Judgment of the Court of 18 December 2014 in Case E-10/14 — Enes Deveci and Others v Scandinavian Airlines System Denmark-Norway-Sweden (Directive 2001/23/EC — Transfer of undertakings — Collective agreements — Freedom to conduct a business)
Date: 2014-12-18
Institutions: EFTA Court
Subjects: EFTA, collective agreement, labour law, pay scale, right of establishment, transfer of businesses








C_2015183EN.01001001.xml










4.6.2015   


EN


Official Journal of the European Union


C 183/10





JUDGMENT OF THE COURT
of 18 December 2014
in Case E-10/14
Enes Deveci and Others v Scandinavian Airlines System Denmark-Norway-Sweden
(Directive 2001/23/EC — Transfer of undertakings — Collective agreements — Freedom to conduct a business)
(2015/C 183/11)
In Case E-10/14, Enes Deveci and Others v Scandinavian Airlines System Denmark-Norway-Sweden – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice from Eidsivating Court of Appeal (Eidsivating lagmannsrett) concerning the interpretation of Council Directive 2001/23/EC 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, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Páll Hreinsson, Judges, gave judgment on 18 December 2014, the operative part of which is as follows:






1.


It is consistent with Article 3(3) of Directive 2001/23/EC when terms and conditions of pay enjoyed by the transferred employees under the collective agreement with the transferor are replaced, in conformity with national law, by conditions of pay laid down in the collective agreement in force with the transferee after the expiry of the former collective agreement.
A pay reduction – whether significant or otherwise – cannot influence this assessment.
However, the national court must assess whether the applicable national law provides for continuing effects in a situation such as the present. Article 3(3) of Directive 2001/23/EC has to be interpreted as meaning that terms and conditions laid down in a collective agreement to which such continuing effects apply constitute ‘terms and conditions agreed in any collective agreement’ so long as those employment relationships are not subject to a new collective agreement or new individual agreements are not concluded with the employees concerned.










2.


Article 3(3) of Directive 2001/23/EC does not prevent the transferee from applying to the transferred employees the transferee's collective agreement two months after the transfer, if that collective agreement is made applicable in accordance with national law.
However, Article 3 of Directive 2001/23/EC precludes the possibility that transferred employees suffer a substantial loss of income, in comparison with their situation immediately prior to the transfer, because the duration of their service with the transferor is not sufficiently taken into account when their starting salary position at the transferee is determined and where the conditions for remuneration under the newly applicable collective agreement have regard, inter alia, to the length of service. In that determination the equivalent duration of service of those employees already in the service of the transferee must be taken into consideration.
It is for the national court to examine whether the conditions of pay under the transferee's collective agreement take due account of the length of service.