Judgment — ECLI:EU:C:2018:559
Date: 2018-07-11
Language of the case: Spanish
Court formation: Tenth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

Summary — Judgment of the Court (Tenth Chamber) of 11 July 2018 1. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees' rights — Directive 2001/23 — Scope — Contract for the provision of services relating to the security of buildings concluded between a contracting entity and one undertaking — Termination, by the contracting entity, of such a contract, followed by the conclusion of a new contract, for the purposes of the provision of those services, with another undertaking — Taking on, by that latter undertaking, of the majority, in terms of their number and skills, of the staff of the first undertaking — Included — Condition — Transfer of an economic entity between the two undertakings concerned (Council Directive 2001/23, Art. 1(1)) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Scope –Examination of the consistency of a provision of a collective agreement with a provision of national law — Not included (Art. 267 TFEU; Council Directive 2001/23, Art. 3(1)) 1. Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 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 that directive applies to a situation in which a contracting entity has terminated the contract for the provision of services relating to the security of buildings concluded with one undertaking and has, for the purposes of the provision of those services, concluded a new contract with another undertaking, which takes on, pursuant to a collective agreement, the majority, in terms of their number and skills, of the staff whom the first undertaking had assigned to the performance of those services, in so far as the operation is accompanied by the transfer of an economic entity between the two undertakings concerned. The Court has thus held that, inasmuch as, in certain labour-intensive sectors, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, such an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task. In those circumstances, the new employer takes over an organised body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 36 and the case-law cited). Thus, a business providing security in a museum, such as that at issue in the main proceedings, which does not require specific tangible assets, can be regarded as essentially a labour-intensive activity and, consequently, a group of workers engaged in a joint security activity on a permanent basis may, in the absence of other factors of production, constitute an economic entity. The identity of that entity must nonetheless be retained after the transfer in question (see, by analogy, judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 39). (see paras 34, 35, 39, operative part1) 2. See the text of the decision. (see paras 40, 44-46, operative part2)