COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 04.03.1997 
COM(97) 85 final 
MEMORANDUM FROM THE COMMISSION 
on acquired rights of workers in cases of transfers of undertakings 

MEMORANDUM FROM THE COMMISSION 
on acquired rights of workers in cases of transfers of undertakings 
GUIDELINES ON THE APPLICATION OF COUNCIL DIRECTIVE 
77/187/EEC OF 14 FEBRUARY 1977 BASED ON THE CASE LAW OF THE 
COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES 
INTRODUCTION 
1 SCOPE 
1.1 Which countries? 
1.2 Which undertakings? 
1.3 Which employees? 
1.4 Which operations? 
1.4.1 Fundamental concept 
1.4.2 Change of employer 
1.4.3 Successive transfers 
1.4.4 Transfer operations associated with insolvency proceedings 
2 CONSEQUENCES OF TRANSFER 
2.1 Transfer of rights and obligations to the transferee 
2.2 Transfer of undertaking and collective agreement applicable 
2.3 Transfer of undertaking and changes in working conditions 
2.4 Non-entitlement to waive the rights conferred by the Directive 
2.5 Non-application of the Directive to benefits outside statutory social security 
schemes 
2.6 Protection against dismissal 
2.7 Protection of the functions of the employees' representative 
3 INFORMATION AN» CONSULTATION 
4 CONCLUSION 
ANNEXES 
I - TWENTY QUESTIONS AND ANSWERS ON SAFEGUARDING YOUR RIGHTS 
II - JUDGMENTS OF THE EUROPEAN COURT OF JUSTICE AND THE EFTA COURT ON 
TRANSFERS OF UNDERTAKINGS 
III -CASES PENDING BEFORE THE EUROPEAN COURT OF JUSTICE AND THE EFTA 
COURT CONCERNING TRANSFERS OF UNDERTAKINGS 
IV - NATIONAL PROVISIONS TRANSPOSING DIRECTIVE 77/187/EEC OF 14 FEBRUARY 1977 
A 
GUIDELINES ON THE APPLICATION OF COUNCIL DIRECTIVE 
77/187/EEC OF 14 FEBRUARY 1977 
INTRODUCTION 
According to the preamble, the aim of Council Directive 77/187/EEC of 14 February 
1977 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 
businesses1 (subsequently referred to as the "Directive" or "Transfers Directive"), is "to 
provide for the protection of employees in the event of a change of employer, in 
particular to ensure that their rights are safeguarded". To this end, the Directive 
states that the transferor's rights and obligations arising from a contract of employment 
or from an employment relationship are, by reason of such transfer, transferred to the 
transferee. ït also provides for the protection of the workers concerned against dismissal 
by the transferor or the transferee, but does not stand in the way of "dismissals that 
may take place for economic, technical or organizational reasons entailing changes 
in the workforce". Furthermore, in accordance with Article 6 of the Directive, the 
transferor and transferee are required to inform and consult the representatives of the 
employees affected by a transfer. The essential objective of the Directive is thus to ensure 
that the restructuring of undertakings within the European Community does not have 
adverse consequences for the employees of the undertaking concerned. 
Generally speaking, as far as legislation is concerned, the effectiveness in social terms 
of the protection afforded by the Directive is beyond dispute. The Directive has proved 
to be an invaluable instrument for the protection of workers in the event of the 
reorganisation of an undertaking, by ensuring peaceful and consensual economic and 
technological restructuring and providing minimum standards for promoting fair 
competition in the context of such changes. 
The Commission, in paragraph 11.3.2 of the Medium-term Social Action Programme 
(1995-1997), decided to produce a memorandum on acquired rights of workers in cases 
of transfers of undertakings, with a view to increasing information and guidance on the 
application of Community law, taking into account the large number of cases which have 
come before the Court of Justice of the European Communities. 
OJ No L 61/27, 5.3.1977. 
O SUBJECT 
The Commission sees this Memorandum as a useful tool for a better understanding of 
Community law in a very complex area which is not always easy to interpret. The main 
purpose of the Memorandum is make it easier for the public at large to understand 
Directive 77/187/EEC in the light of the criteria established by the European 
Court of Justice. Hence the objective is to tell European citizens how Council 
Directive 77/187/EEC has been construed by the European Court of Justice. It satisfies 
the requirement that Community rules should be transparent by facilitating correct 
application of European law and serving as a guide for representatives of employees and 
employers on their rights and obligations in the area of transfers of undertakings. 
