Opinion of the Advocate General — ECLI:EU:C:2011:211
Date: 2011-04-05
Language of the case: Italian
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, it is clear from Collino and Chiappero that the transferred employees may rely, in their employment relationship with the transferee, on the same financial rights arising from length of service as those which they enjoyed in their employment relationship with the transferor. However, it is still possible for the transferee to alter the terms of the employment relationship, and in particular the conditions of remuneration, in the same way as the transferor was able to do under national law and in situations other than a transfer. 89. The purpose of Directive 77/187 is to prevent the transfer as such from being treated as a pretext to worsen the employee’s existing position, by reducing or ceasing to grant entitlements already acquired. The rights which matter are those which could be claimed from the transferor. Accordingly, there is no entitlement to comparability with new colleagues (who may be better off), nor is there any entitlement to retrospective extension of more favourable arrangements made by the transferee in respect of the years of service accrued with the transferor. (47) 90. The content of the rights and obligations which are transferred depends on the applicable national law and will therefore vary. As the Court has reiterated, Directive 77/187 does not seek to establish a uniform level of protection on the basis of common criteria. That is why, as the Court stated in Foreningen af Arbejdsledere i Danmark, (48) that directive can be relied on only to ensure that the employee is protected in his relations with the transferee to the same extent as he was in his relations with the transferor under the legal rules of the Member State concerned. (49) 91. It follows that the transferred employees are entitled to have their entire length of service with the transferor taken into account for the purposes of calculating their remuneration only where the contract of employment concluded with the transferor granted such a right and where that right has not been legitimately altered by the transferee, irrespective of the transfer of an undertaking. 92. We have seen that, under the CCNL for local authority employees, remuneration was calculated mainly on the basis of the type of function performed and by including additional elements of pay, and therefore not primarily on the basis of length of service. In accordance with the equivalence approach, transferred employees may not, therefore, on the basis of Article 3(1) of Directive 77/187, require the transferee to take into account the entire length of service completed with the transferor. 93. In any event, in view of my previous comments on the scope of Article 3(2) of that directive as interpreted by the Court, I doubt that, in a situation where there is a changeover of collective agreements such as that in the main proceedings, that provision allows employees to claim from the transferee any financial rights arising from length of service to which they were entitled under the collective agreement applicable to the transferor. 94. It is also necessary to point out that the existence of inequalities in pay in relation to employees who were already employed by the State is not, in itself, contrary to Directive 77/187. That directive does not go so far as to require that, through a legal fiction, the employees of the first employer should, retrospectively, be treated in the same way as the employees of the second employer and granted exactly the same rights as the latter. That directive introduces the principle of the continuation of the employment relationship and the safeguarding of working conditions, rather than that of altering those conditions for the purpose of bringing them into line with the working conditions of employees who have always been employed by the new employer. 95. However, Delahaye (50) casts doubt on the scope of Directive 77/187 with regard to the recognition of the length of service of transferred employees in so far as the Court appears to be concerned with equal treatment between transferred employees and employees already working for the transferee. 96. The facts of the case giving rise to that judgment are as follows. Ms Delahaye was an employee of an association whose activity was transferred to the Luxembourg State. Accordingly, she was taken on as an employee of the Luxembourg State. By virtue of the Grand-Ducal regulation on the remuneration of State employees, Ms Delahaye was then allocated a lower remuneration than that she had received under the contract concluded with her original employer. (51) 97. In that case, the question referred by the Luxembourg Administrative Court sought, in essence, to know whether Directive 77/187 precluded, in the event of a transfer of an undertaking from a legal person governed by private law to the State, the latter, as new employer, from reducing the amount of the remuneration of the employees concerned for the purpose of complying with the national rules in force for public employees 98. According to the Court of Justice, which relies on its case-law and, in particular, on Mayeur (C-175/99 [2000] ECR I-7755) ‘[s]ince Directive 77/187 is intended to achieve only partial harmonisation