Opinion of the Advocate General — ECLI:EU:C:1996:291
Date: 1996-07-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 
1. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of work­
ers' rights — Directive 77/187 — Scope — Transfer of an undertaking being wound up by the 
court and continuing to trade — Included 
(Council Directive 77/187, Art. 1(1)) 
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SUMMARY — CASE C-319/94 
2. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of work­
ers' rights — Directive 77/187 — Employees dismissed shortly before the transfer and not 
taken on by the transferee — Ability to claim as against the transferee that the dismissal was 
unlawful — Permissible 
(Council Directive 77/187, Art. 4(1)) 
1. On a proper construction of Article 1(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, the 
directive applies in the event of the trans­
fer of an undertaking which is being 
wound up by the court if the undertaking 
continues to trade during that procedure. 
2. On a proper construction of Article 4(1) 
of Directive 77/187, 'which is designed to 
protect the rights of employees vis-à-vis 
the transferor as well as vis-à-vis the 
transferee against a dismissal whose sole 
justification is the transfer, both the trans­
feror and the transferee are entitled to 
dismiss employees for economic, techni­
cal or organisational reasons. 
Employees unlawfully dismissed by the 
transferor shortly before the undertaking 
is transferred and not taken on by the 
transferee may claim, as against the trans­
feree, that their dismissal was unlawful, 
since their contracts of employment must 
be regarded as still extant as against the 
transferee. First, employees dismissed by 
the transferor before the undertaking is 
transferred, contrary to Article 4(1) of the 
directive, must be regarded as still 
employed by the undertaking on the date 
of the transfer and, secondly, the rules of 
the directive, in particular those concern­
ing the protection of workers against dis­
missal by reason of the transfer, must be 
considered to be mandatory, so that it is 
not possible to derogate from them in a 
manner unfavourable to employees. 
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