Opinion of the Advocate General — ECLI:EU:C:2008:471
Date: 2008-09-04
Language of the case: Finnish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the Judgment 1. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 (Council Directive 2001/23, Art. 4(2)) 2. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 (Council Directive 2001/23, Art. 3(3)) 1. Article 4(2) 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 of businesses, according to which if the contract of employment or the employment relationship is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee, the employer is to be regarded as having been responsible for termination of the contract of employment or the employment relationship, must be interpreted as meaning that, in cases where the termination of a contract of employment or an employment relationship is brought about because the conditions for the applicability of that provision have been met, independently of any failure on the part of the transferee employer to fulfil its obligations under that directive, the Member States are not required to guarantee the employee a right to financial compensation, for which the transferee employer is liable, in accordance with the same conditions as the right upon which an employee can rely where the contract of employment or the employment relationship is unlawfully terminated by his employer. However, the national court is required, in a case within its jurisdiction, to ensure that, at the very least, the transferee employer in such a case bears the consequences that the applicable national law attaches to termination by an employer of the contract of employment or the employment relationship, such as the payment of the salary and other benefits relating, under that law, to the notice period with which an employer must comply. (see paras 30, 35, operative part) 2. Article 3(3) of Directive 2001/23 on the approximation of the laws of the Member States relating to the safeguarding of employee’s rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, which provides that after the transfer, the transferee must continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transfer, until the date of termination or the expiry of the collective agreement or the entry into force or application of another collective agreement does not require the transferee to ensure that the working conditions agreed with the transferor are observed after the date of expiry of the collective agreement, even though that date coincides with the date on which the undertaking was transferred. (see paras 34, 36, operative part)