SCOPE 
1.1 Which countries? 
The Directive applies "where and insofar as the undertaking, business or 
part of the business to be transferred is situated within the territorial scope 
of the Treaty" (Article 1.2) or a member country of the European 
Economic Area (Norway, Iceland, Liechtenstein). 
1.2 Which undertakings? 
The Directive applies to the transfer of any type of undertaking, business 
or part of a business, whether public or private, to another employer. 
The fact that an undertaking is engaged in non-profit-making activities is 
not sufficient to remove the undertaking from the scope of the Directive2. 
Only transfers involving sea-going vessels are specifically excluded by the 
Directive. 
1.3 Which employees? 
The persons the Directive aims to protect are persons with a contract of 
employment or persons in an employment relationship as defined by the 
employment law of the Member States at the time of the transfer. 
The Court feels that it is for the national courts to establish to what extent 
the persons concerned are to be regarded as employees and that, 
consequently, whether or not an employment contract or employment 
CJEC, 8 June 1994, Commission v UK, paragraph 45, ECR 1994, 6-2435. 
3 
relationship exists on the date of transfer must be established on the basis 
of the provisions of national law3. 
The Directive does not apply to the transfer of rights and obligations in 
respect of persons who were employed by the transferor on the date of 
transfer but, of their own free will, do not continue to occupy an 
employee's post with the transferee4. 
1.4 Which operations? ~~ ' 
1.4.1 Fundamental concept 
First of all, it should be noted that the Court of Justice of the European 
Communities has ruled that the Directive applies to all transfers resulting 
from a contract, an administrative or legislative act, or a court decision5. 
The Court has also held that the essential criterion for the recognition of 
a transfer is whether the transferee has received an existing undertaking so 
as to be able to continue its activities or, at least, activities of the same 
type. It follows that the decisive criterion for establishing whether there is 
a transfer for the purposes of the Directive is whether the economic unit 
retains its identity6. The assessments necessary in order to establish 
whether or not there is a transfer in the sense indicated are a matter for the 
national courts, in view of the specific interpretation factors involved: 
- type of undertaking or business, 
- whether or not tangible assets such as buildings and movable 
property are transferred, 
the value of intangible assets at the time of transfer, 
- whether or not the majority of employees are taken over by the 
new employer, 
- whether or not the customers are transferred, 
- the degree of similarity between the activities carried on before and 
after the transfer, 
- the period, if any, for which those activities were suspended. 
The Court has held that these circumstances are merely single factors in 
the overall assessment which must be made and cannot therefore be 
considered in isolation7. In its opinion, the case law referred to above 
assumes that the transfer relates to a solidly organised economic unit, 
3 
4 
5 CJEC, 11 July 1995, Case 105/84, A/S Danmols Inventar, ECR 1985, 2639 and 2654. 
CJEC, 7 February 1985, Case 19/83, Wendclboe, ECR 457. 
CJEC. 7 February 1985, Case 135/83, Abels, ECR 469. 
CJEC. 14 April 1994, Case C-392/92, Schmidt. 
7 CJEC, 18 March 1986, Case 24/85, Spijkcrs. 
whose activities are not limited to a specific task. For a transfer of an 
undertaking to be covered by the Directive, it should involve the transfer 
of an organised set of assets by means of which the activities or certain 
activities of the transferor undertaking can be carried on in a solid 
manner8. 
1.4.2 Change of employer 
The Court has ruled that the Directive applies to all situations in which 
there is a change in the legal or natural person responsible for carrying on 
the business9. As soon as the economic unit continues its activity, the mere 
fact of the change in the natural or legal person who is responsible for 
carrying on the business is sufficient to make the Directive applicable, 
regardless of whether or not ownership of the undertaking is transferred10. 
The transfer of ownership of most of the shares in a company or a change 
in the majority shareholder does not constitute a transfer of the 
undertaking, as the employer's legal personality remains the same. 
1.4.3 Successive transfers 
- The owner of a leased undertaking takes over its operation 
following a breach of the lease by the lessee: 
The Directive is applicable, its purpose being to ensure, as far as possible, 
that the rights of employees are safeguarded in the event of a change of 
employer by enabling them to remain in employment with the new 
employer on the terms and conditions agreed with the transferor11. 
At the end of a non-transferable lease, the owner of the 
undertaking transfers the undertaking to a new lessee who carries 
on the business without interruption, with the same staff as were 
dismissed on expiry of the first lease: 
The Directive is applicable where, on expiry of a non-transferable lease, 
the lessee ceases to be the employer and a third party becomes the 
employer under a new lease concluded with the owner. The fact that the 
transfer is affected in two stages does not prevent the Directive from 
applying, provided that the economic unit in question retains its identity. 
