Opinion of the Advocate General — ECLI:EU:C:2004:504
Date: 2004-09-09
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Transport
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

Summary of the Judgment 1. Transport – Air transport – Access to the groundhandling market at Community airports – Power of the Member States to ensure an adequate level of social protection for the staff of undertakings providing groundhandling services – Limits (Council Directive 96/67) 2. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Transfer – Meaning – National provision guaranteeing that existing employment levels are to be maintained and that labour relations with staff under the previous management arrangements are to be continued where there is the transfer of an activity irrespective of the nature of the transaction concerned – Excluded (Council Directive 2001/23) 1. The power to ensure an adequate level of social protection for the staff of undertakings providing groundhandling services, which the Member States retain under Directive 96/67 on access to the groundhandling market at Community airports, does not confer an unlimited jurisdiction and must be exercised in a manner that does not prejudice the effectiveness of that directive and the objectives it pursues. The aim of the directive is to ensure the opening up of the groundhandling market which must help, in particular, to reduce the operating costs of airlines. (see paras 31-32) 2. A national provision which guarantees that existing employment levels are to be maintained and that labour relations with staff under the previous management arrangements are to be continued which applies, irrespective of the nature of the transaction concerned, to any ‘transfer of activity’ in the sector in question plainly goes beyond the concept of transfer laid down by 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 businesses, as interpreted by the Court. It is only by having regard to the specific characteristics of each transfer of activity that it is possible to determine whether the transaction concerned constitutes a transfer for the purposes of the directive. (see paras 41-42)