days prior to the consultation referred to in the subsequent paragraph. 
4. The transferor and acquirer shall consult the representatives of the 
employees concerned, prior to the transfer, with a view to reaching agreement on 
the measures which they intend to apply to the workers in consequence of the 
transfer, without prejudice to the legal and contractual provisions applicable to 
such measures. 
…’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 FL works as a security guard, and the two companies in question, Strong-Charon 
and 2045, are engaged in the activity of providing private security services. 
2 Strong-Charon hired FL, with seniority from 1 August 2003, to perform the duties 
of security guard and retained him on its staff, under its authority and direction, 
until 31 December 2018. 
3 Strong-Charon provided, at the customer’s premises, human/static and electronic 
security and surveillance services including surveillance and security for persons, 
facilities, equipment and assets, and access control. The provision of these 
services started at the latest in 2004 and ended at 24.00 on 31 December 2018. 
4 On 16 January 2017, Strong-Charon assigned FL to the premises of the customer 
António Meireles, S.A. (Fogões Meireles) (‘the customer’) to perform his duties 
there. In doing his job, FL did not use any immovable or movable property owned 
by Strong-Charon. 
5 2045 participated in a call for tenders for the provision of security services at the 
customer’s premises and, after being selected as the successful tenderer from 
amongst several bidders, concluded with the contracting body the contract for 
provision of services forming the subject of the call for tenders, which it began to 
perform at 00.00 on 1 January 2019 and carried on the activity which had 
previously been performed by Strong-Charon, using at least some of the same 
resources (immovable and movable property, equipment, instruments and 
materials) belonging to the customer and the same number of employees, one of 
whom was transferred by Strong-Charon to 2045. Thus, the services which FL and 
his colleagues had provided, on behalf and in the interests of Strong-Charon, are 
now provided by a security guard who had already worked there for Strong-
STRONG-CHARON 
 
5 
Charon and three other security guards working on behalf and in the interests of 
2045. 
6 The ways of working associated with the provision of services at the customer’s 
premises, in so far as concerns the organisation and ranking of tasks, remained 
unchanged. 
7 On 26 December 2018, Strong-Charon notified FL and his trade union in writing 
that ‘the business relating to [the customer] [was] to be transferred’ and that 2045 
would be his ‘new employer’. That written notification informed him ‘that the 
[contract for provision of the] security services supplied by [Strong-Charon] at the 
[customer’s] premises ha[d] been awarded to [2045], with effect from 1 January 
2019’, that, ‘from that date, [2045] w[ould] be the employer […], in accordance 
with the provisions of [Articles 285 to 287] of the Código do Trabalho 
[Portuguese Labour Code]’, and ‘that this [would] not lead to any significant or 
substantial consequences [for FL], since he [was] guaranteed to retain all of his 
rights, in particular his existing seniority, pay and occupational status’. 
8 Furthermore, by letter of 26 December 2018, Strong-Charon informed 2045 that, 
as from 1 January 2019, FL, among others, would become its worker. 
9 FL is a member of the Sindicato dos Trabalhadores dos Serviços de Portaria, 
Vigilância, Limpeza, Domésticos e Profissões Similares e Atividades Diversas 
(Trade Union of Concierge, Security, Cleaning and Housekeeping Services and 
Similar Occupations and Miscellaneous Activities; ‘STAD’). 
10 On 1 January 2019 and the following two days, FL came to work as normal but 
2045 did not allow him to perform his duties and, up to now, has not assigned him 
any work. 
11 On 8 January 2019, a meeting was held at the Direção de Serviços para as 
Relações Profissionais nas Regiões Norte e Centro (Directorate of Services for 
Industrial Relations in the Northern and Central Regions; ‘DSRPRNC’), part of 
the Direção Geral de Emprego e Relações de Trabalho (Directorate-General of 
Employment and Labour Relations; ‘DGERT’), to which both companies and 
STAD were invited. 
12 At that meeting, Strong-Charon maintained its position that the business or 
economic unit relating to the customer had been transferred to 2045 with effect 
from 1 January 2019, given that 2045 had already taken onto its staff one of the 
workers who had worked for Strong-Charon at the premises of the customer in 
question, and whose work post continued to be assigned to that customer. 
