Judgment — ECLI:EU:C:2008:574
Date: 2008-10-16
Language of the case: Spanish
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Concepts: Employment protection and protection of employees in the event of the insolvency of their employer
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 (Council Directive 2001/23, Art. 3(1)) Article 3(1) 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 does not require, in the event of transfer of an undertaking, the preservation of the lease of commercial premises entered into by the transferor of the undertaking with a third party even though the termination of that lease is likely to entail the termination of contracts of employment transferred to the transferee. It is true that the objective of that directive is to protect employees in the event of a change of employer, and that, if there is no automatic transfer of the lease, there is a risk that the transferee of the undertaking may be obliged to quit the premises, to cease business and consequently to terminate the contracts of employment of the employees concerned. However, the need to achieve that objective of protection of employees cannot permit the unequivocal wording of Article 3(1) of Directive 2001/23 to be ignored and the rights of third parties who are not connected with the transfer of the undertaking to be adversely affected, by imposing on them an obligation to accept an automatic transfer of the lease which is not clearly provided for in that directive. (see paras 42-44, 47, operative part)