of the field in question ... it does not preclude, in the event of a transfer of an activity to a legal person governed by public law, the application of national law which prescribes the termination of contracts of employment governed by private law’. (52) The Court states, however, that ‘such a termination constitutes, in accordance with Article 4(2) of Directive 77/187, a substantial change in working conditions to the detriment of the employee resulting directly from the transfer, so that the termination of those contracts of employment must, in such circumstances, be regarded as resulting from the action of the employer’. (53) 99. Transposing that reasoning to the case at issue, the Court holds that ‘[t]he same must apply where ... application of the national rules governing the position of State employees entails a reduction in the remuneration of the employees concerned by the transfer. Such a reduction must, if it is substantial, be regarded as a substantial change in working conditions to the detriment of the employees in question, within the meaning of Article 4(2) of Directive [77/187]’. (54) 100. The Court’s acknowledgment of such a possibility on the part of the public authorities is, however, then qualified where it states that ‘the competent authorities responsible for applying and interpreting the national law relating to public employees are obliged to do so as far as possible in the light of the purpose of Directive 77/187’. From that perspective, the Court notes that ‘[i]t would be contrary to the spirit of that directive to treat an employee taken over from the transferor without taking length of service into account, in so far as the national rules governing the position of State employees take a State employee’s length of service into consideration for calculating his remuneration.’ 101. Collino and Chiappero and Delahaye may therefore appear to be difficult to reconcile as they adopt two different approaches. While the first is based on the idea of equivalent protection for employees in the event of transfers of undertakings, the second emphasises equal treatment between the transferred employees and the employees already working for the transferee. 102. Although equal treatment of the transferred employees and the employees already working for the transferee is desirable in the event of transfers of undertakings, it is not, in my view, required by Directive 77/187. It seems to me to be more consistent with the spirit of that directive to adopt the approach based on equivalent protection inherent in the subrogation mechanism which was adopted by the Court in Collino and Chiappero. 103. I conclude from all of those considerations that, in a situation such as that in the main proceedings, where, first, the conditions of remuneration provided for by the collective agreement applicable to the transferor are not based primarily on the criterion of length of service completed with that employer and, secondly, the collective agreement applicable to the transferee replaces that which was applicable to the transferor, Article 3(1) and (2) of Directive 77/187 must be interpreted as not requiring the transferee to take into account the length of service completed with the transferor by the transferred employees for the purposes of calculating the remuneration of those employees, even though the collective agreement applicable to the transferee provides that remuneration should be calculated primarily on the basis of the length-of-service criterion. C – The fourth question 104. By its fourth question, the national court seeks to ascertain whether several general principles of EU law preclude the adoption by a Member State of a national provision such as Article 1(218) of Law No 266/2005. 105. It is necessary to recall the context in which that question arises. By adopting Article 1(218) of Law No 266/2005, the Italian legislature sought to clarify the scope it intended to give to Law No 124/99 as regards the issue of whether the transfer of ATA employees was to be accompanied by the State’s taking into account the entire length of service completed by those employees with the local authorities. Taking the opposite view to the case-law of the Corte Suprema di Cassazione, that legislature considered that the remuneration of transferred employees should be established ‘on the basis of the full financial remuneration earned at the time of the transfer, with the payment of a salary equal to, or immediately below, the annual salary earned as at 31 December 1999, comprising salary, individual length‑of‑service allowance and any payments where appropriate, provided for by the [CCNL for local authority employees] in force at the date of transfer.’ The Italian legislature thus stated that, despite the prevailing interpretation adopted by the national courts, Law No 124/99 should not be interpreted as basing the calculation of the remuneration of the transferred employees on the criterion of length of service completed with the local authorities. 106. We have seen that that position taken by the Italian legislature may not, in my view, be regarded as being contrary to Directive 77/187 as that directive does not, in a situation such as that at issue in the main proceedings, require the entire length of service previously completed by the transferred employees with the local authorities to be taken into account. 