Opinion of the Advocate General — ECLI:EU:C:2010:636
Date: 2010-10-26
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Scope (Council Directive 2001/23, Art. 1(1)(a) and (b)) Article 1(1)(a) and (b) 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 must be interpreted as meaning that that directive does not apply to a situation in which a municipal authority which has contracted out the cleaning of its premises to a private company decides to terminate its contract with that company and to undertake the cleaning of those premises itself by hiring new staff for that purpose. It is true that cleaning services can be regarded as an activity essentially based on manpower and, consequently, a group of employees who are permanently assigned to the common task of cleaning may, in the absence of other factors of production, amount to an economic entity. That entity’s identity must nonetheless be retained after the transfer in question. However, the mere fact that the activity carried out by a private company and that carried out by the municipal authority are similar, even identical, does not lead to the conclusion that an economic entity has retained its identity. An entity cannot be reduced to the activity entrusted to it. Its identity emerges from several indissociable factors, such as its workforce, its management staff, the way in which its work is organised, its operating methods or indeed, where appropriate, the operational resources available to it. In particular, the identity of an economic entity cannot be retained if the majority of its employees are not taken on by the supposed transferee. (see paras 39, 41, 43, operative part)