OPINION OF ADVOCATE GENERAL

Trstenjak

delivered on 26 October 2010 ( )

Case C‑463/09

CLECE SA

(Reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha (Spain))

(Social policy – Directive 2001/23/EC – Article 1(1)(a) and (b) – Transfers of undertakings – Safeguarding of employees’ rights – Scope – Concept of ‘transfer’ – Existence of an ‘economic entity’ – Taking over of cleaning services in a public building by a municipality in its capacity as an authority)





I – Introduction

1. The Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice, Castilla-La Mancha, ‘the referring court’) has referred a question to the Court pursuant to Article 234 EC ( ) for a preliminary ruling on the interpretation 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. ( )

2. This reference for a preliminary ruling stems from a dispute between María Socorro Martin Valor (‘the applicant in the main proceedings’), a worker who had previously worked for the cleaning company CLECE SA (‘CLECE’), and the Ayuntamiento de Cobisa (Municipality of Cobisa) concerning rights arising from her previous employment relationship with CLECE. By her action she is challenging her dismissal, which she considers to be unlawful, relying inter alia on the rights granted to employees under Directive 2001/23 in the event of transfers of businesses.

3. By the question referred, the Court is essentially being asked to clarify whether Directive 2001/23 covers a situation in which a municipal authority which previously contracted a private undertaking to clean its premises terminates that contract in order to take over the cleaning services itself, and hires exclusively new staff for that purpose. From a legal point of view, this raises the question of the scope of that directive, in connection with which the Court will first have to consider whether the necessary condition for the transfer of a business – the maintenance of an economic entity – is satisfied even if neither assets nor any employees are taken on, but the ‘transfer’ as such consists solely in a continuation of functions.

II – Legislative context

A – Union law ( )

4. Directive 2001/23 codifies 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 undertakings or businesses, ( ) as amended by Council Directive 98/50/EC of 29 June 1998. ( )

5. According to the third recital in the preamble to Directive 2001/23,‘it is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded’.

6. The eighth recital in the preamble to that directive states:

‘Considerations of legal security and transparency required that the legal concept of transfer be clarified in the light of the case-law of the Court of Justice. Such clarification has not altered the scope of Directive 77/187/EEC as interpreted by the Court of Justice.’

7. Article 1(1) of the directive states:

‘(a) This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger.

(b) Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.

(c) This Directive shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain. An administrative reorganisation of public administrative authorities, or the transfer of administrative functions between public administrative authorities, is not a transfer within the meaning of this Directive.’

8. The first subparagraph of Article 3(1) of the directive reads:

‘The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.’

9. The first subparagraph of Article 4(1) of the directive states:

‘The transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.’

B – National law

1. Legislation

10. Paragraph 1 of Article 44 of the Ley del Estatuto de los Trabajadores of 24 March 1995 (‘the Worker’s Statute’), which transposes Directive 2001/23, provides:

‘The transfer of an undertaking, business or independent production unit of an undertaking shall not in itself terminate the employment relationship; the new employer shall take over the former employer’s rights and obligations with respect to the employment contract and social security, including all commitments in respect of pensions, in the conditions provided for by the relevant specific legislation and, generally, all obligations in relation to additional social protection which the transferor has undertaken.’

11. Article 44(2) provides that ‘for the purposes of this article, there shall be a transfer of undertaking where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary’; that latter definition corresponds with the definition laid down in Article 1(1)(b) of Directive 2001/23.

2. Collective Agreement

12. Article 14 of the Collective Agreement concerning workers employed in the cleaning of buildings and premises in Toledo, published in Boletín Oficial de la Provincia de Toledo No 269 of 22 November 2005, provides:

‘When an undertaking whose cleaning services have been supplied by a contractor takes over those services itself, it is not obliged to keep on the staff who provided the services on behalf of the contractor if it employs its own staff to carry out the cleaning. It must, however, do so if it wishes to employ new staff to carry out the cleaning.’

III – Facts, main proceedings and question referred for a preliminary ruling

13. The applicant in the main proceedings was employed by CLECE as a cleaner from 25 March 2004. She worked on the premises of the Ayuntamiento de Cobisa (Toledo) under a contract for the supply of cleaning services in schools and premises belonging to the council, entered into between the two defendants on 27 May 2003. The order for reference states that there is no evidence that any special equipment was required for the job.

