Commission Report on 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 [SEC(2007) 812]
Date: 2007-06-18
Institutions: European Commission
Subjects: approximation of laws, labour law, transfer of businesses, worker consultation, worker information

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.6.2007 
COM(2007) 334 final 

COMMISSION REPORT 

on 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 

[SEC(2007) 812] 

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COMMISSION REPORT 

on 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. 

INTRODUCTION  

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 businesses1 codifies 
Council  Directive  77/187/EEC2,  as  amended  by  Council  Directive  98/50/EC3. 
Article 7b)  of  Directive  98/50/EC  states:  "The  Commission  shall  submit  to  the 
Council an analysis of the effects of the provisions of this Directive before 17 July 
2006. It shall propose any amendment which may seem necessary." That Article was 
incorporated  into  Directive  2001/23/EC  as  Article  10.  The  object  of  this  report  is 
therefore  to  examine  the  provisions  of  the  Directive  in  the  light  of  the  experience 
which has been acquired and, in particular, of the case-law of the Court, taking into 
account the answers of the Member States and the social partners to the questionnaire 
which was sent to them by the Commission (cf. Annex I) with a view to proposing 
possible changes. A detailed report on the implementation of the Directive in each of 
the 25 Member States will be prepared by the Commission departments in 2007.  

The Directive, which is based on Article 94 of the EC Treaty, is aimed at protecting a 
business' employees in the event of a change of employer and, in particular, ensuring 
that  the  employees'  rights  are  safeguarded.  It  works  on  the  premise  that  there  are 
differences in the Member States regarding the protection of employees in this area 
and stresses the impact that these differences can have on the operation of the single 
market.  Consequently,  it  concludes  that  it  would  be  advisable  to  harmonise  that 
protection. The aim of harmonisation is twofold: to ensure comparable protection of 
employees' rights in the Member States and to approximate the obligations which the 
rules of protection place on European undertakings. 

The Court of Justice has indicated on several occasions that the rules of the Directive 
are to be regarded as mandatory, in that it is not permitted to derogate from them in a 
manner which is detrimental to employees. Consequently, an employee cannot waive 
his rights under the Directive, and those rights cannot be limited, not even with the 
employee's  agreement,  nor  if  the  disadvantages  resulting  from  renunciation  are 
compensated for in such a way that the employee is not placed in a less favourable 
overall situation.  

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3 

OJ L 82, 22.3.2001, p. 16.  
OJ L 61, 05.3.77, p. 26. This Directive is one of the measures provided for in the EEC's Social Action 
Programme of 21 January 1974.  
OJ L 201, 17.7.1998, p. 88.  

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As of 31 August 2006, the Directive had formed the basis for 44 judgements of the 
Court  of  Justice,  40  of  which  concerned  preliminary  questions.  30  of  these 
judgements  concern  the  scope  of  the  Directive  and,  in  particular,  the  concept  of 
"transfer". Directive 98/50/EC, referred to above, refines this concept in the light of 
the considerable volume of Court of Justice case-law. This would appear to explain 
why  there  has  been  only  one  judgement  in this  connection  for  transfers  carried  out 
after 17 July 2001 (the deadline for transposition of the Directive).  

2. 

SCOPE (ARTICLES 1 AND 2)  

2.1. 

Personal scope 

2.1.1.  The entities concerned  

The  Directive  applies  to  transfers  of  undertakings,  businesses,  or  parts  of 
undertakings  or  businesses.  These  can  be  grouped  together  under  the  more  general 
heading "economic entity", which, for the purposes of the Directive, is understood to 
mean  an  organised  grouping  of  resources  which  has  the  objective  of  pursuing  an 
economic activity. 

In  terms  of  the  activity,  the  essential  feature  which  characterises  an  entity  as  an 
undertaking or business is the pursuance of an economic activity, in other words, the 
fact that it provides goods or services on the market. Activities involving the exercise 
of public authority do not fall within the scope of the Directive.  

Transfers  involving  seagoing  vessels  are  explicitly  excluded  from  the  Directive. 
Nevertheless,  national  provisions  transposing  the  Directive  also  apply  to  seagoing 
vessels in 12 Member States (cf. Annex I, question 1.5).  

2.1.2.  Protected employees  

The  term  "employee"  refers  to  any  person  who,  in  the  Member  State  concerned,  is 
protected as an employee under national employment legislation. All employees are 
protected,  including  those  employed  under  a  fixed-term  contract,  and  part-time 
employees.  

2.2.  Material scope  

For a transfer to be deemed to exist, two conditions must be met: a) there must be a 
change of employer and b) the transferred entity must retain its identity.  

2.2.1.  Change of employer  

There  must  be  a  change,  in  terms  of  contractual  relations,  in  the  legal  or  natural 
person who is responsible for the performance of the activity and who assumes the 
obligations of an employer with respect to the employees of the entity.  

The transfer of ownership of the majority of the shares in an undertaking or a change 
in  the  majority  of  shareholders  does  not  constitute  a  transfer  because  the  legal 
personality of the employer is unchanged. The Commission considers that a revision 
of the Directive, extending the definition of "transfer" to include a change of control, 

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as proposed by the European Confederation of Trade Unions (cf. Annex I, question 
4), is not justified at this stage. Although a change of control can lead to changes in 
the  undertaking,  the  employees'  legal  position  vis-à-vis  the  employer  is  unchanged. 
In  any  case,  Directive  2002/14/EC4  makes  such  changes  subject  to  appropriate 
information and consultation procedures.  

2.2.2.  Retention of identity  

Retention of identity is marked both by the continuation by the new employer of the 
same activities and by the continuity of its workforce, its management staff, the way 
in  which  its  work  is  organized,  its  operating  methods  or  the  operational  resources 
available  to  it.  It  is  up  to  the  national  courts  to  judge,  in  the  light  of  the  following 
criteria, whether or not there has been a transfer: 

–  the type of undertaking or business;  

–  transfer or otherwise of tangible assets, such as buildings or movable property;  

–  the value of intangible assets at the time of the transfer;  

–  employment of the majority of employees by the new employer;  

–  transfer or otherwise of customers;  

–  degree  of  similarity  between  the  activities  carried  out  prior  to  and  after  the 

transfer;  

–  where appropriate, the period during which activities were suspended.  

These  are,  however,  merely  single  factors  in  the  overall  assessment  which  must  be 
made and cannot therefore be considered in isolation. 

