ADVISORY OPINION OF THE COURT of 25 September 1996 in Case E-2/95 (request for an advisory opinion from Gulating lagmannsrett): Eilert Eidesund against Stavanger Catering A/S (1) (Council Directive 77/187/EEC - transfer of part of a business - transfer of rights to pension benefits) (97/C 37/07)

(Pursuant to Article 27 (5) of the Rules of Procedure authentic in English and Norwegian)

In Case E-2/95: request to the Court pursuant to Article 34 of the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice by Gulating lagmannsrett (the Gulating Court of Appeals), Norway, for an advisory opinion in the case pending before it between Eilert Eidesund and Stavanger Catering A/S - on the interpretation 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 businesses - the Court, composed of: Bjørn Haug, President, Thór Vilhjálmsson (Rapporteur) and Carl Baudenbacher, Judges; Per Christiansen, Registrar, gave an advisory opinion on 25 September, the operative part of which is as follows:

1. Article 1 (1) of the Act referred to in point 23 of Annex XVIII to the EEA Agreement (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) is to be interpreted so as to mean that, where catering services for an undertaking have by contract been entrusted to a company, the termination of that contract and the conclusion of a new contract for the same services with another company does not exclude the Directive from being applicable. For there to be a transfer of an undertaking, business or part of a business within the meaning of the Directive, an economic entity with its own identity must be transferred and this identity must be retained. In order to ascertain whether these conditions are fulfilled in a case such as that which is the subject of the main proceedings, it is necessary to have regard to all facts characterizing the transaction in question, including the type of undertaking or business concerned, whether or not tangible or intangible assets are transferred, the value and the nature of such assets, whether or not a majority of the employees, or employees with a special expertise or experience are taken over, whether customers are transferred, the degree of similarity between the activities carried on before and after the transfer and the period, if any, for which the activities were suspended.

2. Whether the new catering company is to take over employees and stock must be taken into account in the overall assessment referred to in point 1.

3. The fact that a transaction is subject to public procurement directives does not as such prevent Directive 77/187/EEC from being applicable in a case such as the one at hand.

4. According to Article 3 (3) of Directive 77/187/EEC the employer's obligation to pay premiums to supplementary pension schemes for an employee is not transferred.

(1) OJ No C 149, 23. 5. 1996, p. 11.