This is so in particular when the business is carried on without interruption 
9 
10 
11 CJEC, 19 September 1995, Case C-48/94, Rygaard. 
CJEC, 15 June 1988, Case 101/87, Boric International. 
CJEC, 10 February, Case 324/86, Daddy's Dance Hall. 
CJEC, 17 December 1987, Case 287/86, Ny Molle Kro. 
by the new lessee, with the same staff as were employed in the business 
before the transfer12. 
1.4.4 Transfer operations associated with insolvency proceedings 
According to the Court of Justice the Directive does not impose on the 
Member States the obligation to extend the rules laid down therein to 
transfers taking place in the context of insolvency proceedings instituted 
with a view to the liquidation of the assets of the transferor, without 
prejudice to the national legislator's right to decide otherwise13. 
The Court has also ruled that the Directive does not apply to transfers of 
undertakings made as part of a creditor's arrangement procedure .of the 
kind provided for in the Italian legislation on compulsory administrative 
liquidation but that it does apply when, in accordance with a body of 
legislation such as that governing special administration for large 
undertakings in critical difficulties, it has been decided that the 
undertaking is to continue trading for as long as that decision remains in 
force14. 
By contrast, the Directive does apply to the transfer of an undertaking, 
business or part of a business to another employer in the context of 
proceedings of the type "surséance van betaling" (suspension of payments) 
under Netherlands law, as such proceedings may allow the continuation of 
business. 
The fact that the transfer of an undertaking, business or part of a business 
takes place after the suspension of payments by the transferor is not in 
itself sufficient to exclude such transfers from the scope of the Directive15. 
Furthermore, the Directive applies to undertakings in which a state of 
crisis has been recognised, as the procedure leading to identification of this 
state tends to favour the maintaining of the undertaking's activity with a 
view to a subsequent takeover16. 
12 CJEC, 10 February 1988, Case 324/86, Daddy's Dance Hall. 
13 CJEC, 7 Febniaiy 1985, Case 135/83, Abels; CJEC, 7 Febniaiy 1985, Case 179/83 FNC; CJEC, 
7 Febniaiy 1985, Case 186/83, Botzen; CJEC, 25 July 1991, Case 362/89, dTJrso. 
14 CJEC, 25 July 1991, Case C-362/89, d'Urso. 
15 CJEC, 11 July 1985, Case 105/84, Mikkelson. 
16 CJEC, 7 December 1985, Case 472/93, Spano. 
CONSEQUENCES OF TRANSFER 
2.1 Transfer of rights and obligations to the transferee 
In accordance with Article 3.1 of the Directive, the transferor's rights and 
obligations arising from a contract of employment or from an employment 
relationship existing on the date of a transfer are, by reason of such 
transfer, transferred to the transferee. However, Member States may 
provide that after the date of transfer the transferor continues to be liable, 
side by side with the transferee, in respect of obligations arising from a 
contract of employment or an employment relationship. 
Thus, the transferee is bound by all the transferor's obligations resulting 
from an employment contract or an employment relationship, including 
those which arose before the date of transfer. In the Court's view, the 
Directive refers unreservedly to the transferor's rights and obligations 
arising from a contract of employment or from an employment relationship 
existing on the date of transfer. It is the transferee who assumes liability 
for bearing the burdens resulting from employees' rights existing at the 
time of transfer17. The objective of the Directive is to safeguard the rights 
of employees in the event of a change of employer by making it possible 
for them to continue to work for the transferee under the same conditions 
as those agreed with the transferor. Its purpose is not, however, to ensure 
that the contract with the transferor is continued where an employee does 
not wish to remain in the transferee's employ18. 
2.2 Transfer of undertaking and collective agreement applicable 
Article 3.2 of the Directive requires the transferee to continue to observe 
the terms and conditions agreed in any collective agreement on the same 
terms applicable to the transferor, until the date of termination or expiry 
of the collective agreement or the entry into force or application of another 
collective agreement. 
In the Court's view, Article 3.2 of the Directive must be interpreted as 
obliging the transferee to continue to observe the terms and conditions 
agreed in any collective agreement in respect of workers who were already 
employed by the undertaking at the time of transfer, thus excluding those 
who were recruited subsequent to that date19. 
The transferee has to continue to observe the terms and conditions agreed 
in any collective agreement on the same terms, until the date of 
17 CJEC, 7 February 1985, Case 135/83, Abels. 
18 CJEC, 5 May 1988, Cases 144/87 and 154/87, Berg and Busschers. 
19 CJEC, 17 December 1987, Case 287/86, Ny Molle Kro. 
termination or expiry of the collective agreement or the entry nto force or 
application of another agreement. In accordance with Article 3.2 of the 
Directive, Member States may limit this period, provided it is not less than 
one year20. 