14. Following an extension of the contract, the Ayuntamiento informed the co‑defendant CLECE on 9 November 2007 that it wished to terminate the contract for the provision of cleaning services with effect from 31 December 2007. On 2 January 2008 that company informed the applicant in the main proceedings that, as of 1 January 2008, she would be employed by the Ayuntamiento since that body had been awarded the contract for cleaning the premises of the Ayuntamiento. That body was to assume all the rights and obligations which had thus far been regulated under the employment relationship, as established in the applicable Collective Agreement concerning workers employed in the cleaning of buildings and premises in Toledo.

15. On 2 January 2008, the applicant in the main proceedings presented herself for work at the premises of the Ayuntamiento, where she was not permitted to carry out her work. CLECE did not offer her an alternative job. The order for reference also states that the co-defendant Ayuntamiento engaged five workers to clean its premises on 10 January 2008, via an employment agency created on 21 January 2007.

16. The action for unlawful dismissal brought by the applicant in the main proceedings against CLECE and the Ayuntamiento de Cobisa gave rise to the judgment of the Juzgado de lo Social No 2 de Toledo (Social Court No 2, Toledo), which found that the Ayuntamiento de Cobisa could not be sued, but upheld the action brought against the co-defendant CLECE, found that the dismissal was unlawful, and ordered CLECE either to reinstate the applicant in the main proceedings on the terms she enjoyed prior to her dismissal or to compensate her in the amount of EUR 6 507.10, along with payment in either case of earnings lost during the proceedings.

17. CLECE brought an appeal before the referring court against that judgment on 26 December 2008. In that appeal, CLECE essentially claims that the Ayuntamiento is subrogated in the employment relationship with the applicant in the main proceedings pursuant to Article 14 of the Collective Agreement concerning workers employed in the cleaning of buildings and premises in Toledo in conjunction with Article 44 of the Law on the statute of workers and with the case-law which it cites.

18. In its order, the referring court expresses doubts as to the applicability of Directive 2001/23 to the main proceedings. It therefore stayed the proceedings and referred the following question to the Court for a preliminary ruling:

Does a situation in which a municipal authority resumes or takes over the activity of cleaning its premises, which was previously carried out by a contractor, and for which new staff are hired, fall within the scope of Directive 2001/23, as defined in Article 1(1)(a) and (b) thereof?

IV – Procedure before the Court

19. The order for reference of 20 October 2009 was lodged at the Registry of the Court of Justice on 25 November 2009.

20. Written observations were submitted by the Government of the Kingdom of Spain and the Commission within the period laid down in Article 23 of the Statute of the Court of Justice.

21. As none of the parties applied for the oral procedure to be opened, the Opinion in this case was prepared after the general meeting of the Court on 31 August 2010.

V – Main arguments of the parties

22. The Spanish Government takes the view that a situation like that at issue in the main proceedings falls within the scope of Directive 2001/23 even though the continuation or taking over of cleaning work cannot, strictly speaking, be equated with the concept of a transfer within the meaning of commercial law.

23. In the main proceedings, the Ayuntamiento did not have the necessary staff to carry out the cleaning services in its premises and therefore had to hire new staff. In such a case, the Court’s case-law must apply, especially since there is no doubt that there was a transfer of functions from CLECE to the Ayuntamiento and the same purpose is pursued, namely the provision of cleaning services, that the Ayuntamiento has a stable and autonomous organisational structure, even though its purposes are broader than merely providing cleaning services and are ancillary to a municipal authority’s principal functions, and lastly the number of the transferor’s employees is limited to its own staff.

24. The Commission, on the other hand, takes the view that Directive 2001/23 does not apply to a situation where the Ayuntamiento, which originally contracted the cleaning of its premises to a private undertaking, terminates the contract and subsequently carries out the cleaning work itself, if it does not take on a major part, in terms of their number and skills, of the employees which the private undertaking had assigned to perform the contract.

25. The Court has stated on several occasions that a transfer can take place in the cleaning sector where the new employer not only continues the cleaning service, but takes on part of the staff of the subcontractor, provided that the staff thus taken on are a major part, in terms of their number and their skills, of the staff assigned by the subcontractor to the performance of the subcontract. ( )

26. The Commission states that it is not apparent from the order for reference whether the applicant in the main proceedings was the only cleaner used by CLECE in the premises of the Ayuntamiento. Because the Ayuntamiento engaged five employees to continue the activity which had previously been carried out by the subcontractor, it is possible that CLECE used a similar number of employees. In any case, it is clear from the order for reference that none of the former employees was re-engaged and that the Ayuntamiento instead hired five new employees to clean its premises via an employment agency. Against this background, no ‘economic entity’ was transferred, with the result that there was no ‘transfer’ within the meaning of Directive 2001/23.

