Judgment — ECLI:EU:C:2015:781
Date: 2015-11-26
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Sixth Chamber), 26 November 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of relevant EU law — Reformulation of the questions (Art. 267 TFEU) 2. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees’ rights — Directive 2001/23 — Scope — Public undertaking responsible for the service of handling intermodal transport units, entrusting the operation of that activity to another undertaking — Provision to the latter undertaking of the necessary facilities and equipment — Employees of the latter undertaking not taken on after termination of the contract — Included (Council Directive 2001/23, Art. (1)) 1. See the text of the decision. (see para. 22) 2. Article 1(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 must be interpreted as meaning that the scope of that directive covers a situation in which a public undertaking, responsible for the economic activity of handling intermodal transport units, entrusts, by a public service operating agreement, the performance of that activity to another undertaking, providing to the latter undertaking the necessary facilities and equipment, which it owns, and subsequently decides to terminate that agreement without taking over the employees of the latter undertaking, on the ground that it will henceforth perform that activity itself with its own staff. In that respect, an interpretation of Article 1(1)(b) of Directive 2001/23 which exclude from the scope of that directive a situation in which the tangible assets essential to the performance of the activity in question have always been owned by the transferee would deprive that directive of part of its effectiveness. In addition, the failure of the new contractor to take over, in terms of numbers and skills, an essential part of the staff which its predecessor employed to perform the same activity is not sufficient to preclude the existence of a transfer of an entity which retains its identity within the meaning of Directive 2001/23 in a sector where the activity is based essentially on equipment. Any other conclusion would run counter to the principal objective of Directive 2001/23, which is to ensure the continuity, even against the wishes of the transferee, of the employment contracts of the employees of the transferor. (see paras 40, 41, 44, operative part)