2.3 Transfer of undertaking and changes in working conditions 
If the contract of employment or the employment relationship is terminated 
because the transfer within the meaning of the Directive involves a 
substantial change in working conditions to the detriment of the employee, 
the employer is regarded as having been responsible for termination of the 
employment contract or employment relationship (Article 4.2). 
Employees' remuneration rights arising from their employment contract or 
employment relationship may not be changed even if the overall amount 
of their wages remains unchanged. However, in so far as national law 
makes it possible to amend an employment relationship in a way which is 
disadvantageous to employees, such changes are not ruled out merely 
because the undertaking has in the meantime been transferred. Thus, the 
rights and obligations may be changed vis-à-vis the transferee subject to 
the same restrictions as could have been applied to the transferor, 
assuming that the transfer in itself is not the reason for this change21. 
2.4 Non-entitlement to waive the rights conferred by the Directive 
The Court of Justice has held that the protection conferred by the 
mandatory provisions of the Directive is a matter of public policy. It has 
ruled very clearly that an employee cannot waive the rights conferred upon 
him by the Directive and that these rights cannot be restricted, even with 
his consent and even if the disadvantages resulting from his waiver are 
offset by such benefits that, taking the matter as a whole, he is not placed 
in a worse position22. 
As the Court has specified, the Directive's rules apply to all, including the 
employees' representatives, who may not agree different arrangements in 
an agreement with the transferor or the transferee. 
According to the Court, it is not permissible to derogate from the rules in 
a manner unfavourable for the employees and hence the implementation 
of the rights conferred on employees may not be made subject to the 
consent of either the transferor or the transferee nor the consent of the 
employees' representatives or the employees themselves, with the sole 
20 CJEC, 11 December 1992, Case 209/91, Rask and Christensen. 
21 CJEC, 11 December 1992, Case 209/91, Rask and Christensen. 
22 CJEC, 10 Febniaiy 1988, Case 324/86, Daddy's Dance Hall. 
8 
reservation, as regards the workers themselves, that, following a decision 
freely taken by them, they are at liberty, after the transfer, not to continue 
the employment relationship with the new employer23. In this event it is 
for the Member States to determine what the fate of the employment 
contract or employment relationship should be. Notably, they may provide 
in such circumstances that the contract must be regarded as terminated 
either by the employee or by the employer. They may also provide that the 
contract be maintained with the transferor24. 
2.5 Non-application of the Directive to benefits outside statutory social 
security schemes 
The transfer of rights and obligations arising from a contract of 
employment or an employment relationship does not cover employees' 
rights to old-age, invalidity or survivor's benefits under supplementary 
company or inter-company pension schemes outside the statutory social 
security schemes in Member States (Article 3.3, first paragraph). 
Thus there is no transfer of the transferor's obligations based on non­
statutory schemes. Nevertheless, in order to avoid the adverse 
consequences for employees which could result from this exclusion, 
Member States must adopt the measures necessary to protect the interests 
of employees and persons no longer employed in the transferor's business 
at the time of transfer (Article 3.3, second paragraph). 
2.6 Protection against dismissal 
The transfer of an undertaking, business or part of a business does not in 
itself constitute grounds for dismissal by the transferor or the 
transferee (Article 4.1), but this provision does not stand in the way 
of dismissals that may take place for economic, technical or 
organisational reasons entailing changes in the workforce. 
Thus the Directive is limited to prohibiting dismissals where the only 
reason is the transfer. 
The Court has held that the protection afforded by the Directive against 
dismissal applies to any situation in which employees affected by a 
transfer enjoy some, albeit limited, protection against dismissal under 
national law, with the result that such protection may not be taken away 
from them or curtailed solely because of the transfer25. 
23 CJEC 25 July 1991, Case 362/89, d'Urso. 
24 CJEC 16 December 1992, Case 132/91, Katsikas, ECR 92, I 6577. 
25 CJEC, 15 April 1986, Case 237/84, Commission v Belgium. 
However, in the case of dismissals the Directive's scope may be curtailed 
by the right, recognised in the Member States, of withdrawing protection 
from "certain specific categories of employees who are not covered by the 
laws or practice of the Member States in respect of protection against 
dismissal"26. 
