Judgment — ECLI:EU:C:2017:780
Date: 2017-10-19
Language of the case: Portuguese
Court formation: Tenth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary — Judgment of the Court (Tenth Chamber), 19 October 2017 1. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees’ rights — Directive 2001/23 — Scope — Transfer — Concept — 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 — Transfer — Concept — Termination, by a contracting entity, of a contract for the provision of services concluded with one undertaking, followed by the conclusion of a new contract for the supply of those services with another undertaking — Refusal to take on the employees of the first undertaking, when the equipment essential to the performance of those services has been taken over by the second undertaking — Included — National provision generally excluding from the scope of the concept of a transfer the loss of a customer by an operator following the award of a service contract to another operator — Not permissible (Council Directive 2001/23, Art. 1(1)) 1. See the text of the decision. (see paras 23, 25-30) 2. Article 1(1)(a) 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 businesses must be interpreted as meaning that, where a contracting entity has terminated the contract concluded with one undertaking for the provision of security guard services at its facilities, then concluded a new contract for the supply of those services with another undertaking, which refuses to take on the employees of the first undertaking, that situation falls within the concept of a ‘transfer of an undertaking [or] business’, within the meaning of that provision, when the equipment essential to the performance of those services has been taken over by the second undertaking. Article 1(1) of Directive 2001/23 must be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, which provides that the loss of a customer by an operator following the award of a service contract to another operator does not fall within the concept of a ‘transfer of an undertaking [or] business’, within the meaning of Article 1(1). In that regard, the Court has already held that the mere loss of a service contract to a competitor cannot by itself indicate the existence of a transfer within the meaning of Directive 2001/23 (judgment of 11 March 1997, Süzen, C‑13/95, EU:C:1997:141, paragraph 16). However, a provision of national law that generally excludes the loss of a customer by an operator following the award of a service contract to another operator from the scope of that concept does not allow all the facts characterising the transaction in question to be taken into consideration. (see paras 34, 36, 38, operative part 1, 2)