Case C-4/01: Reference for a preliminary ruling by the Employment Tribunal, West Croydon (United Kingdom), by order of that court of 5 January 2001, in the case of Ms S.G. Martin, Mr R.K.A. Daby and Mr B.J. Willis against South Bank University
Date: 2001-02-24
Institutions: Court of Justice
Subjects: interpretation of the law, labour law, pension scheme, severance pay, social-security contribution

24.2.2001

EN

Official Journal of the European Communities

C 61/7

— Manifest error of fact and law, distortion, contradiction,
insufficient statement of reasons and infringement of
Article 176 of the EC Treaty: the Court of First Instance
quite simply obliterated the findings in its two earlier
judgments (2) and even accepted, theoretically, the expla-
nation offered by the Commission at the hearing that, by
referring in their letter of 1 July 1987 to a ‘quid pro quo’
consisting in their refusal to authorise other makes of
Japanese car, the French authorities simply ‘meant to
make the policy they [were implementing] more palat-
able’, a policy that finds no basis in any regulation or law
pressure
authorising
accompanied by threats. That was a mere expedient. It
was a distortion of a clear text, already correctly analysed
in the previous judgments, to find, in vague terms, to
the contrary, that the Commission’s ‘explanation’ could
‘reasonably be accepted’. It would not appear to matter
that, for this manifest misappraisal of the legal import of
the facts, the Court of First Instance had to distort the
meaning of terms whose sense is had to misconstrue,
such as ‘arrangement’, ‘quid pro quo’, undertaking, ‘reas-
sessment of the system or commercial choice’.

irresistible

exertion

the

of

(1) In Case T-154/98, OJ C 358 of 21 November 1998, p. 22.
(2) The judgments in Cases T-7/92 [1993] ECR II-669, and T-387/94

[1996] ECR II-961.

Reference for a preliminary ruling by the Employment
Tribunal, West Croydon (United Kingdom), by order of
that court of 5 January 2001, in the case of Ms S.G. Martin,
Mr R.K.A. Daby and Mr B.J. Willis against South Bank
University

(Case C-4/01)

(2001/C 61/13)

Reference has been made to the Court of Justice of the
European Communities by an order of
the Employment
Tribunal, West Croydon (United Kingdom) of 5 January 2001,
which was received at the Court Registry on 8 January 2001,
for a preliminary ruling in the case of Ms S.G. Martin, Mr
R.K.A. Daby and Mr B.J. Willis against South Bank University,
on the following questions:

1. Do rights which are contingent upon either dismissal or
premature retirement by agreement with the employer
fall within the definition of ‘rights and obligations’ within
the meaning of Article 3.1 of the Directive (1)?

2.

3.

4.

Is the employees’ entitlement to the payment of early
superannuation benefits and lump sum compensation on
the
redundancy/in the interests of
service/on organisational change, a right to an old age,
invalidity or survivors’ benefit within the meaning of
Article 3.3 of the Directive?

the efficiency of

If and to the extent that the answer to question 2 is ‘no’,
is there an obligation on the transferor arising from the
contract of employment, the employment relationship or
the collective agreement within the meaning of Article
3.1 and/or 3.2 which transfers by reason of the transfer
of the undertaking and renders the transferee liable to
pay the benefits to the employee upon dismissal?

If the answers to questions 2 and 3 are ‘no’ and ‘yes’
respectively, may the employee, nonetheless, agree to
forego his/her entitlement to early, payment of pension
and retirement lump sum and/or the annual allowance
and lump sum compensation in circumstances where the
transferee’s pension scheme does not entitle him or her
to the same benefits and the same circumstances or at all,
and he/she

(i)

becomes a member of
the transferee’s pension
scheme; makes contributions to it and/or has contri-
butions made to it on his/her behalf by the transferee
employer;

(ii) becomes a member of

the transferee’s pension
scheme, makes contributions to it and has contri-
butions made to it on his/her behalf by the transferee
employer and successfully applies to transfer his/her
accrued benefits
from the transferor’s pension
scheme into the transferee’s pension scheme?

5.

If so, what are the criteria by which the national
court should decide whether, in such circumstances, the
employee has agreed?

6. Are Articles 3.1 and/or 3.2 of

the Directive to be
interpreted as precluding the transferee from offering
transferred employees the option of taking early retire-
ment on the basis of early retirement benefits that are less
beneficial than those to which they are entitled as a
consequence of the effect of the Directive?