107. In so far as the interpretation of Law No 124/99 given in Article 1(218) of Law No 266/2005 has an immediate effect on a whole series of pending judicial proceedings, including those brought by Ms Scattolon, and this favours the position taken by the Italian State, the national court also seeks to ascertain whether or not such intervention by the Italian legislature complies with the general principles of EU law. It is clear from both the order for reference and the written and oral observations submitted to the Court that that question relates, in the first place, to the interpretation of the principle of effective legal protection and, in particular, the right to a fair trial. (55) 108. In accordance with settled case-law, the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member states and enshrined in Articles 6 and 13 of the ECHR. (56) That principle was reaffirmed by Article 47 of the Charter, which has acquired, since the entry into force of the Treaty of Lisbon, ‘the same legal value as the Treaties’. (57) Since the Charter now occupies a central place in the system of protection of fundamental rights in the Union, it must, in my opinion, constitute the reference legislation each time the Court is called upon to rule on the compliance with an EU measure or a national provision with the fundamental rights protected by the Charter. (58) 109. Before providing, where appropriate, the national court with the interpretative guidance enabling it to determine whether Article 1(218) of Law No 266/2005 complies with Article 47 of the Charter, it is necessary to ascertain whether the Court does indeed have jurisdiction to do so. 1. The jurisdiction of the Court to answer the fourth question 110. According to the type of situation brought before it, (59) the Court requires the Member States to comply with the fundamental rights protected in the Community legal order, first, where those States implement EU law and, secondly, where national law falls within the scope of EU law. 111. Thus, according to the case-law of the Court, the requirements flowing from the protection of general principles recognised in the Community legal order, including fundamental rights, are also binding on Member States when they implement Community rules, and consequently they are bound, as far as possible, to apply the rules in accordance with those requirements. (60) 112. Furthermore, the Court has consistently held that, where national legislation falls within the field of application of Community law, the Court, in a reference for a preliminary ruling, must give the national court all the guidance as to interpretation necessary to enable it to assess the compatibility of that legislation with the fundamental rights – as laid down, in particular, in the ECHR – whose observance the Court ensures. (61) However, the Court has no such jurisdiction with regard to legislation which does not fall within the framework of Community law and where the subject-matter of the case has no connection with Community law. (62) 113. In view of the answer which I propose the Court should give to the first question, that is to say that the transfer at issue in the main proceedings constitutes a transfer of an undertaking within the meaning of Directive 77/187 and must therefore take place in accordance with the rules laid down in that directive (as transposed by Article 2112 of the Italian Civil Code and Article 34 of Decree-Law No 29/93), the present case clearly differs from the situations which gave rise to the decisions in which the Court declared that it did not have jurisdiction to interpret general principles and fundamental rights on the grounds that the case did not have a sufficient connection with EU law. (63) 114. The purpose of Law No 124/99, as made clear by the Italian legislature in 2005, is to define one of the conditions for the transfer of local authority ATA employees to the State, namely the method for calculating their remuneration following the transfer. In so far as it concerns a transfer that falls within the scope of Directive 77/187, such legislation must be regarded as having a sufficient connection with EU law. Since the contested national legislation indeed falls within the framework of EU law, the Court has jurisdiction to provide the national court with the guidance necessary to determine whether that legislation complies with the principle of effective legal protection. (64) 115. The same must be true, in my view, in respect of Article 47 of the Charter. 116. We know that, in order to define the scope of the Charter, its authors adopted the wording used in Wachauf. (65) Article 51(1) of the Charter thus provides that the provisions of the Charter apply to the Member States ‘only when they are implementing Union law’. 