13 At that meeting, STAD also took the same stance in relation to FL and his 
colleagues at the customer’s premises, arguing that the ‘the latter are entitled to 
retain their jobs, irrespective of the change of undertaking responsible for the 
service (which they are not involved in providing), and retain all of their 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-675/21 
 
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employment rights and benefits, in particular their employment relationship, their 
seniority and their pay’. 
14 2045 stated that it did not accept the workers, in particular because, in its opinion, 
the position of employer had not been transferred to it in the employment 
contracts concerned. 
15 2045 argued, in support of its position, ‘that the need to maintain the workers’ 
employment and interests could be guaranteed through the principle of job 
rotation contained in the collective labour agreement for the sector’. 
16 FL, along with other workers, wrote and sent by registered post to 2045 a letter 
concerning the notification he had received from Strong-Charon on 26 December 
2018, in which he stated that he was fully available to carry on performing in his 
work post the duties which had previously been entrusted to him, asked for 
instructions and authorisation to continue working there, said that he wished to 
work and had to do so in order to survive and could not therefore consent to being 
dismissed. He went on to say that he would be claiming all of his rights, including 
pay from 1 January 2019, and awaited instructions to resume work. 
17 On the same date, FL sent Strong-Charon another letter, also concerning the 
notification which he had received on 26 December 2018, in which he stated that 
he stood by the position of his trade union, STAD, with respect to the transfer of 
the business. In that letter, he warned Strong-Charon that, although he was fully 
available to carry on performing his employment contract at the premises to which 
he was assigned, under the direction of 2045, he would be taking any legal action 
necessary to defend his rights, be this against Strong-Charon or against 2045, if 
the latter continued to refuse to allow him to work. 
18 Neither of those companies employed FL from 1 January 2019. Neither did they 
pay him his January 2019 salary or any other remuneration or compensation. 
19 He remained and still remains fully available to work for either company. 
20 At the end of January 2019, the companies in question paid the workers concerned 
their salaries in the usual manner, but they did not pay FL. 
21 Both companies refused to issue the document necessary to enable a claim for 
unemployment benefit to be processed, since Strong-Charon had not, in its view, 
dismissed FL and 2045, in its opinion, did not have and had never had any 
relationship with him. 
22 The security guards who work for 2045, in particular those which that entity 
assigned to the customer’s premises, are line-managed by a local team leader and 
a local supervisor who organise, coordinate and supervise their work, with the 
supervisor reporting in turn to the regional operations manager and the national 
director of operations. All of these executives are workers on 2045’s permanent 
staff and have never worked for Strong-Charon at the customer’s premises and 
STRONG-CHARON 
 
7 
had never before organised, coordinated or supervised any activities carried out by 
the security guards assigned to the customer’s premises by Strong-Charon. 
23 Furthermore, it was that group of workers on 2045’s permanent staff which, as 
from 1 January 2019, began performing their activities at those premises, albeit 
also and at the same time at the premises of other customers. 
24 2045 has many workers on its staff who perform security duties under contracts 
for the provision of services which it has concluded and concludes successively 
with many other customers across the entire country. 
25 In addition to the human resources assigned to security work at the customer’s 
premises, there are the material resources used by the security guards providing 
their services at those premises. These include uniforms, printed material (internal 
memo notes, a register of persons entering and leaving the premises, duty rotas), 
torches, mobile telephones and, in the case of team leaders and supervisors, work 
vehicles also used simultaneously at other facilities at which 2045 provides its 
services to other customers. 
26 2045’s business assets also include the intangible assets it uses at the facilities 
where it provides its services, in particular licences, work organisation methods, 
business culture and know-how, which are its own and were not transferred to it 
by the undertaking Strong-Charon or by the customer. 
27 For the purposes of the award of the contract for the aforementioned security 
services, 2045, in addition to the other aforementioned workers who already 
formed part of its staff and its operational and administrative structure, took over 
only one worker, who had previously worked as a security guard for Strong-
Charon, and another security guard. The other two security guards who formed 
part of the team assigned to the customer’s premises from 1 January 2019 had 
been on 2045’s staff for a long time. During the term of the contract concluded 
with 2045, these security guards had worked at the sites of a number of other 
customers. 
28 After 1 January 2019, Strong-Charon carried on and still carries on its business on 
a regular basis and continues to provide security services at other sites and for 
other customers. 
