Opinion of the Advocate General — ECLI:EU:C:2017:943
Date: 2017-12-06
Language of the case: Spanish
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Spain

Summary — Judgment of the Court (Fifth Chamber), 7 August 2018 1. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees’ rights — Directive 2001/23 — Scope – Transfer —Definition — Criteria (Council Directive 2001/23, Art. 1(1)) 2. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees’ rights — Directive 2001/23 — Scope – Service contract for the management of a municipal School of Music – Cessation of the activity of the first contractor before the end of the current school year and designation of a new contractor at the beginning of the following school year – Provision to the new contractor of all material resources, belonging to the transferor, previously provided to the preceding contractor — Included (Council Directive 2001/23, Art. 1(1)) 3. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees’ rights — Directive 2001/23 – Dismissals for economic, technical or organisational reasons entailing changes in the workforce — Concept – Service contract for the management of a municipal School of Music – Dismissal following the cessation of the activity of the first contractor before the end of the current school year, the new contractor taking over the activity at the beginning of the following school year — Included — Conditions – Verification by the referring court (Council Directive 2001/23, Art. 4(1)) 1. See the text of the decision. (see paras 29-33) 2. Article 1(1) of Council Directive 2001/23/EC 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 a situation, such as that at issue in the main proceedings, where the successful tenderer for a service contract for the management of a municipal school of music, to which the municipal administration had supplied all the means necessary for the exercise of that activity, ceases that activity two months before the end of the current academic year, proceeding to dismiss the staff and returning those material resources to that municipal administration, which conducts a new tendering procedure solely for the following academic year and provides the new contractor with the same material resources, is capable of coming within the scope of that directive. It should be noted, first of all, that in a situation such as that at issue in the main proceedings, the material resources, such as musical instruments, facilities and premises, appear to be essential to the conduct of the economic activity in question, relating to the management of a School of Music. In the present case, it is common ground that the municipal administration of Valladolid has made available to the new contractor all the material resources which it had assigned to the former contractor. It follows that an interpretation of Article 1(1)(b) of Directive 2001/23 which excludes 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 transferor (the local authority of Valladolid) would deprive that directive of part of its effectiveness (see judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 40). Furthermore, it is clear from the case-law of the Court that a temporary suspension, of only a few months, of the undertaking’s activities cannot preclude the possibility that the economic entity at issue in the main proceedings retained its identity and that there was therefore a transfer of undertaking within the meaning of that directive (see, to that effect, judgment of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 31). (see paras 35, 39, 41, 46, operative part 1) 3. Article 4(1) of Directive 2001/23 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, where the successful tenderer for a service contract for the management of a municipal school of music ceases that activity two months before the end of the current academic year, proceeding to dismiss the staff, the new contractor taking over the activity at the beginning of the next academic year, it appears that the dismissal of the employees was made for ‘economic, technical or organisational reasons entailing changes in the workforce’, within the meaning of that provision, provided that the circumstances which gave rise to the dismissal of all the employees and the delayed appointment of a new service provider are not a deliberate measure intended to deprive those employees of the rights conferred on them by Directive 2001/23, which it will be for the referring court to ascertain. (see para. 55, operative part 2)