117. In the light of that wording, the issue of whether the scope of the Charter, as laid down in Article 51(1) therein, coincides with that of general principles of EU law is disputed, and as yet the case-law of the Court provides no clear answer. (66) While those who favour a restrictive interpretation of the concept of implementation of EU law submit that that concept refers only to a situation in which a Member State acts as a servant of the Union, those who favour a broader view consider that that concept refers more widely to a situation in which national legislation falls within the scope of EU law. 118. In my view, the wording adopted by the authors of the Charter does not mean that they sought to restrict the scope of that Charter in relation to the case-law definition of the scope of general principles of EU law. That is demonstrated by the explanations relating to Article 51(1) of the Charter, which, in accordance with the last paragraph of Article 6(1) TEU and Article 52 of the Charter, must be taken into account for the purpose of interpreting the Charter. 119. I would note, in that regard, that those explanations indicate that, as regards the Member States, ‘it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law’. Furthermore, those explanations concern the case-law relating to the various cases where there is a connection between national legislation and EU law, to which I referred above. In my view, those two elements allow the Court to adopt a broad interpretation of Article 51(1) of the Charter without distorting the intention of the Charter’s authors. (67) It could thus be accepted that that article, read in the light of the explanations relating to it, must be interpreted as meaning that the provisions of the Charter apply to the Member States where they act within the scope of EU law. Furthermore, when referring to the specific case of directives, the concept of implementation of EU law should not be restricted merely to measures transposing that law. Such a concept should, in my view, be understood as referring to subsequent and specific applications of rules laid down by a directive, (68) as well as, more generally, to all situations in which national legislation ‘concerns’ or ‘affects’ a matter governed by a directive the period prescribed for the transposition of which has expired. (69) 120. Besides the fact that a restriction of the scope of the Charter in relation to the scope of the fundamental rights recognised as general principles of EU law was not, in my view, the intention of the authors of the Charter, a strict interpretation of Article 51(1) of the Charter does not appear desirable. Indeed, it would lead to the creation of two separate systems of protection of fundamental rights within the Union, according to whether they stem from the Charter or from general principles of law. That would weaken the level of protection of those rights, which could be regarded as being contrary to the wording of Article 53 of the Charter, which provides, in particular, that ‘[n]othing in [the] Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law …’. 121. Since the Court’s jurisdiction to answer the fourth question seems to me to be established, the national court should now be provided with the information which will enable it to assess whether Article 1(218) of Law No 266/2005 is consistent with Article 47 of the Charter. 2. The interpretation of Article 47 of the Charter 122. As confirmed by Article 47 of the Charter, the fundamental right to effective legal protection includes the right to an effective remedy, which guarantees, in particular, a fair hearing for the applicant. In so far as Article 1(218) of Law No 266/2005 has an influence on the legal proceedings brought by Ms Scattolon, which is favourable to the Italian State, her right to an effective remedy is likely to be affected. 123. It is necessary, nonetheless, to point out that Article 52(1) of the Charter accepts that limitations may be made on the exercise of the rights and freedoms recognised by the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 124. Furthermore, Article 52(3) of the Charter states that, in so far as it contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights is to be the same as those laid down by that Convention. (70) According to the explanation given by that provision, the meaning and scope of the guaranteed rights are determined not only by the wording of the ECHR, but also, in particular, by the case-law of the European Court of Human Rights. 125. For the purposes of providing the national court with the information necessary to enable it to assess whether Article 1(218) of Law No 266/2005 is consistent with the principle of effective legal protection, I shall follow the analytical approach of the European Court of Human Rights in similar cases of alleged infringement of Article 6(1) of the ECHR as a result of the impact on pending legal proceedings of a law having retroactive effect. 126. I shall therefore examine, first of all, whether there is interference by the legislature with the administration of justice. If that is the case, I shall then need to assess whether there is an overriding reason in the public interest justifying that interference. a) The existence of interference by the legislature with the administration of justice 127. As the European Court of Human Rights held in Zielinski and Pradal & Gonzalez and Others v. France, judgment of 28 October 1999, (71) ‘while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 [of the ECHR] preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute’. (72) 128. It is clear from that judgment that the first stage of assessing whether a law having retroactive effect is consistent with Article 6(1) of the ECHR involves determining whether there is any impact on cases pending before a court. 