The  Irish  authorities  have  proposed  revising  the  definition  of  "transfer"  in  order  to 
clarify how the Directive should be applied to cases where activities are outsourced, 
i.e. where an undertaking outsources a function or service to another undertaking. 

The  Commission  is  of  the  opinion  that  the  definition  of  "transfer"  contained  in  the 
Directive,  as interpreted by  the Court of  Justice, is sufficiently broad to achieve its 
aim  of  protecting  employees  in  the  event  of  a  change  of  employer  in  the  very 
different situations which are likely to exist in 25 Member States. Consequently, the 
Commission considers that a revision of this concept is not justified at present.  

2.3. 

Territorial scope  

The Directive applies "where and in so far as the undertaking, business or part of the 
undertaking or business to be transferred is situated within the territorial scope of the 
Treaty"  (Article  1(2))  and  in  the  Member  States  of  the  European  Economic  Area 

4 

Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a 
general  framework  for  informing  and  consulting  employees  in  the  European  Community,  OJ  L  80, 
23.3.2002, p. 29.  

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(Norway, Iceland and Liechtenstein) (Article 68 of the Agreement on the European 
Economic Area5).  

The  Commission  and  some  Member  States  (cf.  Annex  I,  questions  1.1-1.4)  have 
noted that national measures transposing the Directive on cross-border transfers can 
give rise to problems for which the Directive does not provide a solution. Contrary to 
the Commission proposal of 1974, the Directive does not contain provisions relating 
to conflicts of law. However, some of its provisions refer specifically to national law: 
for  example,  the  concept  of  "employee"  (Article 2(1)(d)),  or  the  definition  of 
"employment contract" (Article 2(2)). Similarly, the Court of Justice has referred to 
the legislation of the Member States in ruling on certain aspects of business transfers. 
Lastly,  the  Directive  leaves  a  number  of  options  open  to  the  Member  States. 
Although private international law, particularly the Rome Convention,6 offers some 
solutions with regard to individual employment relationships in the event of a cross-
border  transfer,  the  collective  aspects  of  these  transfers  (collective  agreements, 
protection  of  employees'  representatives,  obligations  regarding  information  and 
consultation) are not regulated. Consequently, the Commission considers that cross-
border transfers could be given specific attention in the Directive.  

3. 

SAFEGUARDING OF EMPLOYEES' RIGHTS (ARTICLES 3-5)  

3.1. 

Transfer of rights and obligations to the transferee  

The rights and obligations arising for the transferor from an employment contract or 
employment  relationship  existing  on  the  date  of  the  transfer  are,  by  reason  of  such 
transfer, transferred to the transferee.  

The transfer of these rights and obligations takes place automatically, by virtue of the 
transfer  of  the  undertaking,  and  cannot  be  made  contingent  on  the  intention  of  the 
transferor  or  transferee,  nor  on  the  agreement  of  the  employees,  without  prejudice, 
however,  to  the  employee's  right  not  to  continue  his  employment  relationship  with 
the transferee.  

The transfer covers all the employees' rights referred to in Article 3(1) which are not 
covered by the limitations provided for in Article 3(4) (cf. section 3.4 below).  

3.2. 

Possible joint liability of the transferor and transferee  

In theory, the transferor is released from his obligations as an employer by the mere 
fact of the transfer, without this legal effect requiring the agreement of the employees 
concerned. Member States may, however, provide that, after the date of the transfer, 
the  transferor  continues  to  be  jointly  liable  with  the  transferee  in  respect  of 
obligations arising from an employment contract or employment relationship existing 
on  the  date  of  the  transfer.  14  Member  States  have  made  provision  for  the  joint 
liability of the transferor and transferee (cf. Annex I, question 2.1). 

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6 

OJ L 1 of 3.1. 1994, p. 3.  
Rome  Convention  of  1980  on  the  law  applicable  to  contractual  obligations  (consolidated  version), 
OJ C 27 of 26.1.1998, p. 34-46.  

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3.3. 

Applicable collective agreement  

Article 3(3) of the Directive requires the transferee to continue to observe the terms 
and  conditions  agreed  in  any  collective  agreement  on  the  same  terms  applicable  to 
the  transferor  under  that  agreement,  until  the  date  of  termination  or  expiry  of  the 
collective  agreement  or  the  entry  into  force  or  application  of  another  collective 
agreement.  Member  States  may  limit  the  period  for  observing  such  terms  and 
conditions  with  the  proviso  that  it  shall  not  be  less  than  one  year.  In  any  case,  the 
latter  limitation  comes  into  play  only  if  none  of  the  situations  referred  to  above 
occurs within a year of the transfer. Ten Member States have made use of the option 
of limiting this period (cf. Annex I, question 2.2).  

The transferee is bound only by the collective agreement in force on the date of the 
transfer;  the  Directive  does  not  safeguard  benefits  which  might  arise  from  future 
developments in collective agreements.  

At this stage, the Commission does not see the need for clarification of the Directive 
as proposed by the authorities of the Slovak Republic to take account of situations in 
which the transfer would lead to the application of several collective agreements. In 
these  situations,  the  conclusion  of  a  new  collective  agreement,  as  permitted  by 
Article 3(3), should lead to the standardisation of working conditions.  

3.4. 

Non-application  of  the  Directive  to  benefits  other  than  those  awarded  under 
statutory social security schemes 

Unless Member States provide differently, the transfer does not apply to employees' 
rights  to  old  age,  disability  or  survivors'  benefits  under  supplementary  company  or 
inter-company  pension  schemes  outside  the  statutory  social  security  schemes  in 
Member  States.  Consequently,  the  transferor's  obligations  which  are  based  on  non-
statutory  schemes  are  not  transferred.  In  13  Member  States,  these  rights  are 
transferred  just  as  any  other  right,  either  because  they  are  specifically  included,  or 
because they are not specifically excluded. The Commission notes, however, that in 
some  Member  States,  the  fact  of  not  being  specifically  included  is  interpreted  as 
exclusion (cf. Annex I, question 2.3).  

It  should  be  noted  at  this  juncture  that  on  20  October  2005,  the  Commission 
presented a proposal for a Directive of the European Parliament and of the Council 
on improving the portability of supplementary pension rights7. This proposal is now 
the subject of inter-institutional discussions.  

3.5. 

Changes in terms and conditions of employment 

Since  the  transferee  takes  the  place  of  the  transferor  with  regard  to  the  rights  and 
obligations arising from the employment relationship, the Directive does not prevent 
the  transferee  from  amending  the  employment  relationship  insofar  as  applicable 
national law admits such amendment in cases other than transfers of undertakings. 