2.7 Protection of the functions of the employees' representative 
Article 5 of the Directive aims to ensure continuity of the function of 
representation and protection of the persons concerned. As regards 
continuity of the function of representation (Article 5(1)), it should be 
borne in mind that if the business transferred preserves its autonomy, i.e. 
continues to exist as a separate operating unit rather than being absorbed 
by a more complex structure, the status and function of the representatives 
or representation of the employees affected by the transfer, as laid down 
by the national law of the Member States, must be preserved. However, 
this does not apply, if in accordance with national legislation the 
conditions necessary for the re-appointment of the employees' 
representatives are fulfilled. 
The representatives of the employees affected by a transfer whose term of 
office expires as a result of the transfer "continue to enjoy the protection 
provided by the laws, regulations, administrative provisions or practice of 
the Member States" (Article 5.2). 
INFORMATION AND CONSULTATION 
The transferor and transferee are required to inform the representatives of their 
respective employees affected by a transfer of the following (Article 6.1): 
- the reasons for the transfer, 
the legal, economic and social implications of the transfer for the 
employees, 
- measures envisaged in relation to the employees. 
This information must be provided in good time before the transfer is carried out, 
and in any event before the transferee's employees are directly affected by the 
transfer as regards their conditions of work and employment. 
Whereas the obligation to provide information is general, the consultation 
obligation is limited. This obligation exists when the transferor or transferee 
envisages measures in relation to his employees (Article 6.2), e.g. a reduction in 
Article 4(1), semence 2, of Council Dircclivc 77/187/EEC of 14 Fcbniary 1977. 
10 
the size of the workforce. Consultation takes place "with a view to seeking 
agreement". The Court of Justice has interpreted a similar provision in Directive 
75/129/EEC (collective redundancies) as not creating an obligation with regard to 
results27. This consultation must be made "in good time" with the employees' 
representatives. 
According to the Court, the Directive was not intended to bring about global 
harmonisation of the national systems of employee representation in the firm. 
However, the limited nature of such harmonisation should not frustrate the 
purpose of Article 6 of the Directive. Notably, it should 'not absolve Member 
States from their obligation to take all the necessary measures to ensure that the 
employees' representatives may be designated with a view to the information and 
consultation provided for in the Article in question. This being the case the 
Directive leaves it to the Member States to determine the arrangements for 
designating the employees' representatives28. 
Member States may limit the obligations referred to above to undertakings or 
businesses which, in respect of the number of employees, fulfil the conditions for 
the election or designation of a collégial body representing the employees (Article 
6.4). 
They may also provide that, where there are no representatives of the employees 
in an undertaking or business, the employees concerned must be informed in 
advance when a transfer is about to take place (Article 6.5). 
It must be emphasised that national law must provide for effective, proportionate 
and dissuasive sanctions in the event of the employer's failure to inform and 
consult the employee representatives29. 
CONCLUSION 
The Transfers Directive has formed the basis for a large number of cases brought 
before the Court of Justice of the European Communities. A total of 25 judgments 
have been handed down, most of them in connection with references for 
preliminary rulings (see Annex II). At the moment there are several cases pending 
before the Court (see Annex III). 
In its judgments, the Court has in particular clarified the concept of transfer, ruled 
that a contractual link is not necessary between the transferor and transferee for 
the Directive to apply, excluded from the scope of the Directive liquidation 
proceedings but not suspension of payment proceedings, clarified the meaning of 
27 
28 
2») CJEC 12 February 1985, Case 284/83, ECR, p. 553. 
CJEC, 8 June 1984, Case 382/92, Commission v UK. 
CJKC, 8 June 1984, Case 382/92, Commission v UK. 
the term "employee", and ruled that employees and their representatives cannot 
waive the rights conferred on them by the Directive as implemented by national 
legislation. 
12 
ANNEX I 
TWENTY QUESTIONS AND ANSWERS ON SAFEGUARDING YOUR 
RIGHTS 
A GUIDE FOR EMPLOYEES' AND EMPLOYERS1 
REPRESENTATIVES CONCERNING THEIR RIGHTS AND 
OBLIGATIONS IN THE FIELD OF TRANSFERS OF UNDERTAKINGS 
1) Does the Directive also apply to the transfer of an undertaking situated in the 
territory of a country which is not a Member State of the European Union? 
- The Directive applies to the extent that the undertaking to be transferred is 
within the territorial scope of the Treaty on European Union or a Member State 
of the European Economic Area (Norway, Iceland, Liechtenstein). 
1) For the Directive to be applicable, must the undertaking exercise its activity 
with a view to making a profit? 
- The fact that an undertaking is engaged in non-profit-making activities is not 
sufficient to remove the undertaking from the scope of the Directive. 
3) Which operations are excluded from the scope of the Directive? 
- The Directive specifically excludes operations involving sea-going vessels. 