129. In Lilly France v. France, judgment of 25 November 2010, the European Court of Human Rights points out that it confines itself to finding that the contested law prevented a court from reaching a decision on the case at issue. (73) In Zielinski and Pradal & Gonzalez and Others v. France, it emphasises that the contested law settled once and for all the terms of the dispute before the ordinary courts and did so retrospectively. (74) The jurisdiction of the court called upon to give judgment in the case is therefore rejected in favour of the interpretation given by the national legislature. Even if the legislature has sought to preclude applying the law having retroactive effect to final decisions, interference by the legislature with the administration of justice is proven where the court is bound by the wording of the legislation. 130. In the context of the main proceedings, Article 1(218) of Law No 266/2005 provides an interpretation of Article 8(2) of Law No 124/99 whose effects are retroactive ‘subject to the enforcement of judicial decisions delivered as at the date of entry into force of the present law’. 131. The condition of interference by the legislature with the administration of justice appears to be met. It is common ground that the new legislative interpretation has a direct impact on the proceedings between Ms Scattolon and the State in a manner unfavourable to the applicant, since the interpreting law rejects the interpretation favourable to the transferred employees which had previously been upheld by the Corte Suprema di Cassazione and most of the courts adjudicating on the substance. It is of little importance, in that regard, whether Article 1(218) of Law No 266/2005 is understood as being a genuine rule of interpretation or rather as a rule with innovative content. 132. It is now necessary to assess whether such interference may be regarded as being justified by an overriding reason in the public interest. b) The existence of an overriding reason in the public interest justifying interference 133. In general, the case-law of the European Court of Human Rights seeks to preclude financial grounds from being capable, per se, of justifying interference by the legislature with the administration of justice. (75) However, in National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. the United Kingdom, judgment of 23 October 1997, (76) the European Court of Human Rights ruled that the State’s concern for maintaining the level of tax revenues constitutes a reason in the public interest. (77) It is interesting to note that, in that case, the retroactive law sought to restore the original intention of the legislature and remedy technical deficiencies in the drafting of the legislation. (78) Furthermore, OGIS-Institut Stanislas, OGEC St. Pie X and Blanche de Castille and Others v. France, judgment of 27 May 2004, concerns the issue of closing a gap in the law. (79) 134. It is clear from that case-law that the European Court of Human Rights tends to accept the existence of a reason in the public interest where it is a question of securing sound legislation (including, in particular, the remedying of technical deficiencies and the closing of a gap in the law) or of favouring the attainment of a project which is beneficial to the majority. (80) Financial reasons are not sufficient, per se, but may succeed where they are accompanied by another objective in the public interest. 135. In the main proceedings, the Italian Government justifies the intervention of Law No 266/2005 by the fact that the wording of Article 8(2) of Law No 124/99 was vague and had given rise to a number of disputes. That justification may be likened to that of seeking to secure sound legislation, that is to say legislation whose scope is made clear. 136. With regard, however, to the argument that it was necessary to put a stop to differences in case-law, in addition to the fact that such differences must be established, it should be noted that the European Court of Human Rights is reluctant to accept that argument. Indeed, in Zielinski and Pradal & Gonzalez and Others v. France, that court ruled that differences in case-law are inherent in any legal system. In the view of that court, therefore, that argument is not, in itself, relevant. 137. If it is established that the Italian legislature sought, in 1999, to leave it to the social partners and the legislature to implement specific conditions for the incorporation of transferred employees, in particular as regards the remuneration of those employees after the transfer, it might be possible to accept subsequent intervention by that legislature aimed at putting a stop to case-law which is in line neither with the original intention of that legislature nor with the conditions for application defined by the social partners and later validated by the legislature. I would point out, in that regard, that the clarifications provided by the legislature in 2005 confirm the interpretation adopted by the social partners following Law No 124/99, which drew up, as requested by the Ministerial Decree of 23 July 1999, criteria for the incorporation of transferred employees. Accordingly, it could be accepted, as the Corte Suprema di Cassazione itself recognised in a judgment of 16 January 2008, (81) that the clarifications provided by the Italian legislature in 2005 relating to the basis for calculating the annual salary of transferred employees were in line with one of the possible conditions for the legal and financial recognition of the length of service completed. The Italian legislature therefore opted for a partial recognition of the length of service based, for the purpose of the classification of the transferred employees, on the remuneration received by them as at 31 December 1999. 