Judgment of the Court (Sixth Chamber) of 6 November 2003 in Case C-4/01 (Reference for a preliminary ruling from the Employment Tribunal at Croydon): Serene Martin, Rohit Daby, Brian Willis v South Bank University (Directive 77/187/EEC — Safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses — Early retirement and associated benefits)
Date: 2004-01-10
Institutions: Court of Justice
Subjects: interpretation of the law, labour law, pension scheme, severance pay, social-security contribution

10.1.2004

EN

Official Journal of the European Union

C 7/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

(Sixth Chamber)

of 6 November 2003

gues, Judges; S. Alber, Advocate General; L. Hewlett, Principal
Administrator, for the Registrar, has given a judgment on
6 November 2003, in which it has ruled:

in Case C-4/01 (Reference for a preliminary ruling from
the Employment Tribunal at Croydon): Serene Martin,
Rohit Daby, Brian Willis v South Bank University (1)

(Directive 77/187/EEC — Safeguarding of employees’ rights
in the event of transfers of undertakings, businesses or parts
of businesses — Early retirement and associated benefits)

(2004/C 7/01)

(Language of the case: English)

In Case C-4/01: Reference to the Court under Article 234 EC
by the Employment Tribunal, Croydon (United Kingdom) for
a preliminary ruling in the proceedings pending before that
court between Serene Martin, Rohit Daby, Brian Willis and
South Bank University, on the interpretation of Article 3 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: J.-
P. Puissochet
the Chamber,
(Rapporteur), President of
R. Schintgen, C. Gulmann, F. Macken and J.N. Cunha Rodri-

1.

2.

Rights contingent upon dismissal or the grant of early retirement
by agreement with the employer fall within the ‘rights and
obligations’ referred to in Article 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.

Early retirement benefits and benefits intended to enhance the
conditions of such retirement, paid in the event of early
retirement arising by agreement between the employer and the
employee to employees who have reached a certain age, such as
the benefits at issue in the main proceedings, are not old-age,
invalidity or survivors’ benefits under supplementary company
or inter-company pension schemes within the meaning of
Article 3(3) of Directive 77/187.

Article 3 of that directive is to be interpreted as meaning that
obligations arising upon the grant of such early retirement,
arising from a contract of employment, an employment
relationship or a collective agreement binding the transferor as
regards the employees concerned, are transferred to the transferee
subject to the conditions and limitations laid down by that
article, regardless of the fact that those obligations derive from
statutory instruments or are implemented by such instruments
and regardless of the practical arrangements adopted for such
implementation.

C 7/2

EN

Official Journal of the European Union

10.1.2004

3. Article 3 of Directive 77/187 precludes the transferee from
offering the employees of a transferred entity terms less
favourable than those offered to them by the transferor in
respect of early retirement, and those employees from accepting
those terms, where those terms are merely brought into line
with the terms offered to the transferee’s other employees at the
time of the transfer, unless the more favourable terms previously
offered by the transferor arose from a collective agreement which
is no longer legally binding on the employees of the entity
in
transferred, having regard to the
Article 3(2).

conditions

set out

4. Where, in breach of the public policy obligations imposed by
Article 3 of Directive 77/187, the transferee offered employees
of the entity transferred early retirement less favourable than
that
to which they were entitled under their employment
relationship with the transferor and those employees accepted
such early retirement, it is for the transferee to ensure that those
employees are accorded early retirement on the terms to which
they were entitled under their employment relationship with the
transferor.

(1) OJ C 61 of 24.2.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 20 November 2003

in Case C-008/01 (Reference for a preliminary ruling from
the Østre Landsret): Assurandør-Societetet, acting on
behalf of Taksatorringen, v Skatteministeriet (1)

(Sixth VAT Directive — Article 13A(1)(f) and 13B(a) —
Exemption for services performed by independent groups not
likely to give rise to distortions of competition — Exemption
for insurance transactions and related services performed by
insurance brokers and insurance agents — Assessments of
damage caused to motor vehicles carried out by an association
on behalf of insurance companies which are members of that
association)

(2004/C 7/02)

(Language of the case: Danish)

proceedings pending before that court between Assurandør-
Societetet, acting on behalf of Taksatorringen, and Skatteminis-
teriet, on the interpretation of Article 13A(1)(f) and 13B(a) of
Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977 L 145, p. 1), the Court (Fifth
Chamber), composed of: P. Jann, acting for the President of
the Fifth Chamber, A. La Pergola and S. von Bahr (Rapporteur),
J. Mischo, Advocate General; H.A. Rühl, Principal
Judges;
Administrator, for the Registrar, has given a judgment on
20 November 2003, in which it has ruled:

1. Article 13B(a) of Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value
added tax: uniform basis of assessment must be construed as
meaning that motor vehicle damage assessments carried out, on
behalf of its members, by an association whose members are
insurance companies are neither insurance transactions nor
services related to insurance transactions that are performed by
insurance brokers or insurance agents within the meaning of
that provision.

2. Article 13A(1)(f) of Sixth Council Directive 77/388 must be
construed as meaning that the grant of exemption from value
added tax under that provision to an association such as that
in issue in the main proceedings and which satisfies all of the
other conditions of that provision must be refused if there is a
genuine risk that the exemption may by itself, immediately or
in the future, give rise to distortions of competition.

3. National legislation which allows a temporary exemption to be
granted where doubt exists as to whether that exemption, such
as that in the case in the main proceedings, is liable at a later
date to give rise to distortions of competition is compatible with
Article 13A(1)(f) of Sixth Directive 77/388, provided that the
exemption is renewed only for as long as the person concerned
satisfies the conditions of that provision.

4.

The fact that large insurance companies have the assessments
of damage to motor vehicles carried out by their own experts,
thereby avoiding liability for value added tax in respect of the
provision of such services, is not such as to have any bearing on
the answers to be given to the first three questions.

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

(1) OJ C 61 of 24.2.2001.

In Case C-8/01: Reference to the Court under Article 234 EC
by the Østre Landsret (Denmark) for a preliminary ruling in the