Order — ECLI:EU:C:2005:315
Date: 2005-05-26
Language of the case: German
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;Direct effect
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Order 1. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Articles 3(1) and 1(1)(c) – Effect in relations between the State and individuals – Limited liability company governed by private law, whose sole shareholder is a social assistance association governed by public law – Body subject to those articles (Council Directive 2001/23, Arts 1(1)(c), first sentence, and 3(1)) 2. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Articles 3(1) and 1(1)(c) – Possibility of relying on those articles against an individual – Excluded – Not possible for a State entity transferring its operations to force an employee to continue his employment relationship with a transferee (Council Directive 2001/23, Arts 1(1)(c) and 3(1)) 1. A limited liability company governed by private law, whose sole shareholder is a social assistance association governed by public law, is among the entities subject to Article 3(1) and the first sentence of Article 1(1)(c) 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, since both provisions satisfy the conditions for having direct effect. The fact that, due to a share transfer which is subject only to the agreement of the board of that association, the shareholding of that association is to be transferred to a limited liability company, whose sole shareholder is a private association, is irrelevant in that regard, since such a plan is not, as such, able to alter the legal nature of the first company. (see paras 28-30, operative part 1) 2. A State entity which transfers its operations may not rely on Article 3(1) and Article 1(1)(c) 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, against an employee in order to force him to continue his employment relationship with a transferee. A directive cannot by itself create obligations for a private individual and a provision of a directive may not therefore be relied upon as such against the latter. (see paras 32-33, 35, operative part 2)