Judgment of the Court (Third Chamber) of  15 December 2005  in Joined Cases C-232/04 and C-233/04, Reference for a preliminary ruling from the Arbeitsgericht Düsseldorf Nurten Güney-Görres, Gul Demir v Securicor Aviation (Germany) Ltd, Kötter Aviation Security GmbH & Co. KG (Directive 2001/23/CE — Article 1 — Transfer of undertaking or business — Safeguarding of employees' rights — Scope)
Date: 2006-02-25
Institutions: Court of Justice
Subjects: air transport, award of contract, branch of activity, financial management, intermediate goods, interpretation of the law, transfer of businesses

C 48/6

EN

Official Journal of the European Union

25.2.2006

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Second Chamber)

of 10 January 2006

in Case C-222/04: Reference for a preliminary ruling from
the Corte suprema di cassazione in Ministero dell'Eco-
nomia e delle Finanze v Cassa di Risparmio di Firenze
SpA, Fondazione Cassa di Risparmio di San Miniato, Cassa
di Risparmio di San Miniato SpA (1)

(State aid — Articles 87 EC and 88 EC — Banks — Banking
foundations — Meaning of ‘undertaking’ — Relief from
direct tax on dividends received by banking foundations —
Categorisation as State aid — Compatibility with the
common market — Commission Decision 2003/146/EC —
Determination of validity — Inadmissibility — Articles 12
EC, 43 EC and 56 EC — Principle of non-discrimination —
Freedom of establishment — Free movement of capital)

(Third Chamber)

of 15 December 2005

in Joined Cases C-232/04 and C-233/04, Reference for a
preliminary ruling from the Arbeitsgericht Düsseldorf
Nurten Güney-Görres, Gul Demir v Securicor Aviation
(Germany) Ltd, Kötter Aviation Security GmbH & Co.
KG (1)

(Directive 2001/23/CE — Article 1 — Transfer of under-
taking or business — Safeguarding of employees' rights —
Scope)

(2006/C 48/11)

(2006/C 48/12)

(Language of the case: Italian)

(Language of the case: German)

In Case C-222/04: reference for a preliminary ruling under
Article 234 EC from the Corte suprema di cassazione (Italy),
made by decision of 23 March 2004, received at the Court on
28 May 2004, in the proceedings between Ministero dell'Eco-
nomia e delle Finanze and Cassa di Risparmio di Firenze SpA,
Fondazione Cassa di Risparmio di San Miniato, Cassa di
Risparmio di San Miniato SpA — the Court (Second Chamber),
composed of C.W.A. Timmermans, President of the Chamber,
C. Gulmann (Rapporteur), R. Schintgen, R. Silva de Lapuerta
and G. Arestis,
Jacobs, Advocate General; M.
Ferreira, Principal Administrator, for the Registrar, gave a judg-
ment on 10 January 2006, in which it ruled:

Judges; F.G.

1. A legal person such as that in question in the main proceedings
can, after an examination which it is for the national court to
the regime applicable to the period
conduct, on account of
concerned, be treated as an ‘undertaking’ within the meaning of
Article 87(1) EC, and, as such, subject at that period to the Com-
munity rules relating to State aid.

2. An exemption from retention on dividends such as that in ques-
tion in the main proceedings can, after an examination which it is
for the national court to conduct, be categorised as State aid
within the meaning of Article 87(1) EC.

In Joined Cases C-232/04 and C-233/04: reference for a preli-
minary ruling under Article 234 EC from the Arbeitsgericht
(Germany), made by decision of 5 May 2004,
Düsseldorf
received at the Court on 3 June 2004,
in the proceedings
between Nurten Güney-Görres (C-232/04), Gul Demir (C-233/
04) and Securicor Aviation (Germany) Ltd, Kötter Aviation
Security GmbH & Co. KG — the Court
(Third Chamber),
composed of A. Rosas, President of the Chamber, J.-P. Puisso-
chet, S. von Bahr, A. Borg Barthet
(Rapporteur) and U.
Judges; M. Poiares Maduro, Advocate General; K.
Lõhmus,
Sztranc, Administrator, for the Registrar, gave a judgment on
15 December 2005, the operative part of which is as follows:

Article 1 of 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 undertak-
ings, businesses or parts of undertakings or businesses, must be inter-
preted as meaning that in examining whether there is a transfer of an
undertaking or business within the meaning of that article,
in the
context of a fresh award of a contract and having regard to all the
facts, the transfer of the assets for independent commercial use is not
an essential criterion for a finding that there was a transfer of those
assets from the original contractor to the new contractor.

(1) OJ C 190 of 24.07.2004.

(1) OJ C 228 of 11.09.2004.
OJ C 201 of 07.08.2004.