VI – Legal assessment

A – Introductory remarks

27. Directive 77/187 – the predecessor to Directive 2001/23 – developed for the first time at supranational level a comprehensive protection scheme for safeguarding the rights of employees whose employment relationships are affected by a transfer of an undertaking, business or part of a business. The directive, which partially harmonises national labour laws, essentially provides that the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer must, by reason of such transfer, be transferred to the transferee. Its aim is therefore to ensure, as far as possible, that the employment relationship continues unchanged with the transferee, so that the employees affected by the transfer of the undertaking are not placed in a less favourable position solely as a result of the transfer. ( ) In addition to this protection of employees on grounds of social policy, Directive 77/187, which is based on Article 94 EC, also aims to guarantee the functioning of the common market since, in the view of the legislature, different levels of protection of employees in the event of transfers of undertakings or businesses within the Member States may constitute a barrier to trade.

28. Directive 77/187 has often been interpreted by the Court. Not least because of the large number of judgments delivered by the Court, the legislature revised it substantially by Directive 98/50 and adapted the text of the directive in accordance with that case-law. Then, for reasons of clarity, Directive 77/187 was codified by Directive 2001/23 without any substantive amendment. Specifically by reason of this constructive interaction between the Union legislature and the Court in developing labour law – within the scope of their respective constitutional powers – the previous case-law on the predecessor directive proves to be a valuable aid for those applying the law in ascertaining the spirit and purpose of the individual provisions of Directive 2001/23. This is true in particular of the provisions defining the personal scope of the directive, whose interpretation is at issue in the present preliminary ruling proceedings.

B – Analysis of the question

1. General remarks

29. The aim of the question referred for a preliminary ruling is to have the Court establish whether the situation in the main proceedings satisfies the criteria laid down in Article 1(1)(a) and (b) and thus falls within the scope of Directive 2001/23. On closer inspection, however, with its question the referring court is just seeking clarification whether a ‘transfer of a business’ within the meaning of the directive has taken place in the main proceedings. It must nevertheless be borne in mind that on the basis of the relationship of cooperation which characterises the preliminary ruling procedure, it is in principle solely for the national court to examine, in accordance with Community law and national implementing law, whether the conditions for a transfer are satisfied in an individual case. Accordingly, the Court has held in its case-law ( ) that it is for the national tribunal to take into consideration all the facts which characterise the transaction in question and to make an overall assessment of all individual factors.

30. It is for the Court in turn to give an interpretation which provides the national court with all the relevant criteria which allow it to make that assessment. As is shown by previous case-law, however, the Court may, with a view to giving the national court a relevant answer which leads to the resolution of the main proceedings, make extensive use of its power of interpretation, for example by giving an interpretation of those criteria in relation to the specific case and thus examining individual aspects of the case submitted to it. ( )

31. On the basis of these general remarks, I will now turn to the actual question asked in the order for reference regarding the applicability of Directive 2001/23 to a situation like that described in the question.

2. Applicability of Directive 2001/23

32. It is clear from the wording of Article 1(1) of Directive 2001/23 that its applicability is subject to three conditions: the transfer must result in a change of employer; it must concern an undertaking, a business or part of a business; and it must be the result of a contract. ( )

a) Change of employer as the result of a contract

i) Capacity of the contracting body as an authority

33. First of all, the Court’s case-law should be recalled according to which the transfer of an economic activity from a legal person governed by private law to a legal person governed by public law does in principle fall within the scope of Directive 77/187. ( ) As the Court recently confirmed in UGT‑FSP, ( ) the same conclusion is called for under Directive 2001/23.