However, France, Germany, Italy, Portugal and Spain have applied the principles 
of the Directive to sea-going vessels. 
4) Who is covered by the Directive? 
- Anyone with a contract of employment or in an employment relationship on the 
date of a transfer. 
Public service employees are not covered by the directive insofar as they are not 
subject to the labour law in force in the Member States. 
5) Who decides whether a person has a contract of employment or is an 
employment relationship on the date of a transfer 
- This question is subject to the jurisdiction of each Member State and the 
provisions of national law. 
6) Does the Directive apply to employees who have left the undertaking by the 
date of transfer? 
- No, the provisions of the directive cover only employees in the service of the 
undertaking on the date of transfer. 
13 
7) After a transfer, who is responsible for existing obligations, the transferor or 
the transferee? 
- The transferee is liable for all the transferor's obligations, including those arising 
prior to the date of transfer. 
Except where national legislation provides for joint liability of the transferor and 
transferee after the transfer, the consequence of the transfer is to release the 
transferor from his obligations. 
Joint responsibility has been adopted by France, Germany, Greece, Italy, the 
Netherlands, Portugal and Spain. 
8) Where an undertaking is transferred, which collective agreement applies, the 
transferor's or the transferee's? 
- The Directive requires the transferee to continue to observe the terms and 
conditions of any collective agreement on the same terms applicable to the 
transferor under that agreement, until the date of termination or expiry of the 
collective agreement or the entry into force of another collective agreement. 
However, Member States may limit this period, provided it is not less than one 
year. 
9) May conditions of employment be changed following the transfer of an 
undertaking? 
- The rights of employees arising from a contract of employment or employment 
relationship may not be changed because of a transfer. 
However, rights and obligations may be changed vis-à-vis the transferee subject 
to the same restrictions as applied to the transferor, provided that the transfer in 
itself is not the reason for the change. 
10) May employees waive the rights accorded by the Directive? 
- No. Employees may not waive the rights conferred on them by the Directive, 
and those rights may not be restricted even with their consent and even if the 
disadvantages resulting from the waiver are offset by similar benefits. 
11) Does the protection given by the Directive apply to benefits under non­
statutory social security schemes? 
- No. The transfer of rights and obligations arising from an employment contract 
or employment relationship does not cover employees' rights to old-age, invalidity 
or survivor's benefits under supplementary company or inter-company pension 
schemes outside the statutory social security schemes in Member States. However, 
Member States must adopt the measures necessary to protect the rights acquired 
14 
or being acquired by employees and persons no longer employed in the business 
at the time of transfer. 
12) May dismissals for economic, technical or organisational reasons take place 
on the transfer of an undertaking? 
- Yes. The Directive is limited to prohibiting dismissals where the only reason is 
the transfer. 
13) What are the rights of the representatives of employees affected by a 
transfer whose term of office expires as a result of the transfer? 
- They continue to enjoy the protection provided by the laws, regulations, 
administrative provisions or practice of the Member States. 
14) What are the transferor's and transferee's obligations as regards providing 
information for the representatives of their respective workers? 
- They must provide information on the following points: 
- the reasons for the transfer, 
- the legal, economic and social implications of the transfer for the employees, 
- measures envisaged in relation to the employees. 
15) Is it compulsory to consult the employees' representatives in the event of the 
transfer of an undertaking? 
- Such an obligation exists if the transferor or transferee envisages measures in 
relation to their respective employees, e.g. a reduction in the size of the 
workforce. 
16) At which point in time must they be informed and consulted? 
- The employees' representatives must be informed and consulted "in good time" 
and in any event before the transferee's employees are directly affected by the 
transfer as regards their conditions of work and employment. 
17) Are there any derogations from the principles of informing and consulting 
employees ' representatives? 
- Yes. Member States may limit these obligations to undertakings or businesses 
which, in respect of the number of employees, fulfil the conditions for the election 
or designation of a collégial body representing the employees. 
18) Does the Directive require Member States to provide for systems of 
employee representation even if there is no such representation in the 
undertaking under national law? 
15 
Yes. Member States must adopt all necessary measures for designating the 
employees' representatives who have to be informed and consulted pursuant to 
Article 6 of the Directive. It is for the Member States to determine the 
arrangements for designating the employees' representatives. 
19) Are the obligations to inform and consult employees' representatives 
binding? 
- National law must provide for effective sanctions in the event of the employer's 
failure to inform and consult employees' representatives. 
20) Is the protection accorded by the Directive the upper limit? 
- No. The Directive does not affect the right of Member States to apply or 
introduce laws, regulations or administrative provisions which are more favourable 
to employees. 
