Opinion of the Advocate General — ECLI:EU:C:2003:351
Date: 2003-06-17
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 
1. Social policy — Approximation of laws — Transfers of undertakings — Safeguard­
ing of employees' rights — Directive 77/187 — Rights and obligations within the 
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SUMMARY — CASE C-4/01 
meaning of Article 3 — Rights contingent upon dismissal or the grant of early 
retirement by agreement with the employer — Included 
(Council Directive 77/187, Art. 3(1)) 
2. Social policy — Approximation of laws — Transfers of undertakings — Safeguard­
ing of employees' rights — Directive 77/187 — Exceptions — Supplementary com­
pany or inter-company pension schemes — Old-age benefits — Definition — Early 
retirement benefits and benefits intended to enhance the conditions of such 
retirement — Excluded 
(Council Directive 77/187, Art. 3(3)) 
3. Social policy — Approximation of laws — Transfers of undertakings — Safeguard­
ing of employees' rights — Directive 77/187 — Transfer of obligations applicable in 
the event of the dismissal of an employee — Conditions and limitations — 
Obligations deriving from or implemented by statutory instruments — Not relevant 
(Council Directive 77/187, Art. 3) 
4. Social policy — Approximation of laws — Transfers of undertakings — Safeguard­
ing of employees' rights — Directive 77/187 — Less favourable early retirement 
terms — Acceptance by employees — Excluded — Exception — More favourable 
terms arising from a collective agreement which is no longer binding 
(Council Directive 77/187, Art. 3) 
5. Social policy — Approximation of laws — Transfers of undertakings — Safeguard­
ing of employees' rights — Directive 77/187 — Less favourable early retirement 
terms offered in breach of the public policy obligations imposed by Article 3 — 
Transferee's obligation to make good 
(Council Directive 77/187, Art. 3) 
1. Rights contingent upon dismissal or the 
grant of early retirement by agreement 
with the employer fall within the rights 
a n d o b l i g a t i o n s r e f e r r e d to in 
Article 3(1) of Directive 77/187/EEC 
on the approximation of the laws of the 
Member States relating to the safe­
guarding of employees' rights in the 
event of transfers of undertakings, 
businesses or parts of businesses. 
(see para. 30, operative part 1) 
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2. Early retirement benefits and benefits 
intended to enhance the conditions of 
such retirement, paid in the event of 
early retirement arising by agreement 
b e t w e e n the e m p l o y e r a n d the 
employee to employees who have 
reached a certain age, are not old-age, 
invalidity or survivors' benefits under 
supplementary company or inter-com­
pany pension schemes within the mean­
ing of Article 3(3) of Directive 77/187 
on the approximation of the laws of the 
Member States relating to the safe­
guarding of employees' rights in the 
event of transfers of undertakings, 
businesses or parts of businesses. 
(see para. 35, operative part 2) 
3. Article 3 of Directive 77/187 on the 
approximation of the laws of the 
Member States relating to the safe­
guarding of employees' rights in the 
event of transfers of undertakings, 
businesses or parts of businesses is to 
be interpreted as meaning that obli­
gations arising upon the grant of such 
early r e t i r ement , ar is ing from a 
contract of employment, an employ­
ment relationship or a collective agree­
ment binding the transferor as regards 
the employees concerned, are trans­
ferred to the transferee subject to the 
conditions and limitations laid down 
by that article, regardless of the fact 
that those obligations derive from 
statutory instruments or are imple­
mented by such ins t ruments and 
regardless of the practical arrange­
ments adopted for such implemen­
tation. 
(see para. 35, operative part 2) 
4. Article 3 of Directive 77/187 on the 
approximation of the laws of the 
Member States relating to the safe­
guarding of employees' rights in the 
event of transfers of undertakings, 
businesses or parts of businesses pre­
cludes the transferee from offering the 
employees of a transferred entity terms 
less favourable than those offered to 
them by the transferor in respect of 
early retirement, and those employees 
from accepting those terms, where 
those terms are merely brought into 
line with the terms offered to the 
transferee's other employees at the time 
of the transfer, unless the more favour­
able terms previously offered by the 
transferor arose from a collective 
agreement which is no longer legally 
binding on the employees of the entity 
transferred, having regard to the con­
ditions set out in Article 3(2). 
(see para. 48, operative part 3) 
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SUMMARY — CASE C-4/01 
5. Where, in breach of the public policy 
obligations imposed by Article 3 of 
Directive 77/187 on the approximation 
of the laws of the Member States 
r e l a t i ng to the s a f egua rd ing of 
employees' rights in the event of 
transfers of undertakings, businesses 
or parts of businesses, the transferee 
offered employees of the entity trans­
ferred early retirement less favourable 
than that to which they were entitled 
under their employment relationship 
w i t h t h e t r a n s f e r o r a n d t h o s e 
employees accepted such early retire­
ment, it is for the transferee to ensure 
that those employees are accorded 
early retirement on the terms to which 
they were entitled under their employ­
ment relationship with the transferor. 
(see para. 54, operative part 4) 
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