34. It should be pointed out in this connection that the Court has declared Directive 77/187 also to be applicable where a municipality, i.e. a legal person governed by public law operating within the framework of specific rules of administrative law, takes over functions and those functions were previously carried out, in the interests of that municipality, by a non-profit-making association which was a legal person governed by private law, provided always that the transferred entity retains its identity. ( ) Consequently, the mere fact that the cleaning services which were previously provided by employees of CLECE to the Ayuntamiento – a public authority – were taken over by the Ayuntamiento does not militate against the applicability of Directive 2001/23. Furthermore, the specific circumstances described in Article 1(1)(c) of the directive are also not present in the main proceedings.

ii) Transfer on the basis of the termination of the contract for cleaning services

35. As regards the mode of a transfer within the meaning of the directive, it should be stated, first of all, that the Court gives a broad interpretation to the notion of ‘legal transfer’ in its case-law in order to fulfil the purpose of the directive, which is to protect employees in the event of a transfer of their undertaking. It has therefore ruled that the directive is applicable wherever, in the context of contractual relations, there is a change in the legal person who is responsible for carrying on the business and who incurs the obligations of an employer towards employees of the undertaking. ( )

36. Accordingly, the Court has also ruled that the directive covers a case in which an undertaking entrusts by contract to another undertaking the responsibility for operating cleaning services which it previously performed itself ( ) and a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking. ( )

37. More relevant to the legal assessment of the present case, however, is Hernández Vidal, ( ) which has many parallels with the main proceedings and in which the Court ruled that the directive must be capable of applying where an undertaking which used to have recourse to another undertaking for the cleaning of its premises or part of them decides to terminate its contract with that other undertaking and in future to carry out that work itself. Because precisely this situation exists in the main proceedings, the Court’s findings in the abovementioned judgment may be readily applied in my view. Consequently, as Advocate General Geelhoed rightly stated in his Opinion in Abler and Others, ( ) the notion of ‘legal transfer’ is not to be construed as meaning that the transfer must be effected ‘pursuant to’ a legal agreement. Rather, a unilateral legal transaction, such as the termination of a contract for cleaning services, is also effected within the context of a legal agreement and can therefore fall within the scope of the directive.

38. Against this background, the termination of the previous contract with CLECE by the Ayuntamiento and the subsequent taking over of the cleaning services which had previously been carried out by its employees is sufficient to uphold the existence of a ‘legal transfer’ within the meaning of Article 1(1)(a) of Directive 2001/23. Because there is therefore a change of employer as the result of a contract, two of the conditions necessary for the acceptance of a transfer of a business are satisfied.

b) Transfer of an economic entity

i) Notion of economic entity

39. As was mentioned in the introduction, the directive is intended to ensure the continuity of employment relationships existing within an economic entity, irrespective of any change of ownership, with the result that the decisive criterion for establishing whether there is a transfer for the purposes of the directive is whether the economic entity in question retains its identity. ( ) The transfer must therefore relate to a stable economic entity whose activity is not limited to performing one specific works contract. ( ) The Court has held that the term entity refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective. ( )

40. This wording was added subsequently and almost verbatim to Article 1(1)(b) of the Transfer of Undertakings Directive by Directive 98/50, in accordance with the definition developed by the Court, but without the scope of the predecessor, Directive 77/187, as interpreted by the Court having been altered. ( ) This is made clear by the eighth recital in the preamble to Directive 2001/23. Under Article 1(1)(b), the transfer must relate to ‘an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary’.

ii) General criteria for assessing the existence of an economic entity

– The specific criteria

41. In order to determine whether an entity within the meaning of the abovementioned legal definition has been transferred, it is necessary to consider all the facts characterising the transaction in question. In this regard, in its settled case-law the Court has had recourse to a list of seven assessment criteria in total, in particular (1) the type of undertaking or business, (2) whether or not its tangible assets, such as buildings and movable property, are transferred, (3) the value of its intangible assets at the time of the transfer, (4) whether or not the majority of its employees are taken on by the new employer, (5) whether or not its customers are transferred, (6) the degree of similarity between the activities carried on before and after the transfer and (7) the period, if any, for which those activities were suspended. However, all those circumstances are merely individual factors in the overall assessment which must be made and cannot therefore be considered in isolation. ( )

42. In its rulings the Court has also pointed out the need, in assessing the facts characterising the transaction in question, to take into account among other things the type of undertaking or business concerned. In the view of the Court, it follows that the degree of importance to be attached to each criterion for determining whether or not there has been a transfer within the meaning of the directive will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business. Where in particular an economic entity is able, in certain sectors, to function without any significant tangible or intangible assets, the maintenance of its identity following the transaction affecting it cannot, logically, depend on the transfer of such assets. ( )

43. This is true in particular in certain sectors, such as cleaning, in which, as the Court held in Hernández Vidal and Others, ( ) tangible or intangible assets are often reduced to their most basic and the activity is essentially based on manpower. ( ) In that case the Court also therefore ruled, with regard to a cleaning firm, that an organised grouping of wage earners who are specifically and permanently assigned to a common task may, in the absence of other factors of production, amount to an economic entity.