If  the  employment  contract  or  employment  relationship  is  terminated  because  the 
transfer,  within  the  meaning  of  the  Directive,  involves  a  substantial  change  in  the 

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COM (2005) 507 final  

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terms  and  conditions  of  employment  to  the  detriment  of  the  employee,  this 
termination is regarded as having been brought about by the employer. It is up to the 
national  courts  to  determine  if  the  employment  contract  proposed  by  the  transferee 
involves  a  substantial  change  in  the  terms  and  conditions  to  the  detriment  of  the 
employee.  

The Commission does not consider it appropriate at this stage to accept the proposal 
put forward by the United Kingdom to introduce the possibility for the employer to 
amend  the  employment  contract,  in  agreement  with  the  employee,  in  order  to 
harmonise the terms and conditions of employment of existing employees and those 
who have been transferred, on condition that those changes, taken overall, are not to 
the detriment of the transferred employees. The Commission feels that harmonisation 
can  be  achieved  via  collective  agreements  which,  because  of  the  input  of  the 
employees' representatives, provide adequate guarantees for transferred employees.  

3.6. 

Protection against dismissal 

The transfer of an undertaking or business or part of an undertaking or business does 
not in  itself constitute  grounds  for dismissal by the transferor or the transferee, but 
this  provision  does  not  stand  in  the  way  of  dismissals  for  economic,  technical  or 
organisational  reasons  entailing  changes  in  the  workforce.  Consequently,  the 
Directive is restricted to prohibiting dismissals purely as a result of the transfer.  

The scope of the Directive with regard to dismissals can be restricted by the right of 
the  Member  States  not  to  extend  the  protection  provided  to  "certain  specific 
categories of employees who are not covered by the laws or practice of the Member 
States in respect of protection against dismissal". Only four Member States make use 
of this possibility (cf. Annex I, question 2.4)  

Employees unlawfully dismissed by the transferor shortly before the transfer of the 
undertaking  and  not  re-employed  by  the  transferee  may  claim,  as  against  the 
transferee, that their dismissal was unlawful.  

3.7. 

An  employee's  right  not  to  continue  his  employment  relationship  with  the 
transferee  

The  purpose  of  the  Directive  is  to  safeguard  employees'  rights  in  the  event  of  a 
change  of  employer  by  giving  them  the  opportunity  of  continuing  to  work  for  the 
transferee under the same conditions as those agreed with the transferor. Its purpose 
is  not,  however,  to  guarantee  the  continuation  of  the  contract  with  the  transferor  if 
the  employee  does  not  wish  to  work  for  the  transferee.  On  the  assumption  that  the 
employee  decides  of  his  own  free  will  not  to  maintain  the  contract  or  employment 
relationship with the transferee, it is up to the Member States to determine the status 
of  that  contract  or  relationship.  In  such  cases,  they  may,  in  particular,  decide  that 
termination  of  the  contract  or  employment  relationship  is  attributable  to  the 
employee or the employer. They may also stipulate that the employment contract or 
employment relationship must be maintained with the transferor.  

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3.8. 

Transfers carried out as part of bankruptcy proceedings 

In  order  to  guarantee  the  survival  of  insolvent  undertakings,  Article  5  of  the 
Directive gives the Member States a degree of flexibility.  

In principle, Articles 3 and 4 of the Directive do not apply to bankruptcy proceedings 
initiated with a view to liquidation of the transferor's assets under the supervision of 
a  competent  public  authority.  When  these  two  Articles  apply  to  bankruptcy 
proceedings  under  the  supervision  of  a  competent  public  authority,  however, 
Member  States  may,  pursuant  to  Article  5(2),  provide  that:  a)  certain  of  the 
transferor's debts are not transferred to the transferee under the conditions set out in 
that  Article;  and/or  b)  that  the  employee's  terms  and  conditions  of  employment  are 
altered, under certain conditions.  

11  Member  States  have  national  provisions  which  apply  Articles  3  and  4  of  the 
Directive  to  transfers  in  which  the  transferor  is  the  subject  of  bankruptcy 
proceedings.  Six  Member  States  have  made  use  of  the  possibilities  offered  by 
Article 5(2) (cf. Annex I, questions 2.6 and 2.7). As regards the practical effects of 
these provisions, the Member States do not possess any data on how many additional 
undertakings  have  been  saved  from  bankruptcy  by  the  application  of  these 
derogations (cf. Annex I, question 2.8).  

3.9. 

Transfer by a transferor in a situation of serious economic crisis 

Italy  is  the  only  Member  State  whose  national  legislation  (as  of  17 July  1998) 
contains  a  definition  of  a  "situation  of  serious  economic  crisis"  which  satisfies  the 
conditions of Article 5(3), and which could therefore legitimately permit alterations 
to the terms and conditions of employment pursuant to Article 5(2)(b). However, the 
Commission considers that Italian legislation goes well beyond simple alteration of 
the terms and conditions of employment, since it excludes employees of enterprises 
which  are  in  crisis  from  the  benefits  of  Articles 3  and  4  of  the  Directive.  In  these 
circumstances, the Commission decided to allow Italy to present its comments on the 
matter  pursuant  to  Article  226  of  the  EC  Treaty  (infringement  no. 2005/2433). 
Consequently, a report on the effects of this provision as provided for in the second 
subparagraph of Article 5(3) is not applicable. 

4. 

PROTECTION  OF  THE  FUNCTIONS  OF  THE  REPRESENTATIVES  OF  EMPLOYEES 
(ARTICLE 6)  

Article  6  of  the  Directive  seeks  to  guarantee  the  continuity  of  the  representation 
function  and  the  protection  of  the  persons  concerned.  As  regards  continuity  of  the 
representation  function,  it  must  be  borne  in  mind  that  if  the  transferred  business 
preserves its autonomy, in other words, it continues to exist as a distinct operational 
unit and is not absorbed by a more complex structure, then the status and function of 
the representatives or of the representation of the employees affected by the transfer, 
as  established  by  the  national  legislation  of  the  Member  States,  must  be  preserved. 
However,  this  provision  does  not  apply  if,  pursuant  to  national  legislation,  the 
conditions for the re-appointment of the employees' representatives are fulfilled.  

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Employees'  representatives  who  are  affected  by  a  transfer  and  whose  mandate 
expires as a result of that transfer "shall continue to enjoy the protection provided by 
the laws, regulations, administrative provisions or practice of the Member States".  

5. 