29 Taking the view that FL’s employment contract had not been transferred, 2045, in 
reply to a communication from FL which it received on 7 January 2019, informed 
him on 11 January 2019 that, since there had not been a transfer of a business 
within the meaning of Article 285 of the Labour Code, he had not joined its staff 
and remained for all legal purposes in the employ of Strong-Charon. 
30 In response to further, subsequent communications from FL, 2045 again provided 
FL with the information which it had already sent to him, without recognising the 
existence of any contractual employment relationship with FL or the dismissal 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-675/21 
 
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which FL claims to have taken place. Consequently, it informed FL that it could 
not issue the requested statement for the unemployment fund. 
31 FL has worked at other organisations and earned income for that work, which he 
began after 1 January 2019. 
Essential arguments of the parties to the main proceedings 
32 FL, claiming that there had been a transfer of an economic unit and, as a result, a 
change of employer, requested that 2045 be ordered to (i) recognise itself as being 
the recipient of the transfer, effective from 1 January 2019, of the position of 
employer under the individual employment contract concluded with Strong-
Charon, and, in consequence, of the obligation to respect all of the rights arising 
from that contract, including seniority rights and other working conditions; (ii) 
reinstate him in his role at the customer’s site and assign to him the duties 
corresponding to his occupational status as a security guard, on the basis of his 
normal working hours; (iii) pay him the sum of EUR 908.76 by way of pay for the 
month of January 2019; (iv) pay the other pay, accrued from 1 January 2019 to his 
reinstatement, as if he had been working as normal; (v) pay him compensation in 
the amount of EUR 15 000 in respect of non-material damage, together with 
interest at the statutory rate of 4% as accrued since the due date for each sum 
requested in points (iii) and (iv) and since notification of the action as regards the 
claim in point (v). In the alternative, and in the event that no such transfer has 
taken place, he requested that Strong-Charon be ordered to satisfy the same 
claims. 
33 The company 2045 takes the view that, since FL’s employment contract was not 
transferred, there having been no transfer of a business within the meaning of 
Article 285 of the Labour Code, FL did not join its staff and remains for all legal 
purposes in the employ of Strong-Charon. 
34 The company Strong-Charon takes the view that the private security and 
surveillance service at the customer’s premises constitutes an economic unit 
inasmuch as it comprises a collection of organised and autonomous resources with 
its own identity which may be the subject of automatic transfer in accordance with 
the provisions of Article 285 of the Labour Code. It maintains that there was 
indeed a transfer between the transferor and transferee, as a result of which the 
type of service concerned continued in being, the resources used were retained 
and the resources and procedures were transferred, and that, for that reason, the 
identity of the economic unit, that is to say the private security and surveillance 
service, was maintained in being. It states that, on taking up the position of 
provider of private surveillance and security services at the customer’s premises, 
2045 neither introduced nor implemented any change. It concludes that, as a result 
of the transfer of that economic unit, FL’s individual employment contract was 
transferred on 1 January 2019 to 2045, which, from that date, became FL’s 
STRONG-CHARON 
 
9 
employer via a change by operation of law in the contractual position of the 
employer. 
Succinct presentation of the grounds for the request for a preliminary ruling 
35 The issue raised in this case, which is whether there has been a transfer of an 
economic unit and whether the legal consequences associated with such a transfer 
have been triggered, is governed by the provisions of Article 285 et seq. of the 
Labour Code, which transpose Directive 2001/23 into domestic law. In this 
context, it is important to take into account how the Court of Justice has 
interpreted that directive in its case-law. 
36 The referring court observes that, according to the Court of Justice, the decisive 
criterion for applying Directive 2001/23 is the existence of a transfer of an 
economic entity which retains its identity. 
37 Thus, in the present case, it is appropriate to ask, in the first place, whether there 
was an economic unit or entity which was capable of being transferred and, if so, 
whether such a transfer took place. 
38 In accordance with Article 285(5) of the Labour Code, ‘a grouping of organised 
resources which constitutes a productive economic entity endowed with technical 
and organisational autonomy and which retains its own identity, for the purposes 
of pursuing an economic activity, whether or not that activity is central or 
ancillary, shall be considered to be an “economic unit”’. That concept must, 
however, be interpreted in the light of the case-law of the Court of Justice. 
