Opinion of the Advocate General — ECLI:EU:C:2005:395
Date: 2005-06-16
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 – Examination of whether there is a transfer of an undertaking – Transfer of the assets from the original contractor to the new contractor – Requirement that those assets be transferred to that party for independent commercial use – None – Requirement to have regard to all the facts (Council Directive 2001/23, Art. 1) Article 1 of Council Directive 2001/23/EC 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, in examining whether there is a transfer of an undertaking or business within the meaning of that article, in the context of a fresh award of a contract and having regard to all the facts, the transfer of the assets for independent commercial use is not an essential criterion for the transfer of those assets from the original contractor to the new contractor. The transfer of assets is only a single factor in the overall assessment which must be made by the national court when examining whether or not there is a transfer of an undertaking or business within the meaning of that provision. (see paras 42, 44, operative part)