INFORMATION AND CONSULTATION (ARTICLE 7)  

The transferor and the transferee are required to provide certain items of information 
to the representatives of their respective employees. Whereas the obligation to report 
is  general,  the  obligation  concerning  consultation  is  limited.  The  latter  obligation 
exists where the transferor or the transferee envisages any measures in relation to the 
employees (for example, a reduction in the workforce). The consultation takes place 
"with a view to reaching an agreement".  

Member  States  are  required  to  take  all  appropriate  measures  to  ensure  that  the 
representatives of employees are appointed with a view to ensuring the information 
and  consultation  referred  to  in  Article  7.  The  Directive  gives  the  Member  States 
considerable  latitude  when  defining  the  procedures  for  nominating  employees' 
representatives.  

The  information  and  consultation  obligations  apply  irrespective  of  whether  the 
decision  resulting  in  the  transfer  is  taken  by  the  employer  or  an  undertaking 
controlling the employer. 

Member  States  may  limit  the  above-mentioned  obligations  to  undertakings  or 
businesses which, in terms of the number of employees, meet the conditions for the 
election or nomination of a collegiate body representing the employees. Six Member 
States make use of this option (cf. Annex I, question 3.2).  

In  any  case,  in  the  absence  of  employees'  representatives  in  an  undertaking  or 
business, the employees concerned must be informed in advance. 

The French authorities believe that, notwithstanding the information which must be 
given to the employees' representatives, employees should be informed individually 
by the transferee about the various rights which become applicable after the transfer. 
The Commission, however, takes the view that the existing information obligations 
are sufficient to help employees to safeguard their rights, without imposing excessive 
burdens on employers. The Member States are, however, free, where they consider it 
appropriate, to extend these obligations at national level pursuant to Article 8 of the 
Directive.  Consequently,  the  Commission  considers  that  a  revision  of  the  Directive 
on this point is not justified at this stage.  

6. 

CONCLUSION  

Nearly  30  years  after  its  adoption,  the  Commission  believes  that  Directive 
77/187/EEC  continues  to  play  a  key  role  in  protecting  employees'  rights.  This  text 
introduced the principle of the retention of employment contracts despite a change in 
the  legal  personality  of  the  employer  into  the  legal  orders  of  many  Member  States 
which  did  not  previously  recognise  that  principle.  The  1998  revision  also  made  it 
possible,  on  the  one  hand,  to  refine  the  concept  of  "transfer"  in  the  light  of  the 
considerable  volume  of  Court  of  Justice  case  law  and,  on  the  other,  to  allow  the 

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Member  States  a  degree  of  flexibility  when  implementing  certain  provisions, 
particularly in cases where the transferor is bankrupt. 

By  achieving  the  correct  balance  between  the  protection  of  employees  and  the 
freedom to pursue an economic activity, the Directive has made a major contribution 
to  ensuring  that  numerous  restructuring  operations  in  Europe  are  socially  more 
acceptable. 

The Commission believes, however, that the absence of explicit treatment of cross-
border transfers in the Directive, which nevertheless applies to transfers in which the 
undertaking  being  transferred  falls  within  the  territorial  scope  of  the  Treaty,  can 
cause  uncertainty  on  the  part  of  employers  and  employees.  Furthermore,  the 
Commission  believes  that  the  enlargement  of  the  EU  and  the  consolidation  of  the 
internal  market,  globalisation  and  the  facilitation  of  cross-border  activities  by  the 
Regulations on the European Company8 and on the European Cooperative Society,9 
or  by  the  Directive  on  cross-border  mergers,10  are  factors  liable  to  increase  the 
phenomenon of cross-border transfers. Consequently, the Commission believes that 
the  Directive  could  be  amended  with  a  view  to  clarifying  this  point,  thereby 
contributing to the improvement of the acquis communautaire. To this end, it intends 
to consult the social partners pursuant to Article 138(2) of the Treaty.  

8 

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10 

Council  Regulation  (EC)  No.  2157/2001  of  8  October  2001  on  the  Statute  for  a  European  Company 
(SE) (OJ L 294, 10.11.2001, p. 1)  
Council  Regulation  (EC)  No.  1435/2003  of  22  July  2003  on  the  Statute  for  a  European  Cooperative 
Society (SCE) (OJ L 207, 18.8.2003, p. 1)  
Directive  2005/56/EC  of  the  European  Parliament  and  of  the  Council  of  26  October  2005  on  cross-
border mergers of limited liability companies (OJ L 310, 25.11.2005, p.1)  

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Technical annex 

Overview of the replies to the questionnaire on 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 

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Questions  1.1 
and 1.2 

Belgium 

Czech 
Republic 

Denmark 
Germany 
Estonia 
Greece 

Spain 

France 
Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 

Hungary 

Malta 
Netherlands 
Austria 
Poland 
Portugal 

Slovenia 

Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Iceland 

Liechtenstein 

Norway 

Do  the  national  measures  adopted  in  your  country  to  implement  the  Directive 
apply to transfers of undertakings from your country to another Member State or 
to  another  country  of  the  EEA  (Article  1(2))?  /  to  countries  outside  the  EEA 
(Article 1(2))? 
They apply to any employer subject to the 1968 Law on Collective Agreements. 
In  the  case  of  cross-border  transfers  only  the  party  located  in  Belgium  will  be 
subject to Belgian law. 
They apply to all labour law relationships subject to the Labour Code. Changes of 
place of work in connection with transfers involve termination of the employment 
relationship for organisational reasons with three months' notice and entitlement to 
severance pay. 
Yes, if the conditions are met for the employees concerned. 
Yes, provided German law is applicable under private international law. 
Yes, provided the employment contract is concluded under Estonian law. 
The business to be transferred must be situated within the EU. 
Yes. The starting point is the Rome Convention. The applicable law will depend 
on the time of transfer: before or after the change of place of work. 
In principle yes, but account should be taken of possible mobility clauses. 
Yes. They are not specifically excluded. 
Yes, to the countries where the Rome Convention applies. 
Yes, no special exclusion. 
Yes. 
Yes. 
Yes, they apply to undertakings located in Luxembourg. 
Yes.  Hungary's  provisions  apply  to  all  employment  relationships on  the  basis  of 
which  work  is  performed  in  Hungary  and  also  to  work  performed  temporarily 
abroad. 
Yes, they apply to undertakings situated in the EEA. 
Yes, there is no special exclusion. 
Yes, but not outside Austria. Territoriality principle. 
No specific provisions. Need to use international private law. 
Yes, by virtue of the Rome Convention. 
Yes.  Labour  law  applies  to  employment  relationships  between  employers  that 
have  their  registered  office  or  residence  in  Slovenia  and  workers  employed  by 
them. It also applies to employment relationships between foreign employers and 
workers that are based on an employment contract in Slovenia. 