16 
ANNEX II 
JUDGMENTS OF THE COURT OF JUSTICE OF THE EUROPEAN 
COMMUNITIES AND THE EFTA COURT RELATING TO TRANSFERS 
OF UNDERTAKINGS - COUNCIL DIRECTIVE 77/187/EEC OF 14 
FEBRUARY 1977 
Wendelboe, Case 19/83, 7 February 1985, ECR 1985, p. 457 
Abels, Case 135/83, 7 February 1985, ECR 1985, p. 479 
Industriebond FNV, Case 179/83 7 February 1985, ECR 1985, pp. 511 and 517 
Botzen, Case 186/83, 7 February 1985, ECR 1985, pp. 520 and 523 
A7S Danmols Inventar, Case 105/84 11 July 1985, ECR 1985, pp. 2639 and 2654 
Republic of Italy, Case 235/84 10 July 1986, ECR 1986, pp. 2291 and 2304 
Kingdom of Belgium, Case 237/84, 15 April 1986, ECR 1986, pp. 1247 and 1257 
Spijkers, Case 24/85, 18 March 1986, ECR 1986, pp. 1119 and 1130 
Ny M0lle Kro, Case 287/86, 17 December 1987, ECR 1987, p. 5465 
Daddy's Dance Hall, Case 324/86, 10 February 1988, ECR 1988, p. 739 
Bork, Case 101/87, 15 June 1988, ECR 1988, p. 3057 
Berg and Busschers, Cases 144 and 145/87, 5 May 1988, ECR 1988, p. 2559 
D'Urso, Case 362/89, 25 July 1991, CJEC,91, 1-4105 
Redmond Stichting, Case 29/91, 19 May 1992, CJEC 92, 1-3189 
Anne Watsen, Case 209/91, 12 November 1992, CJEC 92, 1-5755 
Schmidt, Case 392/92, 14 April 1994, CJEC 94, 1-1311. 
Commission v United Kingdom, Case 382/92, 8 June 1994, CJEC 94, 1-2435 
Rygaard, Case 48/94, 19 September 1995. 
Luigi Spano, Case 472/93, 7 December 1995. 
Merckx et Neuhuys, Cases 171/94 and 172/94, 7 March 1996. 
Eilert Eidesund v Stavanger Catering A.s., Case E - 2/95. Judgment of the EFTA 
Court of 25 September 1996. 
Torgier Langeland v Norske Falnicorn A.S., Case E-3/95. 
Judgment of the EFTA Court of 25 September 1996. 
Annette Henke v Gemeinde Schierke and Verwaltungsgemeinschat "Brocken".-
Case C-298/94, 15.10.96. 
Claude Rotsart de Hertains v. S.A. J. Benoit in receivership and I.G.C. Housing 
Service Case C - 305/94, 14.11.96. 
17 
ANNEX HI 
CASES PENDING BEFORE THE COURT OF JUSTICE OF THE 
EUROPEAN COMMUNITIES AND THE EFTA COURT RELATING TO 
COUNCIL DIRECTIVE 77/187/EEC OF 14 FEBRUARY 1977 
- Case C-319/94, Jules Dethier Equipment v Jules Dassy, Sprl Sovam in 
receivership. 
- Case C-13/95, Ayse Siizen v Zehnacker Gebandereinigung Gmbh. 
- Case C-229/95, Simone Moll v Berhane Mesghena. 
- Case C-336/95, Pedro Burdalo v Fondo de Garantia Salarial. 
- Case E-2/95, Eilert Eidesund v Stavanger Catering A.S. 
- Case E-3/95, Torgeir Langeband v Norske Falnicorn A.S. 
- Case C-336/95 Pedro Burdalo v Fondo de Garantia Salarial. 
- Case E-2/96 J. Ulstein & P.Otto Raiseng v A. Meller. 
- Case E-3/96 Tor A.Ask v ABB AS and AKER AS. 
- Case C-121/96 Sultan Bulut v Deutsche Bundespost. 
- Case C-127/96 Prudencia Gomez Perez v Contrtas y Limpiensas S.L. and F. 
Hernandez Vidal S.A. 
- Case C-173/96 Francisco Hidalgo v Asociaciôn de Servicios ASER and Sociedad 
Cooperativa Minerva. 
- Case C-204/96 E.f. Liebelt GmbH v Marianne Seidel. 
- Case C-229/96 F. Santner v Hoechts A.g. 
- Case C-247/96 H. Ziemann v Fa Ziemann Sicherheit GmbH and Fa H. Bohn 
Sicherheitsdienst. 