138. The Italian Government puts forward a ground based on the need to guarantee the budget neutrality of the transfer operation for the purposes of justifying that choice. 139. It may seem reasonable that the Italian State sought to group together into one body ATA employees who were working together but who were subject to two different schemes and, in particular, that it wished to harmonise the conditions of remuneration of those employees by ensuring, at the same time, that that operation was budget neutral, that is to say, that it was carried out at the same cost. 140. It is important, however, for the Italian Government to show that the requirement of budget neutrality was actually at the heart of the original reform and that the intervention by the legislature in 2005 indeed sought to safeguard that objective. In particular, it is for it to show that solely the interpretation based on the length of service being only partially taken into account was capable of guaranteeing the budget neutrality of the reform. 141. I would note that the Italian Government claimed before the Court that the original reform in 1999, together with the fact that the length of service of the transferred employees was only partially taken into account, did not adversely affect the financial situation of those employees. Faced with that claim, Ms Scattolon did not, in my view, succeed in rigorously and clearly demonstrating that the transferred employees’ financial situation worsened after the transfer. (82) The information available to me does not therefore convince me that the legislature’s intervention in 2005 had any aim other than that of guaranteeing the budget neutrality of the reform. 142. It is ultimately for the national court to verify, in particular on the basis of statistical evidence relating to the comparative costs of the two interpretations put forward, (83) that the interpretation adopted by the Italian legislature in 2005 is indeed capable of satisfying the legitimate objective of budget neutrality of an administrative reform such as that at issue in the main proceedings and that it has not disproportionately prejudiced the right protected by Article 47 of the Charter. 143. I conclude from those considerations that Article 47 of the Charter must be interpreted as not precluding a legislative provision such as that contained in Article 1(218) of Law No 266/2005, provided that it is established, in particular on the basis of statistical evidence, that the adoption of that provision indeed sought to guarantee the budget neutrality of the transfer of local authority ATA employees to the State, which it is for the national court to verify. IV – Conclusion 144. In the light of the above considerations, I propose that the Court should answer the questions referred by the Tribunale Ordinario di Venezia as follows: (1) Council Directive 77/187/EEC of 14 February 1977 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 applying to a transfer such as that at issue in the main proceedings, namely the transfer of employees providing auxiliary cleaning, maintenance and caretaking services in State educational establishments from local authorities (municipalities and provinces) to the State. (2) In a situation such as that in the main proceedings where, first, the conditions of remuneration provided for by the collective agreement applicable to the transferor are not based primarily on the criterion of the length of service completed with that employer and, secondly, the collective agreement applicable to the transferee replaces that which was applicable to the transferor, Article 3(1) and (2) of Directive 77/187 must be interpreted as not requiring the transferee to take into account the length of service completed with the transferor by the transferred employees for the purposes of calculating the remuneration of those employees, even where the collective agreement applicable to the transferee provides that remuneration is to be calculated primarily on the basis of the length-of-service criterion. (3) Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a legislative provision such as that contained in Article 1(218) of Law No 266/2005 laying down provisions relating to the drawing up of the annual and multiannual budget of the State (the 2006 Finance Law) [Legge no. 266/2005 – disposizioni par la formazione del bilancio annuale a pluriennale dello Stato (legge finanziaria 2006)] of 23 December 2005, provided that it is established, in particular on the basis of statistical evidence, that the adoption of that provision indeed sought to guarantee the budget neutrality of the transfer of ATA (administrative, technical and auxiliary) employees from local authorities to the State, which it is for the national court to verify. 2 – Original language: French. 3 – OJ 1977 L 61, p. 26 4 – ‘The Charter’. 