6.

By contrast, the question in this case is whether there can be said to have been a ‘transfer of an undertaking, business or part of a business’ within the meaning of Article 1(1) of the Directive. Here too there is a consistent line of cases, which have been summarized recently by the Court in the Redmond Stichting case. The decisive criterion employed by the Court is whether the economic entity in question (that is to say, the undertaking, business or part of a business) retains its identity and this would be indicated by the fact that its operation was actually continued or resumed by the new employer with the same or similar economic activities. ( 5 ) According to that which the Court has consistently held, in order to determine whether that condition is met, it is necessary to ‘consider all the facts characterizing the transaction in question, including the type of undertaking or business, whether or not the business's tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred and the degree of similarity between the activities carried on before and after the transfer and the period, if any, for which those activities were suspended. It should be noted, however, that all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation’. ( 6 ) In my view, if those assessment criteria are applied to the facts in this case, there is little, if any, room for doubt: ISS contracted to take over Philips permanent canteen staff as from 1 January 1989; the ‘customers’ of the canteens were the same before and after the transfer, namely the staff of Philips; the activity carried out was the same before and after (the agreement goes so far as to prohibit rationalization during the first six months of the currency of the agreement) and ISS assumed responsibility for this. Moreover, according to the case-file, there was no break in the canteens' operations (wages were paid by Philips until 31 December 1988 and by ISS as from 1 January 1989). To my mind, ISS's arguments in this connection do not affect this conclusion. The fact that moveable property was not transferred by Philips, but made available without charge, constitutes part of the overall contractual arrangements between ISS and Philips in relation to the transfer; that fact in itself does not preclude the application of the Directive. ( 7 ) The fact that the part of the undertaking transferred, which constitutes merely a facility for the benefit of Philips's staff, is non-profit-making is also irrelevant in my view: moreover, the Court held in Redmond Stichting that the Directive was in principle applicable to non-profit-making undertakings. ( 8 ) In the final analysis, however, it is for the national court to make the necessary factual assessments, having regard to the abovementioned interpretative criteria laid down by the Court, ( 9 ) in order to establish whether or not there has been a transfer within the meaning of the Directive. The national court is in fact best placed to assess the significance of the facts which it mentions in its order for reference.