WRITTEN QUESTION P-2200/02 by Richard Howitt (PSE) to the Commission. TUPE loophole exploited by the German mobile phone company T-Mobile in Borehamwood, UK.
Date: 2002-07-12
Institutions: European Parliament, Provisional data
Subjects: Germany, United Kingdom, application of EU law, interpretation of the law, labour law, pension scheme, telecommunications industry, transfer of businesses

5.12.2002

EN

Official Journal of the European Communities

C 301 E/265

Answer given by Mrs Diamantopoulou on behalf of the Commission

(27 August 2002)

Senior managers are within the scope of Council Directive 93/104/EC of 23 November 1993 concerning
certain aspects of the organisation of working time (1). According to Article 1(3) of this Directive, it applies
to ‘all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC,
without prejudice to Article 17 of this Directive, with the exception of air, rail, road, sea, inland waterway
and lake transport, sea fishing, other work at sea and the activities of doctors in training.’

It should be noted that the sectors and activities excluded from the scope of Directive 93/104/EC will be
brought within its scope as of 1 August 2003 (1 August 2004 for doctors in training), following the
adoption of Directive 2000/34/EC (2).

However, according to Article 17(1) of the Directive,
‘with due regard for the general principles of the
protection of the safety and health of workers, Member States may derogate from Articles 3, 4, 5, 6, 8 or
16 when, on account of the specific characteristics of the activity concerned, the duration of the working
time is not measured and/or predetermined or can be determined by the workers themselves, and
particularly in the case of: (a) managing executives or other persons with autonomous decision-taking
powers.’

This provision does not exclude senior managers from the scope of the Directive, but it allows Member
States the possibility of derogations with regard to some of the articles.

For derogations from the basic principles of the Directive, it must be interpreted restrictively. It cannot
therefore be taken to allow derogations from the above articles for senior managers in general, but only
for those whose working time, on account of the specific characteristics of the activity concerned, is not
measured and/or predetermined or can be determined by the workers themselves.

In light of the above, the Commission does not intend to propose amendments to Directive 93/104/EC to
extend its scope.

(1) OJ L 307, 13.12.1993.
(2) Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive
93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded
from that Directive, OJ L 195, 1.8.2000.

(2002/C 301 E/284)

WRITTEN QUESTION P-2200/02

by Richard Howitt (PSE) to the Commission

(12 July 2002)

Subject: TUPE loophole exploited by the German mobile phone company T-Mobile in Borehamwood, UK

Following the takeover of the British mobile phone company One 2 One by the German company
Deutsche Telekom, T-Mobile, the new name for One 2 One, has conducted an internal transfer of staff at
its UK Headquarters in Borehamwood. As a direct result, staff will see a major change in their pension
scheme and face the prospect of losing 40 % of their retirement income. T-Mobile argues that TUPE
(Transfer of Undertakings, Protection of Employment) does not come into play, since the transfer is
internal and not to a different entity. I should like to question the validity of the transfer under European
law in relation to the status of workers’ pension schemes. Does this not constitute a loophole in TUPE?

C 301 E/266

Official Journal of the European Communities

EN

5.12.2002

Answer given by Mrs Diamantopoulou on behalf of the Commission

(19 August 2002)

Council Directive 2001/23/EC of 12 March 2001 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 undertakings or businesses (1) applies, according to Article 1, paragraph 1, point a) thereof, to any
transfer of an undertaking, business, or part of an undertaking or business to another employer as a result
of a legal transfer or merger. The Court of Justice held, in case C-234/98 (2), that the Directive can apply to
a transfer between two companies in the same group.

The Directive applies where there is a transfer of an economic entity which retains its identity, meaning an
organised grouping of resources which has the objective of pursuing an economic activity, whether or not
that activity is central or ancillary. The Commission is not in a position to assess whether the Directive is
applicable in this case.

Finally, Article 3, paragraph 4 point a), states that, unless Member States provide otherwise,
the
safeguarding of employees’ rights, as defined in paragraph 1 and 3 of the same Article, does not apply in
relation to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary company or
inter-company pension schemes outside the statutory social security schemes in Member States (3).

As far as the Commission is aware, the Directive has been correctly transposed in the United Kingdom. In
the first instance, therefore, it is the responsibility of the national courts to resolve any issues arising from
or relating to incorrect implementation by the national authorities.

(1) OJ L 82, 22.3.2001.
(2) Case C-234/98, G. C. Allen and Others v. Amalgamated Construction Co. Ltd, ECR 1999, p. I-8643.
(3) Article 3, paragraph 1, lays down that the transferor’s rights and obligations arising from a contract of employment
or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be
transferred to the transferee. According to paragraph 3 of the same Article, the transferee shall continue to observe
the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under
the agreement.

(2002/C 301 E/285)

WRITTEN QUESTION P-2237/02

by Alexandros Alavanos (GUE/NGL) to the Commission

Subject: Implementation in Greece of Directive 1999/70/EC

(15 July 2002)

Council Directive 1999/70/EC (1) of 28 June 1999 concerning fixed-term work requires the Member States
to ‘bring into force the laws, regulations and administrative provisions necessary to comply with this
Directive by 10 July 2001’. The Greek Government obtained a one-year extension to this deadline without
establishing that
it did not consult
management and labour. Moreover, although the latest deadline has now expired, the Greek Government
has still not adopted the requisite laws, regulations and administrative provisions.

there were ‘special difficulties’ since, on its own responsibility,

Furthermore, according to a responsible Minister,
illegally, to
exempt from the directive employees under contract in the public sector, legal persons subject to public
law, local government bodies and some legal persons subject to private law, such as Olympic Airways.

it is the Greek Government’s intention,

Given that the Member State in question seems to have opted for a policy of obstruction and distortion of
the directive to the detriment of workers’ rights, will the Commission immediately initiate preliminary
proceedings against the Greek Government in the Court of Justice?

(1) OJ L 175, 10.7.1999, p. 43.