5 – OJ 1998 L 201, p. 88. 6 – See, in particular, by analogy, Case C‑340/01 Abler and Others [2003] ECR I‑14023, paragraph 5, and Case C‑499/04 Werhof [2006] ECR I‑2397, paragraphs 15 and 16. 7 – Council Directive 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 (OJ 2001 L 82, p. 16). 8 – Ordinary Supplement to GURI No 30 of 6 February 1993, ‘Decree-Law No 29/93’. 9 – GURI No 107 of 10 May 1999, ‘Law No 124/99’. 10 – GURI No 16 of 21 January 2000, ‘the Ministerial Decree of 23 July 1999’. 11 – GURI No 162 of 14 July 2001, ‘the Ministerial Decree of 5 April 2001’. 12 – Ordinary Supplement to GURI No 302 of 29 December 2005, ‘Law No 266/2005’. 13 – GURI of 4 July 2007. 14 – GURI of 2 December 2009. 15 – GURI of 18 June 2008. 16 – Case C‑298/94 [1996] ECR I‑4989. 17 – Paragraph 14. 18 – Paragraphs 13 and 15, respectively. 19 – Paragraph 16. 20 – Paragraph 17. As pointed out by Advocate General Alber in point 49 of his Opinion in Case C‑343/98 Collino and Chiappero [2000] ECR I‑6659, ‘[i]n its reasoning the Court focused on the fact that the restructuring did not affect any economic activities. It may be concluded that the scope of … [D]irective [77/187] is not determined by the transferor and its status under public or private law, as long as the transferor is exercising an economic activity. It is not therefore the nature of the transferor which is decisive, but the nature of the activity carried on. The exercise of public authority cannot be the subject of a business transfer within the meaning of [that] directive’. 21 – See, in particular, Joined Cases C‑173/96 and C‑247/96 Hidalgo and Others [1998] ECR I‑8237, paragraph 24, for a home-help service to persons in need and the activity of providing surveillance; Collino and Chiappero, paragraphs 31 and 32, and Case C‑175/99 Mayeur [2000] ECR I‑7755, paragraphs 28 to 40. 22 – C‑151/09 [2010] ECR I-0000. 23 – Paragraph 12. 24 – C‑463/09 [2011] ECR I-0000. 25 – Paragraph 11. 26 – .UGT-FSP, paragraph 23 and case-law cited, and CLECE, paragraph 26 and case-law cited. 27 – .CLECE, paragraph 29 and case-law cited. 28 – .Ibid., paragraph 30 and case-law cited. 29 – See, in that regard, Collino and Chiappero, paragraph 34 and case-law cited. 30 – .CLECE, paragraph 34 and case-law cited. 31 – .Ibid., paragraph 35 and case-law cited. 32 – .Ibid., paragraph 36 and case-law cited. 33 – .Ibid., paragraph 39 and case-law cited. 34 – By contrary inference, 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 transferee (see CLECE, paragraph 41). 35 – See Case 105/84 Foreningen af Arbejdsledere i Danmark [1985] ECR 2639, paragraphs 26 and 27. 36 – See p. 13 of the French version of the order for reference. 37 – .Werhof, paragraph 28. 38 – See, in that regard, N. Moizard, ‘Droit social de l’Union européenne’, Jurisclasseur Europe, 2010, fascicule 607, for whom the fact that Article 3(2) of Directive 77/187 refers to ‘the application of another collective agreement’ means that, ‘where another collective agreement applies to the transferee, that immediately replaces the agreement of the same level which originally governed the transferred entity’ (paragraph 33). 39 – See, in that regard, Case C‑4/01 Martin and Others [2003] ECR I‑12859, paragraph 47. 40 – Case C‑396/07 Juuri [2008] ECR I‑8883, paragraph 33. 41 – .Ibid., paragraph 34. 42 – Although certain elements of remuneration provided for in the CCNL for local authority employees were retained by the Italian legislature, that was therefore in accordance not with an obligation imposed by Directive 77/187, but solely with the intention of that legislature (those elements are the individual length-of-service allowance and three other payments). 43 – Paragraph 50. 44 – .Ibid. 45 – Paragraph 51. 46 – Paragraph 52. 47 – See point 94 of Advocate General Alber’s Opinion in Collino and Chiappero. 48 – Case 324/86 [1988] ECR 739. 49 – Paragraph 16. 50 – Case C‑425/02 [2004] ECR I‑10823. 51 – She stated that she had been classified, with no allowance for length of service, in the first grade, last step, of the salary scale, which meant that she lost 37% of her monthly salary (paragraph 17 of the judgment). 52 – .Delahaye, paragraph 32. 53 – .Ibid. 54 – .Ibid., paragraph 33. 55 – It should be pointed out that, at the same time, three applications dealing with a similar problem were brought before the European Court of Human Rights, on the basis of Article 6(1) of the ECHR. They are Application Nos 43549/08 Agrati and Others v. Italy, 5087/09 Carlucci v. Italy, and 6107/09 Cioffi and Others v. Italy, On 5 November 2009, the Second Section of the European Court of Human Rights addressed the following questions to the parties: ‘1. Does the application of Article 1 of [Law No 266/2005] to proceedings already pending before the courts undermine the rule of law or the fairness of the proceedings as guaranteed by Article 6 of the [ECHR]? 2. If so, is that interference justified by overriding reasons in the public interest and was it sufficiently proportionate to the objective(s) pursued by the legislature? 3. In view of the adoption of Article 1 of [Law No 266/2005] and its application by the national courts in proceedings which are already pending, was there an infringement of the right of the applicants to peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No 1 [to the ECHR]?’ 