7.

Is the answer to the foregoing question affected if, when
offering transferred employees the option of taking early
retirement on terms less beneficial than those to which
they are entitled under the Directive, the transferee states
that no early retirement benefits will be available in
future?

C 61/8

EN

Official Journal of the European Communities

24.2.2001

8. Where the parties have agreed that the employee will
take premature retirement on the terms offered by the
employer, what criteria should the national court apply
in determining whether the transfer of the undertaking is
the reason for that agreement in accordance with the
principle enunciated by the Court
in Foreningen af
Arbeidsledre-v-Daddy’s Dance Hall, Case 324/86 (2)?

9.

If the effect of Article 3 of the Directive is to preclude the
transferee from offering transferred employees the option
of taking early retirement on the basis of early retirement
benefits that are less beneficial than those to which they
are entitled under the effect of the Directive, what are the
consequences for employees who accept early retirement
on the basis offered to them by the employer?

(1) Council Directive 77/187/EEC of 14 February 1977 on the
approximation of the laws of the Member States relating to the
transfers
safeguarding of employees’ rights in the event of
of undertakings, businesses or parts of businesses (OJ L 61,
05.03.1977, p. 26).

(2) ECR 1988 p. 739.

Action brought on 8 January 2001 by the Kingdom
of Belgium against the Commission of the European
Communities

(Case C-5/01)

(2001/C 61/14)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 8 January 2001 by the Kingdom of Belgium,
represented by A. Snoecx, acting as Agent, assisted by J.M. De
Backer, G. Vandersanden and L. Levi, lawyers, with an address
for service in Luxembourg.

The Kingdom of Belgium claims that the Court should:

— annul the Commission’s decision of 15 November 2000
(No C 76/1999) entitled ‘State aid granted by Belgium in
favour of the steel undertaking Cockerill Sambre S.A.’;

— order the Commission to pay the costs.

Pleas in law and main arguments

— Distortion of the notion of aid as referred to in Article
4(c) CS and in the steel aids code — manifest error of
assessment: Cockerill Sambre has not derived any benefit
from the intervention of the Federal and Walloon auth-
orities in the implementation of the plan for the reduction
of working time, since not only was the company under
no legal obligation to pay remuneration for the 34 hours
worked at the level payable for 37 hours but, in addition,
the collective working agreement of 17 April 1998
contained no commitment on the part of the company
to maintain the. remuneration of those workers affected
by the reduction in working time.

the transitional

Consequently,
increment which the
Region of Wallonia has undertaken to pay does not
constitute operating costs of the company. That tran-
sitional increment is not intended to constitute remuner-
ation for work done by the workers affected by the
reduction in working time but to compensate for the
financial efforts which they have themselves proposed to
make with a view to the creation of 150 jobs for young
workers.

The reduction in social contributions agreed to by the
Federal authorities confers no economic advantage on
Cockerill Sambre. The overall number of hours worked
within the company has not been altered in response to
the plan for the reduction in working time accompanied
by the compensatory engagement of 150 young workers.
The same number of hours are worked for the company,
at the same cost to the company.

— Failure to take account of the notion of a beneficiary: the
interventions by the public authorities constitute aid in
favour of the Cockerill Sambre workers affected by the
scaling-down, and not aid in favour of Cockerill Sambre.
The fact that aid is granted to workers in their capacity as
employees of a specific undertaking does not, as such,
preclude it from being categorised as aid to individuals.

— Non-compliance with the procedure laid down by the
steel aids code - Lack of competence: the fact that the
three-month time-limit prescribed by Article 6(5) has not
been complied with means that the Commission is not
competent to decide whether a measure constitutes aid
incompatible with the steel aids code.

— Failure to fulfil the obligation to provide a statement of

reasons.

— (In the alternative) Infringement of Article 95 CS: the
intervention measures are not intended artificially to
maintain jobs in an undertaking which has no commercial
or financial viability; instead, they are designed to attain a
social objective which is, moreover, championed by the
European Community, namely progress towards the
achievement of full employment by means of the redistri-
bution of work. In those circumstances, the Commission
has committed a manifest and obvious error of assess-
ment by refusing, on an exceptional basis, to authorise
the measures in issue under Article 95 CS.