Judgment — ECLI:EU:C:2009:363
Date: 2009-06-11
Language of the case: Italian
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Concepts: Employment protection and protection of employees in the event of the insolvency of their employer
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

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. 3(1), (3) and (4)) 2. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 (Council Directive 2001/23, Art. 4(1)) 3. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 (Council Directive 2001/23, Art. 5(2)(a)) 4. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 (Council Directive 2001/23, Arts 3(3), 4 and 5(3)) 1. Article 3(4) 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 provides for an exception to the application of Article 3(1) and (3) which require the transferee to maintain, for at least a year, the rights and obligations arising from a contract of employment or from an employment relationship, as well as the terms and conditions agreed in any collective agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement. That exception relates to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary company or intercompany pension schemes outside the statutory social security schemes. Thus, having regard to the general objective of safeguarding the rights of employees in the event of transfers of undertakings pursued by the Directive, the exception to that rule must be interpreted strictly. It follows that only benefits granted outside the statutory social security schemes which are exhaustively listed in Article 3(4)(a) of Directive 2001/23 may be excluded from the obligation to transfer employees’ rights. Furthermore, in accordance with Article 3(4)(b) of Directive 2001/23, even where the Member States apply that exception, they must adopt the measures necessary to protect the interests of employees in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under supplementary schemes referred to in Article 3(4)(a). (see paras 29-32) 2. The fact that an undertaking is declared to be in critical difficulties under national law cannot necessarily or always imply changes in the workforce within the meaning of Article 4(1) 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. Moreover, grounds for dismissal can be applied, under the national provisions, only in specific cases of undertakings in critical difficulties. Accordingly, the procedure whereby an undertaking is declared to be in critical difficulties cannot in every case and systematically constitute an economic, technical or organisational reason entailing changes in the workforce within the meaning of Article 4(1) of that directive. (see para. 36) 3. Article 5(2)(a) 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 permits Member States, on certain conditions, not to apply certain guarantees referred to in Articles 3 and 4 of that directive to transfers of undertakings provided that insolvency proceedings have been opened and that such proceedings are under the supervision of a competent public authority. The Court has held, in a preliminary ruling on whether 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, which preceded Directive 2001/23, applied to transfers of undertakings subject to a procedure whereby an undertaking is declared to be in critical difficulties under national law, that that procedure is designed to promote the continuation of its business with a view to its subsequent recovery, does not involve any judicial supervision or any measure whereby the assets of the undertaking are put under administration, and does not provide for any suspension of payments. In addition the competent national authority merely declared that the undertaking was in critical difficulties and that that declaration allows the undertaking to have the Extraordinary Redundancy Benefit Fund temporarily assume responsibility for the remuneration of all or some of its employees. In the light of those factors, it follows that the procedure whereby an undertaking is declared to be in critical difficulties cannot be regarded as pursuing an outcome analogous to that of insolvency proceedings such as those referred to in Article 5(2)(a) of Directive 2001/23, nor as being under the supervision of a competent public authority such as that referred to in the same provision. Consequently, the conditions for application of that provision are not met in proceedings for a declaration that an undertaking is in critical difficulties. (see paras 38-40) 4. Article 5(3) 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 authorises Member States to provide for alterations to the employees’ terms and conditions of employment designed to safeguard employment opportunities by ensuring the survival of the undertaking, without depriving the employees of the rights guaranteed by Articles 3 and 4 of Directive 2001/23. Alteration of the terms and conditions of employment under Article 5(3) of Directive 2001/23 cannot constitute a specific derogation from the guarantee laid down in Article 3(3) of that directive which ensures maintenance, for at least a year after the transfer, of terms and conditions of employment agreed in any collective agreement. Since the rules of Directive 2001/23 must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees, the rights and obligations arising from a collective agreement existing on the date of a transfer must, by reason of such transfer, be transferred to the transferee. It follows that the alteration of the terms and conditions of employment authorised by Article 5(3) of Directive 2001/23 assumes that the transfer of the employees’ rights to the transferor has already taken place. (see paras 44, 46)