Yes, no special exclusion. 

No specific provision. 
Not explicitly addressed. It would be for the ECJ to rule. 

Yes, to transfers of businesses situated in the UK immediately before the transfer. 

They Act apply to all countries of the EEA, to the Faeroe Islands and to member 
states of the Convention establishing the European Free Trade Association. 
They  do  not  make  a  difference  between  transfers  of  undertakings  from 
Liechtenstein to another EEA Member State or to countries outside the EEA. 
For cross-border transfers § 1173a Art. 43 ff ABGB and the regulations of the 
IPRG have to be considered. 
The issue of cross border transfers not explicitly addressed in the national rules or 
in the preparatory works. 

EN 

12 

   EN 

 
 
 
Question 1.3 

Belgium 

Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 

Spain 

France 

Ireland 

Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 

Slovenia 

Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Iceland 

Liechtenstein 

Norway 

Are  the  provisions  of  the  Directive  suitable  for  the  cross-border  transfers 
mentioned in points 1.1 and 1.2? 
There should be no major problems in case of transfers within the EEA. Possible 
problems in the case of non-EEA countries.  

Yes. 

Yes. 
Yes. 
No problems detected so far. 
Yes. 
The  problems  raised  by  the  Directive  are  general  (not  specific  to  cross-border 
transfers) and stem from the diversity of situations that can arise. 
No. The absence of express provisions on conflict of law creates problems. 
No.  Greater  clarity  is  needed  about  the  applicable  law,  jurisdiction  and 
enforcement. 
The Rome Convention suffices. 
No. 
No problems detected so far. 
Yes. 
Yes. 
No problem so far. 
No obstacle to application of the national rules implementing the Directive. 
No practical experience. 
Yes. 
Yes. The Rome Convention suffices. 
The Rome Convention applies. 
Slovene labour law does not cover enforcement of rights in case of cross-border 
transfers.  It  would  be  necessary  to  apply  the  rules  of  the  different  legal  systems 
involved. 

No. 

The Directive should state that it applies to cross-border situations. 
No practical experience. 

There would intrinsically be greater difficulties in enforcing rights against foreign-
based transferees. 

No  particular  problems  or  conflicts  that  have  arisen  in  connection  with  these 
specific provisions 
Yes 
As long as there is no court cases on cross border transfers in Norway, we do not 
know  the  effects  of  the  provisions  in  the  Directive  (or  the  Norwegian 
implementation  of  the  Directive).  A  discussion  should  be  based  on  the  eventual 
problems that do occur in practice. Therefore Norway sees the need for a study of 
the effects of the Directive when it comes to protection of workers in the case of 
cross border transfers. 

EN 

13 

   EN 

 
 
 
Question 1.4 

Belgium 
Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 
Spain 
France 
Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 

Hungary 

Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 
Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Do you consider that cross-border transfers from your country or to your country 
are increasing in number or are likely to increase in number? 
They are likely to increase. 

Likely to increase. 

Increase expected. 
Likely to increase. 
The employers' confederation has predicted an increase. 
Currently no cases. 
Likely to increase. 
No information available. 
Increase expected. 
No specific information available. 
Not likely to increase due to the geographical characteristics of the island. 
No information available. 
No information available. 
No such trend has been noted. 
No  data  on  transfers.  Stabilisation  of  the  number  of  foreign  companies  in 
Hungary. Increase in the number of Hungarian companies abroad. 
No data available. 
No. 
Likely to increase. 
No cases reported. Difficult to speculate. 
No cases reported. 
Likely to increase. 

Likely to increase. 

Likely to increase. 
No statistics available. 

No statistics available, but likely to increase. 

Iceland 
Liechtenstein 
Norway 

No significant changes have been noted. 
There are no statistics concerning cross-border transfers. 
In Norway there are no specific statistics on "transfers of undertakings" available. 

EN 

14 

   EN 

 
 
 
Question 1.5 

Belgium 
Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 
Spain 
France 
Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 
Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Do  the  national  measures  adopted  in  your  country  to  implement  the  Directive 
apply to seagoing vessels (Article 1(3))? 
No. 

Yes. 

No. 
Yes. 
Yes. 
No. 
Yes. 
No. 
No. 
Yes, except for possible specific rules in the Navigation Code. 
No. 
No. 
Yes. 
No. 
Yes. 
No. 
No. 
Yes. 
Yes. 
Yes. 
No. 

No. 

Specific provisions in force. 
Yes. 
Yes,  but  there  are  limitations  if  a  UK-registered  ship  situated  in  the  UK 
immediately  before  the  transfer  ceases  to  be  UK-registered  as  a  result  of  the 
transfer. 

Iceland 

Liechtenstein 

Norway 

No. 
The Principality of Liechtenstein being a midland, the exemption in Article 1 (3) 
of the Directive has not been implemented into national law . 
No. 

EN 

15 

   EN 

 
 
 
Question 2.1 

Belgium 
Czech 
Republic 
Denmark 

Germany 

Estonia 

Greece 
Spain 

France 

Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 

Poland 

Portugal 

Slovenia 

Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Do  your  national  provisions  provide  for  joint  liability  from  transferor  and 
transferee in respect of obligations which arose before the date of transfer from a 
contract of employment or an employment relationship existing on the date of the 
transfer (Article 3(1))? 
Yes, except debts from supplementary pension schemes.  

No. 

No. 
Yes,  for  debts  which  arose  before  the  transfer  and  are  due  to  be  met  within  one 
year after the transfer. 
Yes,  for  debts  which  arose  before  the  transfer  and  are  due  to  be  met  within  one 
year after the transfer. 
Yes. 
Yes, for 3 years after the transfer (or 4 years in the case of social security debts). 
Yes,  except  in  the  cases  of  insolvency  proceedings  and  of  successive  contracts 
without any direct contractual link between transferor and transferee. 
No. 
Yes. 
No, only by agreement between transferor and transferee. 
No. 
No. Only subsidiary responsibility for three years. 
Yes. 
Yes, provided claims are enforced within one year after the transfer. 
No. 
Yes, for one year after the transfer. 
Yes. 
Only  for  transfers  of  parts  of  undertakings.  Not  for  transfers  of  whole 
undertakings. 
Yes, for one year after the transfer. 
Only  for  claims  made  prior  to  the  transfer  and  claims  due  to  termination  of 
contracts.  

