Opinion of the Advocate General — ECLI:EU:C:2008:614
Date: 2008-11-06
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Scope – Transfer – Meaning (Council Directive 2001/23, Art. 1(1)(a) and (b)) Article 1(1)(a) and (b) of Directive 2001/23 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 must be interpreted as meaning that that directive 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, a matter which it is for the national court to determine. Regard being had, in particular, to the objective pursued by Directive 2001/23, which seeks to ensure effective protection of employees’ rights in the event of a transfer, an understanding of the identity of the economic entity, according to which that identity depends entirely on the single factor relating to organisational autonomy, cannot be accepted. It would imply that, on account of the sole fact that the transferee decides to break down the part of the undertaking or business which it has acquired and to integrate it into its own structure, that directive could not be applied to that part of the undertaking or business, thus depriving the employees concerned of the protection afforded by that directive. (see paras 43, 53, operative part)