39 That economic unit or entity is therefore ‘an organised grouping of persons and 
assets enabling the exercise of an economic activity which pursues a specific 
objective’, it being necessary, furthermore, for that economic entity to take the 
form of a stable organisation (judgment of 29 July 2010, UGT, C-151/09, 
EU:C:2010:452, paragraphs 26 and 27). The Court of Justice has also repeatedly 
stated that, ‘in certain labour-intensive sectors, a group of workers engaged in a 
joined activity on a permanent basis may constitute an economic entity’ (judgment 
in UGT, paragraph 29). What is more, as was expressly held in the judgment of 
12 February 2009, Dietmar Klarenberg (C-466/07, EU:C:2009:530), Directive 
2001/23 ‘may also apply in a situation where the part of the undertaking or 
business transferred does not retain its organisational autonomy, provided that the 
functional link between the various elements of production transferred is 
preserved, and that that link enables the transferee to use those elements to pursue 
an identical or analogous economic activity’. 
40 It is important to note that the mere fact that a service provider secures a customer 
and pursues the same activity that was previously carried on by another service 
provider for the same customer does not in itself give rise to a transfer of an 
economic entity. As was held in the judgment of 11 March 1997, Ayse Süzen 
(C-13/95, EU:C:1997:141, paragraph 15), ‘the mere fact that the service provided 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-675/21 
 
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by the old and the new awardees of a contract is similar does not therefore support 
the conclusion that an economic entity has been transferred’, since ‘an entity 
cannot be reduced to the activity entrusted to it’. It must therefore be determined 
when an economic entity retains its identity, a circumstance ‘indicated inter alia 
by the fact that its operation is actually continued or resumed’ (judgment of 
9 September 2015, Silva e Brito, C-160/14, EU:C:2015:565, paragraph 25). Over 
the course of its extensive case-law, the Court of Justice has developed an 
extrapolation method. Thus, ‘in order to determine whether that condition is met, 
it is necessary to consider all the facts characterising the transaction concerned, 
including in particular the type of undertaking or business concerned, whether or 
not its tangible assets, such as buildings and movable property, are transferred, the 
value of its intangible assets at the time of the transfer, whether or not the majority 
of its employees are taken over by the new employer, whether or not its customers 
are transferred, the degree of similarity between the activities carried on before 
and after the transfer, and the period, if any, for which those activities were 
suspended’ (judgment in Silva e Brito, paragraph 26). It is appropriate to note, 
however, that the Court of Justice has always emphasised the need to carry out a 
weighing-up or assessment of all the factors present: ‘however, all those 
circumstances are merely single factors in the overall assessment which must be 
made and cannot therefore be considered in isolation’, and that the relative 
importance of those factors varies according to the particular case: ‘the degree of 
importance to be attached to each criterion will necessarily vary according to the 
activity carried on and the production or operating methods employed in the 
undertaking, business or part of a business’ (judgment in Silva e Brito, C-160/14, 
paragraph 27). 
41 It should be noted that the Court of Justice has drawn a distinction in relation to 
activities which are essentially based on manpower, going so far as to say that, in 
the case of such activities, ‘the identity of an economic entity […] which is 
essentially based on manpower cannot be retained if the majority of its employees 
are not taken on by the alleged transferee’ (judgment of 20 January 2011, CLECE, 
C-463/09, EU:C:2011:24, paragraph 41). 
42 As regards activities which are essentially based on equipment, ‘the failure of the 
new contractor to take over, in terms of numbers and skills, an essential part of the 
staff which its predecessor employed to perform the same activity is not sufficient 
to preclude the existence of a transfer of an entity which retains its identity within 
the meaning of Directive 2001/23 in a sector such as that at issue in the main 
proceedings, where the activity is based essentially on equipment’ (judgment of 
26 November 2015, ADIF, C-509/14, EU:C:2015:781, paragraph 41). 
43 Thus, the Court of Justice has already stated that the activity of mass catering is 
based essentially on equipment, and has said the same of a school of music, an 
undertaking maintaining intermodal transport units and an undertaking providing 
transport by bus. Conversely, the Court of Justice has already classified both 
cleaning and security or surveillance as activities based essentially on manpower. 