No. 

Yes. 
Yes, except insolvency situations or old-age, invalidity or survivors' benefits. 

No, except: a) compensation for failure to consult or inform and b) in the case of 
public employers, liabilities for injuries or disease which arose before the transfer. 

Iceland 
Liechtenstein 
Norway 

Yes. 
Yes. 
Yes. 

EN 

16 

   EN 

 
 
 
Question 2.2 

Belgium 
Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 
Spain 
France 
Ireland 
Italy 
Cyprus 

Latvia 

Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 
Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Iceland 
Liechtenstein 

Norway 

Do  your  national  provisions  implementing  Article  3(3)  limit  the  period  for 
observing, following the transfer, the terms and conditions agreed in a collective 
agreement? If the reply is yes, please indicate the period. 
No. 

No. 

No. 
Yes: one year. 
No. 
No. 
No. 
Yes: one year plus three months' notice. 
No. 
No. 
Minimum period for observing any collective agreement is one year.  
Provisions of any collective agreement cannot be amended to the detriment of the 
employee for one year. 
No, except in bankruptcy proceedings. 
No. 
Yes: one year. 
No. 
No. 
Yes: one year. 
Yes: one year. 
Yes: one year. 
Yes: one year. 

No. 

No. 
Yes: one year. 

No. 

No. 
Yes: One year. 
Yes.  According  to  Section  16-2,  2nd  paragraph,  the  transferee  must  observe  the 
terms  and  conditions  agreed  to  in  a  collective  agreement  prior  to  the  transfer, 
unless  the  transferee  explicitly  declares  in  writing  within  three  weeks  of  the 
transfer,  that  he  does  not  want  to  be  bound  by  the  agreement.  However,  the 
transferred workers are entitled to keep their individual conditions of employment 
that  arise  from  the  collective  agreement  agreed  to  by  the  transferor,  until  the 
collective agreement expires, or a new collective agreement is entered into by the 
transferee and the transferred employees. 

EN 

17 

   EN 

 
 
 
Question 2.3 

Belgium 
Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 
Spain 
France 
Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 

Hungary 

Malta 

Netherlands 

Austria 

Poland 

Portugal 

Slovenia 
Slovak 
Republic 

Finland 

Sweden 

United 
Kingdom 

Does  the  transfer  of  rights  and  obligations  under  the  national  provisions 
implementing  paragraphs  1  and  3  of  Article  3  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 
(Article 3(4)(a))? 
No: specifically excluded unless there is a collective agreement to the contrary. 
Those schemes are not regulated by legislation in the Czech Republic. At present 
there  is  only  legislation  on  supplementary  pension  schemes  with  a  State 
contribution.  
No, not specifically included. 
Yes. 
Yes: no specific rules. 
Yes. 
Yes: specifically included. 
Yes. 
No, not specifically included. 
Yes: all rights are transferred. 
No. 
Yes, not specifically excluded. 
Yes, if they are part of a collective agreement. 
No, not specifically included. 
No.  The  supplementary  pension funds regulated  in Hungary  are not  company or 
inter-company pension schemes since they are not linked to employment. 
Yes. 
Yes,  unless  the  transferee  itself  operates  a  pension  scheme,  in  which  case  it  can 
choose which of the two. 
Yes,  but  the  transferee  has  the  right  to  object  to  the  transfer  sufficiently  in 
advance. 
Yes. 
Yes. Since they may be established by collective agreement, they are transferred 
in the same way.  
No, there is no regulation on this matter. 

No. They are not organised/managed by the employer. 

Yes,  they  are  considered  employment  benefits  that  are  transferred  just  like  all 
other rights and obligations. 
No. However, if they are established in a collective agreement they are transferred 
in the same way. 
No,  but  if  there  is  a  transfer  the  transferee  has  to  provide  a  minimum  level  of 
pension provision to employees who were entitled to participate in a scheme run 
by the transferor. 

Iceland 
Liechtenstein 

Norway 

No. 
No. 
Yes,  they  are  transferred  to  the  new  employer.  However,  the  transferee  has  the 
option of applying existing pension schemes to the transferred employees after the 
transfer.  In  situations  where  the  pension  schemes  cannot  be  transferred  (e.g. 
transfers  from  public  to  private  sector,  where  membership  in  the  State  pension 
fund  cannot  be  upheld),  the  transferee  is  obliged  to  ensure  that  the  transferred 
workers' are covered by another group pension scheme. 

EN 

18 

   EN 

 
 
 
Question 2.4 

Belgium 
Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 
Spain 
France 
Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 
Slovak 
Republic 
Finland 

Sweden 

United 
Kingdom 

Has  the  possibility  laid  down  in  the  second  subparagraph  of  Article  4(1)11  been 
used in your country? If the reply is yes, in which way? 
No. 

No. 

No. 
No. 
No. 
No. 
Yes: for senior managers. 
No. 
No. 
No. 
No. 
No. 
No. 
No. 
Yes: for fixed-term employment contracts. 
No. 
No. 
No. 
No. 
No. 
No. 

No. 

No. 
Yes:  for  managers,  relatives  of  the  employer,  employees  working  in  the 
employer's  household  and  employees  who  are  employed  for  work  with  special 
employment support or in sheltered employment.  
Yes:  for  employees  who  do  not  have  one  year's  qualifying  service  with  their 
employer. 

Iceland 
Liechtenstein 
Norway 

No. 
No. 
No. 

11 

The  transfer  of  the  undertaking,  business  or  part  of  the  undertaking  or  business  shall  not  in  itself 
constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the 
way  of  dismissals  that  may  take  place  for  economic,  technical  or  organisational  reasons  entailing 
changes in the workforce.   
Member States may provide that the first subparagraph shall not apply to certain specific categories of 
employees who are not covered by the laws or practice of the Member States in respect of protection 
against dismissal. 

EN 

19 

   EN 

 
 
                                                 
Question 2.5 

Belgium 

Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 
Spain 

France 

Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 
Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Do  your national  provisions implementing  Articles  3  and  4  apply  to  transfers of 
undertakings where the transferor is the subject of bankruptcy proceedings or any 
analogous insolvency proceedings mentioned in Article 5(1)? 
Not in cases of bankruptcy ("faillite"), but they apply in cases of pre-bankruptcy 
("concordat judiciaire"). 

Yes. 