44. In that judgment, the Court summarised its case-law in a single formula, which is nevertheless impressive in its clarity and simplicity. According to that formula, while an economic entity ‘must be sufficiently structured and autonomous, it will not necessarily have significant assets, tangible or intangible’. ( ) It is possible to draw the following conclusions from that principle, which are relevant to the legal analysis of the present case: restrictions on the requirement of the existence of tangible and intangible assets may be accepted, depending on the sector in question, but this does not affect the mandatory requirements of the entity concerned being ‘structured’ and ‘autonomous’. ( )

45. The Court itself therefore takes the view that the seven abovementioned criteria it has laid down for a transfer of a business certainly do not have to be satisfied cumulatively. Rather, account must always be taken of the relevant characteristics of the specific business and the specific sector. Against this background, a detailed examination will be conducted below only of those criteria which are relevant to these preliminary ruling proceedings and whose satisfaction would specifically appear to raise problems.

46. These criteria should now be applied to the main proceedings.

47. The organisational entity which existed before the transfer must essentially continue to exist as such without change after the transfer. It is therefore crucial, first of all, whether an autonomous economic entity actually existed before the transfer. The analysis in the main proceedings must therefore concern only the group of cleaners used by CLECE for the Ayuntamiento. Against this background, it is completely irrelevant, contrary to the view taken by the Spanish Government, ( ) whether the Ayuntamiento, as a municipal authority, satisfies the requirements relating to an autonomously organised entity.

– No transfer of tangible or intangible assets

Tangible assets

48. Specifically in relation to the situation in the main proceedings to be assessed here, it is apparent from the documents before the Court that the applicant in the main proceedings clearly worked as part of a team of about four cleaners ( ) for the Ayuntamiento, in which connection it should be noted that, according to the referring court, no special equipment was used for that job. It can thus be inferred that, in carrying out their activity, the employees were primarily reliant on manpower and, consequently, a possible transfer of tangible assets, such as plant, machinery or cleaning equipment, ( ) to the Ayuntamiento did not take place following the termination of the contract for cleaning services.

Intangible assets

49. In order to assess whether an economic entity within the meaning of the directive has been transferred, not only the tangible assets but also intangible assets which may have been provided by the original employer with a view to carrying out the activity are important.

50. According to case-law, account must be taken of certain aspects, such as the identity of the workforce, the management staff, the way in which its work is organised and the operating methods, which, in the view of the Court, distinguish the character of a business or part of a business as an economic entity. ( ) As regards the first three aspects, which all concern the internal organisation of an undertaking, there is nothing to indicate that the team, consisting of just four employees, who worked for the applicant in the main proceedings had management staff, let alone a certain organisational structure.

51. According to the judgment in Klarenberg, ( ) the Court requires a certain minimum degree of internal organisation for an undertaking, in such a way that there is a link of interdependence and complementarity between the individual elements of production, which ensures that they all work together for the performance of a specified economic activity. ( )

52. The referring court points out in any case that the applicant in the main proceedings supplied its cleaning services in municipal schools and premises belonging to the municipal authority. It must therefore be assumed that each employee largely worked independently of the others, being assigned certain premises which they were required to clean within a precisely defined period. It is thus uncertain whether the requirements laid down by the Court that the entity concerned must be ‘structured’ and ‘autonomous’ ( ) are satisfied in the main proceedings, in so far as the activity carried out by the applicant in the main proceedings and the other employees is essentially identical and cooperation between them as a team – which could be evidence for the existence of a complex organisational structure – would not appear to exist.

53. On the other hand, it should not be ignored that planning and organisation and skills and knowledge are generally much less important in cleaning activities than in other professional activities. ( ) It is not least for that reason that cleaning firms often employ unskilled labour. That conclusion admittedly does not hold for specialist cleaning services which have special equipment or special working methods. Important intangible assets for a specialist cleaning service would be, for example, the organisation of workflow, calculations, knowledge of certain cleaning processes, working methods, skills acquired in dealing with substances which are damaging to health or even extremely dangerous, to mention only a few.