STRONG-CHARON 
 
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In any event, it is important to emphasise that everything depends on the particular 
case. 
44 In the present case, there is an economic unit which may have been the subject of 
a transfer: the workers guarding the customer’s premises, using equipment 
provided in part by their employer and in part by the customer, have the minimum 
degree of technical and organisational autonomy to be capable of being regarded 
as an economic unit. It must be recalled that the reduced number of workers 
comprised in that unit (four) obviously presents no obstacle, since the Court of 
Justice previously recognised the existence of an economic unit made up of a 
single employee in the well-known judgment of 14 April 1994, Christel Schmidt 
(C-392/92, EU:C:1994:134). 
45 The arguments to the contrary put forward by 2045, which are based on the Lei da 
Segurança Privada (Law on Private Security), and which, if taken to their extreme, 
would preclude the existence of any transfer of an undertaking in this economic 
field, must be dismissed. The requirement is that there should be an economic 
unit, and not, from a legal point of view, that that unit should be immediately able 
to function in isolation. Thus, that unit is not required, for example, to have its 
own licences or its own security manager. Those requirements would not only be 
contrary to the purpose of the directive, but would also be incomprehensible in a 
case such as this, where the issue is whether there has been a transfer of an 
economic unit from one security firm to another. 
46 Thus, if the aforementioned extrapolation method is applied to this case, it is clear, 
first, that the criteria as to retention of the customer base, similarity of the activity 
pursued and non-existence of a significant passage of time between the activity of 
one service provider and that of the subsequent service provider, are met. 
47 It is true that, in the opinion of some legal commentators, those criteria should not 
be relevant in a case such as this involving a succession of contractors providing 
services for the same customer, just as they should not be relevant in cases of 
‘insourcing’. It is clear that the customer is the same and that the activity pursued, 
which consists in guarding premises, is similar. As Advocate General Poiares 
Maduro noted in his Opinion of 16 June 2005 in Joined Cases C-232/04 and 
C-233/04, EU:C:2005:395, point 39, ‘in a situation in which identical service 
contracts are concluded between a contracting authority and successive service 
providers, it is particularly difficult to define what actually constitutes the 
transferable economic entity, since many elements of that entity are fixed by 
contract. For example, it is inherent in the nature of a contract entered into in the 
context of an invitation to tender that the client base of the service provider will 
remain the same. Similarly, the assets made available represent a constant in the 
account the service providers must balance in submitting a tender, and similarly, 
for instance, the place where the service is to be provided, or, in the case of 
Securicor and Kötter, the physical layout of Düsseldorf airport. In point of fact, 
the same assets, made available by the contracting authority, will be used by all 
the service providers to which the contract passes, and they will have no discretion 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-675/21 
 
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in that regard. In other words, the assets made available are outside the control of 
the successive service providers and, therefore, cannot be considered to form part 
of a transferable organisational entity’. Although, in keeping with that statement, 
some commentators argue that retention of the customer base, for example, is of 
no independent significance in such cases, the fact remains that the Court of 
Justice appears to have taken that factor, among others, into account in the 
judgment of 20 November 2003, Carlito Abler (C-340/01, EU:C:2003:629, 
paragraph 36): ‘it is clear that, given their captive status, the new contractor 
necessarily took on most of the customers of its predecessor’. 
48 Although the relevance of such factors cannot therefore be denied outright, they 
may nonetheless be said to be of secondary importance in cases such as this one, 
which relates to a succession of contractors providing services for the same 
customer. 
49 Next, it must be ascertained whether there has been a transfer of material 
elements. It is well known from the settled case-law of the Court of Justice that 
there does not have to be a transfer of ownership, since, in order for this factor to 
be present, it is sufficient for the use of certain items of equipment to be made 
available to the new service provider, by the customer itself, for example. That 
was the case, for example, in Carlito Abler, although the judgment in those 
proceedings did not distinguish in this regard between premises and equipment. 
Now, as was later established in the judgments in CLECE and of 19 October 2017, 
Securitas (C-200/16, EU:C:2017:780), a distinction must be drawn between 
premises and equipment. If it were relevant that the same service (security, for 
example) is provided on the same premises (for example, on the customer’s 
business premises, as it is in the case of the service of providing security and 
surveillance on such premises), this would mean that any succession in the 
activity would be synonymous with a transfer of an economic unit, which, as has 
already been said, cannot be the case. 