Yes. 
Yes. 
Yes, if the trustee transfers employment contracts.  
No. 
Yes. 
Not  in  cases  of  administration  ("redressement  judiciaire")  or  receivership 
("liquidation judiciaire") but they apply in cases of preservation ("sauvegarde").  
No. 
No. 
No. 
No. 
Yes. However, the administrator can dismiss employees. 
Yes. 
Yes. 
No. 
No. 
No. 
Yes. 
Yes. 
No. 

No. 

No, unless the transferor and transferee were under the same control. 
No. 

Yes. 

Iceland 
Liechtenstein 
Norway 

No. 
No. 
No. 

EN 

20 

   EN 

 
 
Question 2.6 

Belgium 

Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 
Spain 
France 
Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 

Poland 

Portugal 
Slovenia 
Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Has the possibility laid down in Article 5(2)(a)12 been used in your country? If the 
reply is yes, in which way? 
Yes. It is provided for in Article 8 bis of collective agreement (CCT) No 32 bis in 
cases of pre-bankruptcy ("concordat judiciaire").  

No. Normal rules on transfers apply. 

No. Normal rules on transfers apply. 
Yes, through Court interpretations of national law. 
No. 
No.  
Yes. 
Yes. 
No.  
No. 
No.  
No. 
No. Normal rules on transfers apply. 
No. Normal rules on transfers apply. 
No. Normal rules on transfers apply. 
No. 
No.  
No.  
Yes.  The  purchaser  of  a  bankrupt  company  purchases  it  free  of  liabilities  and  is 
not responsible for the obligations of the bankrupt. 
No. Normal rules on transfers apply. 
No.  

No.  

No.  
No.  

Yes, for certain pre-existing debts. 

Iceland 
Liechtenstein 
Norway 

No. 
No. 
No. 

12 

Where Articles 3 and 4 apply to a transfer during insolvency proceedings which have been opened in 
relation  to  a  transferor  (whether  or  not  those  proceedings  have  been  instituted  with  a  view  to  the 
liquidation of the assets of the transferor) and provided that such proceedings are under the supervision 
of a competent public authority (which may be an insolvency practitioner determined by national law) a 
Member State may provide that: 
(a)  notwithstanding  Article  3(1),  the  transferor's  debts  arising  from  any  contracts  of  employment  or 
employment  relationships  and  payable  before  the  transfer  or  before  the  opening  of  the  insolvency 
proceedings shall not be transferred to the transferee, provided that such proceedings give rise, under 
the law of that Member State, to protection at least equivalent to that provided for in situations covered 
by Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member 
States relating to the protection of employees in the event of the insolvency of their employer. 

EN 

21 

   EN 

 
 
 
                                                 
 
Question 2.7 

Belgium 

Czech 
Republic 
Denmark 

Germany 

Estonia 
Greece 
Spain 
France 
Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 
Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Has the possibility laid down in Article 5(2)(b)13 been used in your country? If the 
reply is yes, in which way? 
Yes. It is provided for in Article 8 bis of collective agreement (CCT) No 32 bis in 
cases of pre-bankruptcy ("concordat judiciaire"). 

No. 

No. 
Yes:  the  insolvency  administrator  can  give  notice  of  dismissals  in  view  of  the 
transfer. 
No. 
No.  
Yes. 
No. 
No.  
Yes, through use of the possibility granted by Article 5(3).  
No.  
No.  
Nothing stops parties from concluding a collective agreement to this effect. 
Yes. 
No. Normal rules on transfers apply. 
No. 
No.  
No.  
No.  
No. Normal rules on transfers apply. 
No.  

No.  

No.  
No.  

Yes. 

Iceland 
Liechtenstein 
Norway 

No. 
No. 
No. 

13 

Where Articles 3 and 4 apply to a transfer during insolvency proceedings which have been opened in 
relation  to  a  transferor  (whether  or  not  those  proceedings  have  been  instituted  with  a  view  to  the 
liquidation of the assets of the transferor) and provided that such proceedings are under the supervision 
of a competent public authority (which may be an insolvency practitioner determined by national law) a 
Member State may provide that: 
(b) the transferee, transferor or person or persons exercising the transferor's functions, on the one hand, 
and the representatives of the employees on the other hand may agree alterations, in so far as current 
law or practice permits, to the employees' terms and conditions of employment designed to safeguard 
employment  opportunities  by  ensuring  the  survival  of  the  undertaking,  business  or  part  of  the 
undertaking or business. 

EN 

22 

   EN 

 
 
                                                 
 
Question 2.8 

Belgium 
Czech 
Republic 
Denmark 

Germany 

Estonia 
Greece 
Spain 
France 
Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 
Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Do you consider that the number of insolvent undertakings that have survived in 
your  country  has  increased  thanks  to  the  use  of  the  derogations  provided  for  in 
Article 5(2)? 
No information available. 

N.A. 

N.A. 
The  legislation  in  place  was  already  in  force  in  Germany  before.  Therefore  no 
change has been noted.  
N.A. 
N.A. 
No information available, but it appears to have been useful. 
N.A. 
N.A. 
Yes, but there are no specific data. 
N.A. 
N.A. 
N.A. 
No information available. 
N.A. 
N.A. 
N.A. 
N.A. 
No information available. 
N.A. 
N.A. 

N.A. 

N.A. 
N.A. 

Too early to say. Changes have only just been introduced. 

Iceland 
Liechtenstein 
Norway 

N.A. 
N.A. 
N.A. 

EN 

23 

   EN 

 
 
Question 3.1 

Belgium 
Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 
Spain 
France 
Ireland 
Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 
Slovak 
Republic 
Finland 
Sweden 
United 
Kingdom 

Has the possibility laid down in Article 7(3)14 been used in your country? If the 
reply is yes, in which way? 
No. 

No. 

No. 
Yes. 
No. 
No. 
No. 
No. 
No. 
No. 
No. 
No. 
No. 
No. No such recourse to an arbitration board is provided for in Luxembourg. 
No. There is no such arbitration board. 
No. 
No. 
No. 
No. No such recourse to an arbitration board is provided for in Poland. 
No. No such recourse to an arbitration board is provided for in Portugal. 
No. 

No. 

No. 
No. 

No. 

Iceland 
Liechtenstein 
Norway 

No. 
No. 
No. The Norwegian legislation does not provide for any such arbitration board. 