54. In the absence of indications to the contrary in the documents before the Court, it must be assumed that none of the abovementioned types of intangible assets was transferred to the Ayuntamiento. Aside from this, there is nothing to suggest that the team to which the applicant in the main proceedings belonged could be regarded as a specialist cleaning service in the abovementioned sense. In view of this, it appears likely that no special skills or working methods were needed to carry out that activity. There was therefore likewise no transfer of intangible assets.

– Distinction with succession of function

55. Because there is no transfer of tangible and intangible assets, the existence of an economic entity in the main proceedings would have to be rejected in principle even at this stage of the analysis. In so far as the Ayuntamiento merely continued the task of cleaning, without taking on the employees who had carried out that activity previously, in principle a simple ‘succession of function’ could be taken to exist in the main proceedings, which, in accordance with the Court’s recent case-law, is not as a rule covered by the scope of Directive 2001/23. ( )

56. As the Court has rightly acknowledged, the scope of the term ‘transfer of an undertaking’ is not without limitation. ( ) The Court defined the outer limits of that broad interpretation in Süzen, ( ) making clear that the mere fact that the service provided by the old and the new awardees of a contract is similar does not support the conclusion that an economic entity has been transferred. In the view of the Court, such an entity cannot be reduced to the activity entrusted to it.

57. This case-law was confirmed in Hernández Vidal and Others, which, as has already been mentioned, has numerous parallels with the present case. The situation was similar in so far as that case – like the main proceedings – concerned the question whether an undertaking which had terminated a cleaning contract between it and a cleaning firm in order in future to assume itself the task of cleaning its own premises was legally required under the Transfer of Undertakings Directive to re-employ the cleaning firm’s employees. In that judgment the Court made the following finding:

‘So, the mere fact that the maintenance work carried out by the cleaning firm and the work then carried out itself by the undertaking which owns the premises is similar does not justify the conclusion that there has been a transfer of an economic entity between the two undertakings. Such an entity cannot be reduced to the activity entrusted to it.’ ( )

58. In view of the clear similarity between the facts, it would appear that this case-law can be applied to the present case. The continuation of the cleaning work is not in itself a determining factor which suggests the transfer of an economic entity but, in accordance with the Court’s case-law, merely one of several indicators.

– The criterion of taking on a major part of the staff

The Court’s case-law

59. In my opinion, a succession of function could possibly be rejected if the national court concluded, in its overall assessment of the circumstances of the main proceedings, that other criteria are satisfied in the present case which strongly suggest the existence of an economic entity.

60. However, the counter-argument could be raised in this connection that apparently none of the four or five employees who had previously worked for CLECE – including the applicant in the main proceedings – was re-employed. Re‑employment is an important indicator for the existence of an economic entity in accordance with the Court’s case-law. Since Süzen ( ) the Court has taken the view that ‘since, in certain labour-intensive sectors, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, it must be recognised that 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 on a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task’. It bases its view on the ground that ‘in those circumstances, the new employer takes over a body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis’.

61. Although that case-law, like the examination of the other abovementioned criteria in the main proceedings, indicates that there was no transfer of an economic entity within the meaning of Directive 2001/23, I would briefly like to comment below on the statements made by the Court in the abovementioned judgments. In the interests of clarification of the Court’s case-law, my explanations mainly concern the question to what extent the criterion of taking on a major part of the staff actually allows it to be reliably concluded that there exists a transfer of a business.

Disadvantages of such a criterion

62. It should be borne in mind, first of all, that ‘taking on a major part of the staff’ is essentially the main legal consequence of Directive 2001/23 or – more precisely – the national implementing legislation. It is intended to ensure the Union legislature’s aim that there should be continuity of existing employment relationships in the event of transfers of businesses. ( ) The fact that the Court also appears to make this legal consequence a criterion for the transfer of a business would therefore seem to be methodically dubious at first glance. A single element cannot, from a regulatory point of view, be both a criterion and a legal consequence of Directive 2001/23, without absurd conclusions being reached, as has already been pointed out by Advocate General Cosmas in his Opinion in Hernández Vidal and Others. ( ) The fact that a major part of the staff is taken on following a transfer of a business only where a major part of the staff has been previously taken on is indeed bordering on circular reasoning ( ) and, moreover, would certainly not be the intention of the legislature.

