Judgment of the Court of  10 December 2004  in Case E-2/04 Reidar Rasmussen, Jan Rossavik, and Johan Käldman, and Total E&P Norge AS, v/styrets formann (chairman of the board)  (Transfer of undertakings — Council Directive 77/187/EEC — time of transfer — objection to transfer of employment relationship)
Date: 2004-12-10
Institutions: EFTA Court
Subjects: EFTA Court, European Economic Area, interpretation of the law, labour law, ruling, transfer of businesses

23.2.2006

EN

Official Journal of the European Union

C 45/11

JUDGMENT OF THE COURT

of 10 December 2004

in Case E-2/04 Reidar Rasmussen, Jan Rossavik, and Johan Käldman, and Total E&P Norge AS, v/
styrets formann (chairman of the board)

(Transfer of undertakings — Council Directive 77/187/EEC — time of transfer — objection to transfer of employ-
ment relationship)

(2006/C 45/07)

In Case E-2/04 between Reidar Rasmussen, Jan Rossavik, and Johan Käldman, and Total E&P Norge AS, v/
styrets formann (chairman of the board) — REQUEST to the Court by Gulating lagmannsrett (Gulating
Court of Appeal), on the interpretation of Article 1 and Article 3(1) of Council Directive 77/187/EEC of 14
February 1977, the Court, composed of Carl Baudenbacher, President, Per Tresselt and Thorgeir Örlygsson
(Judge-Rapporteur),
Judges, gave judgment on 10 December 2004, the operative part of which is as
follows:

1. An entity within the meaning of Article 1(1)(b) of 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 part of businesses as amended by Directive 98/50/EC
and incorporated into the EEA Agreement may retain its identity in a situation where part of an under-
taking is transferred from one company to another that carries out the same or corresponding activities
together with another affiliated company within the same group of companies, and where each
company takes over some of the employees in question.

2. The application of the Directive, pursuant to Article 1, is not precluded when the maintenance and
support functions of an undertaking are transferred while the production function is not, and the
employees of all these functions work as a team both before and after the transfer.

3. The Directive may, pursuant to Article 1, be applicable in the situation of a transfer of maintenance
tasks on a fixed offshore installation for gas production where a considerable part of the workforce, in
terms of numbers and qualifications, that performed the transferred function is taken over by a
company that continues to carry out these tasks on the same installation. The application of the Direc-
tive is not precluded by the mere fact that the ownership of the tools and instruments, which the main-
tenance staff used before the transaction in question, and which they have continued to use afterwards,
is not taken over by the company in question.

4. Article 3(1) of the Directive is to be interpreted to the effect that employment relationships are trans-
ferred to the transferee simultaneously with and by virtue of the transfer of the undertaking for those
employees who have not, prior to the time of transfer, declared that they do not wish to work for the
transferee.