Opinion of the Advocate General — ECLI:EU:C:2005:686
Date: 2005-11-15
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 77/187 (Council Directive 77/187, Art. 3(1)) Article 3(1) of Directive 77/187 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 not precluding, in a situation where the contract of employment refers to a collective agreement binding the transferor, that the transferee, who is not party to such an agreement, is not bound by collective agreements subsequent to the one which was in force at the time of the transfer of the business. The wording of the directive does not in any way indicate that the Community legislature intended that the transferee be bound by collective agreements other than the one in force at the time of the transfer and, consequently, that the terms and conditions be subsequently amended through the application of a new collective agreement, to which the transferee is not party, concluded after the transfer. Such an assessment is consistent with the objective of the directive, which is merely to safeguard the rights and obligations of employees in force on the day of the transfer; it was not intended to protect mere expectations to rights and, therefore, hypothetical advantages flowing from future changes to collective agreements, by disregarding the interests of the transferee, who must be in a position to make the adjustments and changes necessary to carry on his operations. (see paras 29, 31, 37, operative part)