63. This reading of the Court’s case-law also conceals the danger, of which Advocate General Geelhoed rightly complained in his Opinion in Abler and Others, ( ) of a ‘discrepancy between the legislation and case-law’ and invites abuse. In so far as this line of case-law is understood as meaning that taking on a ‘major part of the staff’ is a crucial factor, the applicability of the directive is, in actual fact, ultimately placed in the sole discretion of the new employer. He can circumvent the Union legislation on transfers of businesses in labour-intensive sectors simply by not taking on the old employer’s staff. It is clear that this is contrary to the intention of the Union legislature, which is to protect the employees in the event that the owner of the undertaking changes and, moreover, even creates absurd incentives for the new employer to get rid of as many of the employees as possible, if not all of them, in this way. ( )

64. In my view, however, the approach described above does not take sufficient account of the Court’s findings on that criterion and ultimately stems from a narrow approach to that case-law. It is apparent from the wording of the crucial passages of the relevant judgments that the Court specifically considers only taking on ‘a major part, in terms of their numbers and skills, of the employees’ to be important. It follows that it is matter not only of numbers, but also and in particular of qualitative and organisational factors. I will examine this in further detail below in connection with an attempt at a purposive construction of the case-law.

65. First, however, it should be noted that under Directive 2001/23 an employer is certainly not always required, at any price, to take on all employees. ( ) Instead, through its differentiated regulatory system, the directive also takes account of the principle of private autonomy, which is fundamental to the Union legal order. Regard must also be had to this fact as a guiding principle and outer limit in interpreting this secondary legislation. An excessively broad interpretation of the notion of ‘economic entity’, for example by focusing solely on the actual number of employees taken on in the main proceedings, may lead to a disproportionate restriction of the employer’s private autonomy if he is prevented from organising his contractual relationships in accordance with his legitimate interests. In this connection, regard must be had to the criticism raised by Advocate General Geelhoed, ( ) who argued convincingly that an unconditional obligation on the part of the employer to re-employ the previous staff would run counter to the principles of free competition, in particular in sectors in which the quality of the employees is a significant factor in the quality of the service provision. If, for example, the new employer were to engage some new staff for a certain activity because the work done by the previous staff leaves something to be desired, an excessively broad interpretation of the notion of ‘economic entity’ would possibly prevent the new employer employing better employees and, instead, lead to an economically less sensible preferential treatment of less good employees.

66. As an interim conclusion, it should be stated at this point that in the light of the above statements, at least in situations like the present case, the criterion of taking on staff cannot constitute the determining factor. Rather, a purposive construction of that criterion should first be attempted in order then to be able to give it due consideration in the context of the necessary overall assessment.

Attempt at a purposive construction of the case-law

67. If the Court were to consider this criterion still to be relevant, it would be advisable, in the interests of legal certainty, to clarify the Court’s case-law on the criterion of taking on a ‘major part of the staff’. The spirit and purpose of the Transfer of Undertakings Directive form the starting point for the deliberation.

68. An examination of Directive 2001/23 and of the underlying legislative considerations shows that the continued use of a business organisation created by the predecessor and the associated advantage, compared with setting up one’s own business or part of a business, forms the essence and basis for legitimacy of the principle that the transferee of the assets is required to enter into all the existing employment relationships. ( ) According to the logic behind that provision, the new employer – if he profits from the economically important business assets of the old employer – can also be expected to employ the people working with those assets. The protection of employees is in turn guaranteed by the fact that they are not separated from the basis of their work, namely the economic assets, as a result of business transfer strategies. ( )

69. The case-law illustrates that the Court also proceeds from this understanding of the directive, for example where it makes a transfer of a business subject to the condition that the transferee retains a functional link between the various elements transferred which allows it to pursue an analogous economic activity. ( )

70. The transfer of a major part of the staff within the meaning of the abovementioned case-law in itself gives very little indication as to whether such an advantage exists for the transferee. The benefit of a transfer of staff can generally be better assessed by reference to quality, i.e. their skills and experience. For that reason in particular, the Court states that an economic entity retains its identity after it has been transferred where the new employer takes on a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task. The criterion of the ‘number’ of employees taken on assumes an importance of its own as a result of being linked with the criterion of ‘skills’ by the conjunction ‘and’. Both criteria have a close contextual link in so far as the number of existing employees can immediately cast light on the degree of organisation. Organisation is necessary only if there is a need for a division of labour, which in turn calls for specialisation and thus skills. Skills are implied by the addition regarding the special assignment of those staff for a certain task (‘specially assigned ... to that task’). Focusing on the number of employees taken on is, to all appearances, the result of a purely superficial examination.

