WRITTEN QUESTION E-3806/00 by Stephen Hughes (PSE) to the Commission. Safeguarding employees' rights in the event of transfers of undertakings.
Date: 2000-12-07
Institutions: European Parliament, Provisional data
Subjects: application of EU law, child care, labour law, services contract, transfer of businesses

19.6.2001

EN

Official Journal of the European Communities

C 174 E/147

(cid:129) has it checked whether the directive has been correctly transposed in the other countries?

(cid:129) in the light of the failure of a majority of the Member States to transpose Directive 97/66/EC and
given that the amendment of Directive 95/46/EC (2) is pending, is it not premature to proceed with
amending this legislation via the proposal for a directive COM(2000) 385?

(1) OJ L 24, 30.1.1998, p. 1.
(2) OJ L 281, 23.11.1995, p. 31.

Joint answer
to Written Questions E-3798/00 and E-3802/00

(8 March 2001)

Directive 97/66/EC was adopted by the European Parliament and the Council on 15 December 1997
following a meeting of the Conciliation Committee. The provision referred to in the Honourable Member(cid:146)s
question was not contained in the common position adopted earlier by the Council on 12 September
1996.

This provision is one of the elements of the compromise reached on the matter of confidentiality of
communications, which was one of the issues submitted to the Conciliation Committee. In order to make
one of the European Parliament(cid:146)s amendments, which the Council was prepared to accept, compatible with
the remainder of the text of the Directive, it proved necessary to add an explicit reference to recordings
legally authorised by certain Member States in the course of limited business practice for the purpose of
the
providing evidence of a commercial
compromise on this point, provision had consequently to be made for a further period to enable some
Member States to include this possibility in their national legislation.

transaction or communication (Article 5(2)). As part of

The Honourable Member(cid:146)s other questions fall within the scope of
Commission by the Treaty establishing the European Community, and in particular Article 211 thereof.

the powers attributed to the

(2001/C 174 E/152)

WRITTEN QUESTION E-3806/00

by Stephen Hughes (PSE) to the Commission

(7 December 2000)

Subject: Safeguarding employees(cid:146) rights in the event of transfers of undertakings

Is it possible that Directive 77/187/EEC (1), as amended by Directive 98/50/EC (2), on safeguarding
employees(cid:146) rights in the event of transfers of undertakings could apply in the case that, following a tender
procedure, there was a change of contractor with respect to a contract for the provision of a crŁche, on
the assumption that the crŁche in question fulfilled the criteria for it to be considered an economic entity
retaining its own identity?

If it were the case that the Directive were deemed to apply; how would its application be made compatible
with the principles of non-discrimination in public procurement procedures set out in Directive 92/50/
EEC (3) on public service contracts?

If it were the case that the Directive was applicable but was not in fact applied, what redress would
employees of the transferor have, and against which party?

(1) OJ L 61, 5.3.1977, p. 26.
(2) OJ L 201, 17.7.1998, p. 88.
(3) OJ L 209, 24.7.1992, p. 1.

C 174 E/148

Official Journal of the European Communities

EN

19.6.2001

Answer given by Mrs Diamantopoulou on behalf of the Commission

(9 February 2001)

The question relates 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(cid:146) rights in the event of transfers of
undertakings, businesses or parts of businesses, as amended by Council Directive 98/50/EC of 29 June
1998, and whether it applies in the event that, following a tender procedure, there was a change of
contractor with respect to a contractor for the provision of a crŁche, on the assumption that the crŁche in
question fulfilled the criteria for it to be considered an economic entity retaining its own identity.

If the transfer of activities involves the precise conditions mentioned above, the answer is yes. Under the
consistent case law of the Court of Justice, the decisive criterion for the existence of a transfer within the
meaning of Directive 77/187/EEC is whether the entity in question retains its identity following the
transfer. The Court(cid:146)s opinion is that identity is maintained if the transferee pursues the same economic
activity and if all the resources necessary to pursue the activity in question are transferred. Of course, the
conditions of application of the Directive are assessed on a case-by-case basis; all of the circumstances in
each situation must be examined in order to determine whether the conditions for the transfer of an entity
are actually met.

The Honourable Member also asks how the application of Directive 77/187/EEC as amended would be
made compatible with the principles of non-discrimination in public procurement procedures set out in
Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of
public service contracts.

It should be explained that the central objective of Directive 77/187/EEC as amended is to safeguard
employees(cid:146) rights in the event of a transfer resulting from a legal transfer or merger bringing about a
change of employer. Once the objective conditions for application of the Directive are met, the provisions
protecting employees(cid:146) rights come into play regardless of the actual manner of transfer of activity. The fact
that the transfer follows a procedure for the award of a public service contract in no way affects the
application of Directive 77/187/EEC. The aim of Directive 92/50/EEC is not to allow economic entities to
be taken over at the expense of employees(cid:146) rights, but to ensure that there is a level playing field for
service providers wishing to compete for the award of a particular contract. The aim of this Directive is
essentially to guarantee that the competition rules applied are the same for all economic operators, but in
no way does it require Member States to contravene employees(cid:146) rights (1). Moreover, it should be noted
that the provision of a crŁche constitutes a service within the meaning of Annex I B of the Directive,
which provides for a (cid:145)restricted(cid:146) system for the award of a contract.

Finally, claims for redress for employees whose rights may have been ignored may be brought before the
national courts according to the conditions set out in the Member States(cid:146) legislation.

(1) See the Opinion of Mr Advocate General Philippe L(cid:201)GER in case C-172/99.

(2001/C 174 E/153)

WRITTEN QUESTION E-3807/00

by Konstantinos Hatzidakis (PPE-DE) to the Commission

(7 December 2000)

Subject: Illegal deductions of aid for farmers

In its report on the 1999 financial year the Court of Auditors has found that in Greece the Community aid
paid to producers at both central government and local levels is subject to deductions which are not
permitted by any Community legislation. Deductions of the order of 1 % are made in respect of aid for
olive oil producers in favour of the National Federation of Olive Oil Producers and deductions of the order
of 3 % (some Drs. 17 billion) in respect of olive oil, tobacco and cotton producers in favour of the Greek
Agricultural Insurance Organisation (ELGA).