Judgment of the Court (Sixth Chamber) 24 January 2002 in Case C-51/00 (Reference for a preliminary ruling from the Cour du Travail de Bruxelles): Temco Service Industries SA v Samir Imzilyen, Mimoune Belfarh, Abdesselam Afia-Aroussi, Khalil Lakhdar (Directive 77/187/EEC — Safeguarding of employees' rights in the event of transfers of undertakings)
Date: 2002-04-06
Institutions: Court of Justice
Subjects: Belgium, interpretation of the law, labour law, maintenance, redundancy, transfer of businesses

6.4.2002

EN

Official Journal of the European Communities

C 84/21

L 225, p. 1),the Court (Fifth Chamber), composed of: P. Jann
(Rapporteur), President of the Chamber, S. von Bahr, A. La
Pergola, L. Sevo´ n and C.W.A. Timmermans, Judges, Advocate
General: A. Tizzano, Registrar: H. von Holstein, Deputy
Registrar, has given a judgment on 15 January 2002, in which
it has ruled:

1. Article 2(c) and (i) of Council Directive 90/434/EEC of 23 July
1990 on the common system of taxation applicable to mergers,
divisions, transfers of assets and exchanges of shares concerning
companies of different Member States must be interpreted as
meaning that there is no transfer of assets within the meaning
of that directive where the terms of a transaction are such that
the proceeds of a significant loan contracted by the transferring
company remain with that company and the obligations arising
from the loan are transferred to the company receiving the
transfer. It is immaterial in this regard that the transferring
company retains a small number of shares in a third company.

2.

It is for the national court to determine whether a transfer of
assets involves an independent business within the meaning of
Article 2(i) of Directive 90/434, that is to say, an entity
capable of functioning by its own means, where the future cash-
flow requirements of the company receiving the transfer must be
satisfied by a credit facility from a financial institution which
in particular, that the shareholders of the company
insists,
receiving the transfer provide security in the form of shares
representing the capital of that company.

(1) OJ C 122 of 29.4.2000.

JUDGMENT OF THE COURT

(Sixth Chamber)

24 January 2002

in Case C-51/00 (Reference for a preliminary ruling
from the Cour du Travail de Bruxelles): Temco Service
Industries SA v Samir Imzilyen, Mimoune Belfarh, Abdes-
selam Afia-Aroussi, Khalil Lakhdar (1)

(Directive 77/187/EEC — Safeguarding of employees’ rights
in the event of transfers of undertakings)

(2002/C 84/33)

ruling in the proceedings pending before that court between
Temco Service Industries SA and Samir Imzilyen, Mimoune
Belfarh, Abdesselam Afia-Aroussi, Khalil Lakhdar, intervener:
General Maintenance Contractors SPRL (GMC), Buyle-Medros-
Vaes Associates SA (BMV), formerly Weisspunkt SA, on the
interpretation of Articles 1(1) and 3(1) 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 (OJ 1977 L 61, p. 26), the
Court (Sixth Chamber), composed of: F. Macken, President of
the Chamber, C. Gulmann,
(Rapporteur),
R. Schintgen and J.N. Cunha Rodrigues, Judges, Advocate
General: L.A. Geelhoed, Registrar: D. Louterman-Hubeau, Head
of Division, has given a judgment on 24 January 2002, in
which it has ruled:

J.-P. Puissochet

1. Article 1(1) 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 must
be interpreted as applying to a situation in which a contractor
which has entrusted the contract for cleaning its premises to a
first undertaking, which has that contract performed by a
subcontractor, terminates that contract and enters into a new
contract for the performance of the same work with a second
undertaking, where the transaction does not involve any transfer
of tangible or intangible assets between the first undertaking or
the subcontractor and the second undertaking, but the second
undertaking has taken on, under a collective labour agreement,
part of the staff of the subcontractor, provided that the staff
thus taken on are an essential part, in terms of their number
and their skills, of the staff assigned by the subcontractor to the
performance of the subcontract.

2. Article 3(1) of Directive 77/187 must be interpreted as
meaning that it does not preclude the contract or employment
relationship of a worker employed by the transferor on the date
of the transfer of the undertaking within the meaning of
Article 1(1) of that directive from continuing with the transferor
where that worker objects to the transfer of his employment
contract or employment relationship to the transferee.

(Language of the case: French)

(1) OJ C 122 of 29.4.2000.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-51/00: Reference to the Court under Article 234 EC
by the Cour du Travail de Bruxelles (Belgium) for a preliminary