50 In the present case, there has been a transfer of material elements, since some of 
the equipment which the customer made available to the first service provider was 
also made available to the second, it not being necessary for this purpose, as the 
Court of Justice has repeatedly held, that there should be any transfer of 
ownership. Furthermore, the statement contained in the judgment in Securitas, 
that ‘Article 1(1)(a) of Directive 2001/23 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’, 
must not be taken out of context and is not intended to exclude the need for an 
overall weighing-up or assessment of all of the factors present, which need has, 
moreover, been reiterated in later judgments (for example, in the judgment of 
STRONG-CHARON 
 
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27 February 2018, Grafe and Pohle, C-298/18, EU:C:2020:121, paragraph 24). 
Although this factor cannot be regarded as being decisive in isolation, it does 
point to the existence of a transfer of the economic entity. 
51 Next, it must be ascertained whether the new service provider took over an 
essential part of the previous provider’s staff in that economic unit. It should be 
borne in mind that it is not only the number of workers transferred that is relevant. 
As was stated, for example, in the judgment of 11 July 2018, Somoza Hermo and 
Ilunión Seguridad (C-60/17, EU:C:2018:559, paragraph 34), it must be 
established whether the new service provider ‘takes over a major part, in terms of 
their numbers and skills, of the employees specially assigned by his predecessor to 
that task’. It may be, after all, that the new provider does not take over the 
majority of the workers but nonetheless takes over  those workers who, on account 
of their skills and knowledge, are essential to the economic unit in question and 
perform key duties. 
52 First of all, it must be emphasised that the statement made in the judgment under 
appeal that ‘no employment contract was transferred, given that the security guard 
who had previously worked for [Strong-Charon] concluded a new employment 
contract with the appellant’ is unfounded. What must be established at this stage 
in order to determine whether there has been a transfer is whether the majority or 
an essential part of the staff carried on working for the new service provider. If 
that is the case, and if it can be said, in the light of all the factors present, that 
there has been a transfer, it will have to be concluded, given the mandatory nature 
of the rules of law on transfer, that the contractual relationship already in place 
has continued in being. 
53 Have the majority or an essential part of the staff been retained in the present case, 
however? In this case, the facts deemed to have been proved do not support the 
conclusion that this factor is present: the new provider took over only one of the 
four workers in question (and did not therefore take over the majority) and there is 
no factual basis for concluding that that worker had specific skills or knowledge 
such as to sustain the assertion that an essential part of the staff joined the new 
provider’s workforce. 
54 Unlike at first instance, the facts which the Court of Appeal deems proved do not 
support the conclusion that there has been a transfer of know-how or other 
intangible elements to the new provider. It has not been demonstrated that the new 
provider has benefited from the previous provider’s technical and procedural 
know-how, and the fact that it chose to organise the work in a similar way, and 
even using the same number of security guards, does not in itself demonstrate that 
there has been a transfer of intangible assets. 
55 It should also be emphasised that, according to the judgment in Ayse Süzen, 
although the absence of contractual relations between successive providers does 
not preclude the existence of a transfer, it is in itself a factor which argues against 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-675/21 
 
14  
such a transfer. The most recent case-law of the Court of Justice, however, has not 
referred to that factor. 
56 Strong-Charon submits that it is necessary to adopt a teleological interpretation 
which gives precedence in all cases to the employees’ interest in the continuation 
of the employment relationship. Nonetheless, although the Court of Justice stated 
in the judgment in Grafe and Pohle (paragraph 27) that ‘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 (see, to that effect, judgment of 7 August 2018, Colino Sigüenza, 
C-472/16, EU:C:2018:646, paragraph 45), as well as the objectives pursued by 
Directive 2001/23, as set out, inter alia, in recital 3 thereof’, the fact remains 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, which contains 
the statement already made in the judgment of 18 July 2013, Alemo-Herron, 
C-426/11, EU:C:2013:521, paragraph 25). It is therefore unclear whether that 
teleological interpretation must now also take into account the transferee’s 
interests. 
57 It is therefore appropriate to refer a question concerning Article 1 of Directive 
2001/23 to the Court of Justice for a preliminary ruling.