71. Indicative value can possibly be attached to the taking on of employees in so far as certain employees embody intangible assets, by virtue of their know-how for example. ( ) It is not necessary, however, to infer existing skills simply from the number of existing or transferred employees and, therefore, the criterion of the transfer of a major part of the staff should not be regarded as exclusively decisive in being able to assess whether a transfer of a business has actually taken place. ( )

72. If that case-law is nevertheless applied on the basis of the above understanding, i.e. in connection with the ‘skills’ factor, an economic entity cannot in any event be taken to exist in the main proceedings, especially since, first of all, none of the previously employed workers was taken on and, secondly, there is no evidence to suggest that the staff have any special skills in the form of particular proficiencies or working methods. ( )

73. In the light of the foregoing, there is not an ‘economic entity’ within the meaning of Article 1(1)(b) which could be been the object of a transfer of a business either on the basis of direct application or in accordance with my interpretation of that case-law, which has regard to the spirit and purpose of Directive 2001/23.

iii) Interim conclusion

74. In particular, it is not possible to discern any tangible or intangible assets which are necessary in order to carry out cleaning work and which could point to the existence of such an entity. The third condition for the applicability of Directive 2001/23 to the main proceedings is not satisfied.

c) Legal importance of the requirement of engaging new staff

75. This assessment is likewise not affected by the last aspect of the question referred. In its question concerning the applicability of Directive 2001/23, the referring court expressly includes the fact that the Ayuntamiento was only required to hire new staff in order to be able to carry out the cleaning work itself in future. However, neither Directive 2001/23 nor the Court’s case-law attaches importance to the possible need for the undertaking to hire new staff. This fact cannot therefore in itself justify the assumption of a transfer of a business within the meaning of the directive. Furthermore, the simple fact that new staff are required does not permit any reliable inferences to be drawn as to the satisfaction of the other criteria developed by the Court, which have been examined in detail above. The need to hire new staff can equally indicate a mere succession of function, especially if – as in the present case – not a single employee is taken on and instead new workers are recruited via an employment agency to carry out functionally identical activities. Specifically in the light of this factor, the Spanish Government is therefore also perfectly right to describe the transaction at issue as a ‘transferencia de funciones’ (transfer of functions) between CLECE and the Ayuntamiento. ( )

76. The requirement mentioned by the referring court of engaging new employees is merely a criterion under a Spanish national provision, namely Article 14 of the Collective Agreement. In this connection, it should be borne in mind that under Article 8 of Directive 2001/23 and in accordance with the settled case-law of the Court, the national legislature is free to introduce national rules going further than the requirements laid down in Directive 2001/23 which give employees more extensive protection in cases like the present one. ( ) This is an expression of the partial harmonisation sought by the directive, which is not intended to establish a uniform level of protection throughout the Union on the basis of common criteria, but to extend the protection guaranteed to employees independently under the laws of the individual Member States to cover the case where an undertaking is transferred. ( )

77. The Spanish legislature has availed itself of that option with Article 14 of the Collective Agreement. Under that provision, an undertaking which takes over cleaning services itself, after it has previously had those services carried out by another undertaking, must keep on the staff of the latter undertaking at least if it wishes to employ new staff to carry out the cleaning. Nevertheless, it is solely for the national courts to decide whether and to what extent Article 14 of the Collective Agreement is applicable to the present case, since that provision goes further than the requirements of Directive 2001/23 and is not outlined in Union law.

78. Even though Article 14 of the Collective Agreement therefore has no relevance to the answer to the question referred for preliminary ruling, it should nevertheless also be pointed out that in its order for reference the referring court expressly rejected the applicability of Article 14 of the Collective Agreement to the present case with reference to the judgment delivered by the Spanish Tribunal Supremo on 10 December 2008. ( ) The Court is bound by that finding of the national court, which solely concerns national law in this respect.

d) Conclusion

79. In the light of the foregoing, I conclude that Directive 2001/23 does not apply to a situation like that at issue in the main proceedings.

VII – Conclusion

80. In the light of the above considerations, I propose that the Court answer the question referred by the Tribunal Superior de Justicia de Castilla-La Mancha as follows:

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 is to be interpreted to the effect that the directive does not cover a situation like that at issue in the main proceedings, in which a municipal authority which previously contracted a private undertaking to clean its premises subsequently terminates that contract in order to take over the cleaning services itself, where the authority does not take on a major part of the staff of the subcontractor, in terms of their number and their skills, who the private undertaking had previously employed for that activity.