14 

Member States whose laws, regulations or administrative provisions provide that representatives of the 
employees may have recourse to an arbitration board to obtain a decision on the measures to be taken in 
relation  to  employees  may  limit  the  obligations  laid  down  in  paragraphs  1  and  2  to  cases  where  the 
transfer  carried  out  gives  rise  to  a  change  in  the  business  likely  to  entail  serious  disadvantages  for  a 
considerable number of the employees. 
The  information  and  consultations  shall  cover  at  least  the  measures  envisaged  in  relation  to  the 
employees. 
The information must be provided and consultations take place in good time before the change in the 
business as referred to in the first subparagraph is effected. 

EN 

24 

   EN 

 
 
 
                                                 
 
 
Question 3.2 

Belgium 
Czech 
Republic 
Denmark 
Germany 
Estonia 
Greece 

Spain 

France 
Ireland 
Italy 
Cyprus 

Latvia 

Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 
Slovak 
Republic 

Finland 

Sweden 
United 
Kingdom 

Iceland 
Liechtenstein 
Norway 

Has the possibility laid down in Article 7(5)15 been used in your country? If the 
reply is yes, in which way? 
No. 

No. 

No. 
Yes: undertakings with more than 20 employees. 
No. 
No. 
No  limit  for  information  purposes.  For  consultation  purposes  in  certain 
circumstances: undertakings with more than 6 employees. 
Yes. 
No. 
No. 
No. 
Consultations take place only with employees' representatives (who are elected in 
undertakings with more than 5 workers). 
No. 
No. 
No. 
Yes: undertakings with more than 20 employees. 
No. 
No. 
No. 
No. 
No. 

No. 

Yes:  the  Act  on  Cooperation  within  Undertakings  applies  to  enterprises  with  at 
least 30 employees. 
No. 

No. 

No. 
No. 
No. 

15 

Member  States  may  limit  the  obligations  laid  down  in  paragraphs  1,  2  and  3  to  undertakings  or 
businesses  which,  in  terms  of  the  number  of  employees,  meet  the  conditions  for  the  election  or 
nomination of a collegiate body representing the employees. 

EN 

25 

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Questions  4.1 
and 4.2 

Belgium 
Czech 
Republic 
Denmark 
Germany 

Estonia 

Greece 
Spain 

France 

Ireland 

Italy 
Cyprus 
Latvia 
Lithuania 
Luxembourg 
Hungary 
Malta 
Netherlands 
Austria 
Poland 
Portugal 
Slovenia 

Slovak 
Republic 

Finland 

Sweden 

United 
Kingdom 

Do  you  consider  that  any  provision  in  the  Directive  needs  clarification  or 
improvement?  If  the  reply  is  yes,  please  specify  which  provisions  and  the 
problems encountered. 
Do you have any concrete drafting proposal to overcome the problems identified? 
No. 

No.  

No. 

The Estonian Employers' Confederation considers that the broad range of possible 
interpretations  of  Article  1  of  the  Directive  cause  legal  uncertainty  and  court 
actions. The Confederation of Estonian Trade Unions sees no need to amend the 
Directive. 
No. 
No. 
In  addition  to  the  information  due  to  employees'  representatives,  each  employee 
should be informed by the transferee about his or her rights after the transfer. 
Yes.  The  Directive  does  not  address  the  issue  of  outsourcing.  The  exclusions 
arising  as  a  result  of  application  of  the  principles  of  the  Süzen  ECJ  ruling  are 
unfair and particularly victimise low-paid workers. It is essential that measures be 
introduced to recognise that the work performed by a worker is an economic asset 
with potential to generate profit. 

No. 
No. 
No. 
No. 
No. 
No. 
No. 
No. 
No. 
The issue of cross-border transfers creates doubts. 
No. 
Yes, it is necessary to clarify Article 3(3) of the Directive in cases where several 
legal  regimes  under  several  collective  agreements  are  transferred  to  an  acquirer 
(transferee employer) and each of the collective agreements will have come into 
force on a different date. Is this a case of employee discrimination by the acquirer 
(transferee  employer)?  Does  the  collective  agreement  grant  the  most  favourable 
conditions to employees, e.g. after three undertakings are merged if applicable to 
all employees of a newly established (merged) undertaking? 
Yes. Cross-border application of the Directive could be clarified. 
No.  Possible  problems  and  solutions  could  be  discussed  within  the  Group  of 
Experts. 
The UK Government considers that Article 3(1), as interpreted by the ECJ and the 
UK  courts,  places  unnecessary  and  unhelpful  restrictions  on  employers  and 
employees  preventing  them  from  agreeing  to  vary  employment  contracts  where 
the  purpose  of  the  variation  is  to  harmonise  the  terms  and  conditions  of 
transferring  employees  with  those  of  employees  already  employed  by  the 
transferee.  Because  such  harmonisation  is  not  currently  permissible,  transferees 
are  required  to  operate  at  least  two  sets  of  terms  and  conditions  following  a 
transfer.  And  because  some  transferees  (especially  those  providing  contract 
services to employers) can be involved in many transfers, there is scope for three 
of more sets of terms and conditions to apply across a group of employees doing 
the same or similar jobs.  

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26 

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The following new second subparagraph should be inserted in Article 3(1):  

“This Article shall not prevent the employer and his employee whose contract of 
employment is, or will be, transferred from agreeing a variation of that contract by 
reason of such transfer, provided the sole or principal purpose of the variation is to 
effect harmonisation and provided the employee is no worse off overall as a result. 
“Harmonisation”  means  a  measure  intended  to  increase  uniformity  in  the  terms 
and conditions of employees, or prospective employees, of the transferee.” 

The  existing  second  subparagraph  of  Article  3(1)  would  then  become  the  third 
subparagraph. 
No. 
Some  of  the  measures  safeguarding  employees'  rights  provided  for  in  the 
Directive (Articles 3(1), 3(2), 6 and 7) should be extended to cases of change of 
ownership through share purchases. 

The provisions are generally clear. It is up to the courts to interpret the provisions 
if problems or conflicts arise. 
For the moment, there is no need for clarification or improvement. 
Norway first of all sees the need for more information of the practical problems 
with cross border transfers. A discussion should be based on the problems that do 
occur  in  cases  in  practical  life,  and  especially  what  kind  of  solutions  the  social 
partners  tend  to  reach  through  negotiations  instead  of  going  to  court.  Norway 
therefore  welcomes  the  result/report  from  the  Commission  of  the  effect  of  the 
Directive. Hopefully the report will identify eventually problems and/or needs for 
clarifications or improvements that might be of interest to discuss in the group of 
experts in order to find possible solutions 

UEAPME 

ETUC 

Iceland 

Liechtenstein 

Norway 

EN 

27 

   EN