56 – See, in particular, Case C‑279/09 DEB Deutsche Energiehandels-und Beratungsgesellschaft [2010] ECR I‑0000, paragraph 29 and cited case-law. 57 – See the first paragraph of Article 6(1) TEU. 58 – See, to that effect, concerning assessment of the validity of an EU measure, Joined Cases C‑92/09 and C-93/09 Volker and Markus Schecke and Eifert [2010] ECR I‑0000, paragraphs 45 and 46. 59 – According to whether a Member State acts as a ‘servant of the Union’ by adopting the national measures required by Community rules, whether it adopts national legislation that derogates from a freedom of movement recognised by the Treaty or, more broadly, whether it seeks to obtain the objective sought by Community regulations in adopting the national provisions which it considers necessary for that purpose. For an example of those three situations, see, in particular and respectively, Case 5/88 Wachauf [1989] ECR 2609; Case C‑260/89 ERT [1991] ECR I‑2925 and Joined Cases C‑20/00 and C‑64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I‑7411. 60 – See, in particular, Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 105 and case-law cited. 61 – See, in particular, Case C‑276/01 Steffensen [2003] ECR I‑3735, paragraph 70 and case-law cited. 62 – See, in particular, order of 27 November 2009 in Case C‑333/09 Noël, paragraph 11 and case‑law cited. 63 – See, in particular, Case C‑144/95 Maurin [1996] ECR I‑2909 and Case C‑309/96 Annibaldi [1997] ECR I‑7493, as well as the orders in Case C‑328/04 Vajnai [2005] ECR I‑8577, of 25 January 2007 in Case C‑302/06 Koval’ský and Case C‑339/10 Asparuhov Estov and Others [2010] ECR I‑0000. 64 – Of course, the existence of a sufficient connection with EU law must be clear from the order for reference. Where no such connection is shown, the Court will declare that it manifestly does not have jurisdiction, as was the case with the order in Case C‑287/08 Savia and Others [2008], a case similar to that under consideration. 65 – Paragraph 19 of the judgment. 66 – See, in particular, on that issue, Lenaerts, K., and Gutiérrez-Fons, J. A., ‘The constitutional allocation of powers and general principles of EU law’, Common Market Law Review, 2010, No 47, p. 1629, in particular p. 1657 to 1660; Tridimas, T., ‘The General Principles of EU Law’, 2nd edition, Oxford University Press, 2006, p. 363; Egger, A., ‘EU-Fundamental Rights in the National Legal Order: The Obligations of Member States Revisited’, Yearbook of European Law, Vol. 25, 2006, p. 515, in particular p. 547 to 550 and Jacqué, J. P., ‘La Charte des droits fondamentaux de l’Union européenne: aspects juridiques généraux’ REDP, Vol. 14, No 1, 2002, p. 107, in particular p. 111. 67 – See Rosas, A., and Kaila, H., ‘L’application de la Charte des droits fondamentaux de l’Union européenne par la Cour de justice – un premier bilan’. Il Diritto dell’Unione European, 1/2011. Those authors consider, referring to the explanations relating to the Charter, that the expression ‘when they are implementing Union law’, used in Article 51(1) of the Charter, ‘call for quite a broad interpretation’. In their view, ‘[w]hat matters, in the light of the case-law of the Court, is the existence of a connection with that law’. I would also note that, in its order in Asparuhov Estov and Others, the Court states that its jurisdiction to interpret the Charter is not established, in so far as the order for reference contains nothing showing that the national decision at issue ‘constitutes a measure implementing EU law or contains other connections with the latter’ (paragraph 14). That reference to ‘other connections’ with EU law rather supports a broader understanding by the Court of its jurisdiction to interpret the Charter. 68 – Case C‑145/09 Tsakouridis [2010] ECR I-0000, paragraphs 50 to 52. 69 – Case C‑555/07 Kücükdeveci [2010] ECR I-0000, paragraphs 22 to 26. 70 – However, that provision does not prevent Union law providing more extensive protection (see the second sentence of Article 52(3) of the Charter). 71 – .Reports of Judgments and Decisions 1999-VII. 72 – § 57. 73 – § 49. 74 – § 58. 75 – See, in particular, Eur. Court HR Lecarpentier and Other v. France, judgment of 14 February 2006 (§ 47), and Cabourdin v. France, judgment of 11 April 2006 (§ 37). 76 – .Reports of Judgments and Decisions, 1997-VII. 77 – § 80 to 83. 78 – § 81. 79 – § 71. 80 – See Sudre, F., Marguénaud, J.‑P., Andriantsimbazovina, J., Gouttenoire, A., and Levinet, M., Les grands arrêts de la Cour européenne des droits de l’homme, 5th edition, PUF, Paris, 2009, p. 307. 81 – Judgment No 677 of the Chamber of Employment. 82 – It is clear from the hearing held before the Court on 1 February 2011 that the few hundred Euros which Ms Scattolon stated that she had lost following the transfer should instead be regarded as an economic loss in relation to the salary increase to which she could have been entitled if her total length of service had been recognised. Furthermore, with regard to any loss of payments provided for by the CCNL for local authority employees, other than those which were renewed under Article 1(218) of Law No 266/2005, there is nothing to indicate that the CCNL for schools does not, in general, contain their equivalents. 83 – The need for such statistical evidence arises, in particular, from Lilly France v. France, (§ 51).