- Case C-277/96 H. J.Dick v EB - Schulungs GmbH i.L. 
ANNEX IV 
NATIONAL PROVISIONS TRANSPOSING DIRECTIVE 77/187/EEC OF 
14 FEBRUARY 1977 
National provisions communicated by the Member States with reference to 
Council Directive 77/187/EEC of 14 February 1977 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: 
Austria Arbeitsvertragsrechts-Anpassungsgesetz-Avrag,BGBlNr459/1993 
Belgium : Arrêté Royal du 19/04/78, Moniteur Belge du 25/08/78 
Arrêté Royal du 31/10/78, Moniteur Belge du 31/10/78 
Convention collective n*32 bis du 7 juin 1985 modifiée par la 
Convention n*32ter du 2 décembre 1986. 
Denmark : Lov af 21/03/79, Lovtidende à NR.11 AF 21/03/79 p. 326 
Finland : Act on contracts of Employment 320/70 as amended by Act 235/93 
Act on Co-determination in Companies 725/78 as amended by Act 
236/93 
France : Code du Travail (Art. 122-12, 122-12.1, 132-8, 412-16, 412-18) 
Circulaire n*27/75 du 02/07/75 
Arrêté Ministériel du 27/03/62 
Accord Convention Collective National Retraite Prévoyance Cadres 
du 14/03/47 
Loi n"82-915; Journal Officiel du 29/10/82 
Loi n'83-528, Journal Officiel du 29/06/83 
Germany: Gesetz vom 25/08/69, Bundesgesetzblatt (Teile I, II, III) I, Nr. 83 
vom 27/08/69 p. 1317 
Gesetz vom 15/01/72, Bundesgesetzblatt (Teile I, II, III) I Nr. 48 
vom 20/08/80 p. 1308 
Grand Duchy of Luxembourg : Règlement Grand-Ducal du 19/06/70, Memorial 
A n'35 du 30/06/70. 
Loi du 24/06/70, Memorial A n*35 du 30/06/70 
Règlement Grand Ducal du 27/06/70, Memorial A n*35 du 
30/06/70. 
Loi du 12/11/71. Loi du 18/03/81, Memorial A n° 16 du 
26/03/81. 
Greece : Presidential Decree No 572 of 01/12/88, FEK AN. 269 of 06/12/88 
p. 4099 
19 
Ireland : EC. Safeguarding of Employees on Transfer of Undertaking, 
Statutory Instruments n*306 of 10/10/1980 
Italy : Code Civile (Art.2112) 
Legge N-675 del 12/08/77, Gazetta Ufficiale 
le n. 243 del 07/09/77 p. 6257 
Legge N.215 del 26/05/78, Gazetta Ufficiale N. 145 del 07/05/78 
P.38.03 
Legge N.428 del 29 dicembre 1990, Gazetta Ufficiale n*10 del 
12/01/1991 
Netherlands : Wet van 15/07/79, Staatsblad nr 1979/448 van 31/08/79. 
Ministeriele Verordening van 30/01/81, Staatsblad nr. 1981/18 van 
15/02/81. 
Wet van 15/05/81, Staatsblad nr. 1981/400 van 07/07/81. 
Wet van 22/05/81, Staatsblad Nr 1981/416 van 14/07/81. 
Portugal : Decreto - Lei N 49/408, 24/11/69 
Decreto-Lei N'519C/79, 29/12/79 
Lei n'46/79, 12/09/79 
Lei n'68/79, 09/10/79 
Spain : Ley N. 8/80 de 10/03/80, (Boletin Oficial del Estado de 14/03/80). 
Decreto N. 2065/74 de 30/05/74, (Boletin Oficial del Estado de 
30/07/80). 
Sweden : Act. 1982/80 on Security of Employment, section 4,7 and 25-27 
Act. 1976/58 on Co-Determination at Work, section 6, 10-22 and 28 
Annual Leave Act. 1977/480, section 31 
Act 1974/358 on the Position of a Trade-Union Representative at 
the Work Place 
Act 1967/531 on Safeguarding Pension Commitments. 
United Kingdom : Regulations 1981, Statutory Instruments n" 1794 of 14/12/81. 
Trade Union Reform and Employment Rights Act, 1993 
Terms and conditions of employment. Regulations, 1995 - N# 
2587. 
20 

ISSN 0254-1475 
COM(97) 85 final 
DOCUMENTS 
EN 04 05 06 08 
Catalogue number : CB-CO-97-077-EN-C 
ISBN 92-78-16351-1 
Office for Official Publications of the European Communities 
L-2985 Luxembourg 
$A