Case C-293/24, Ferreira da Silva e Brito and Others: Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 23 April 2024 – João Filipe Ferreira da Silva e Brito and Others v Estado Português
Date: 2024-04-23
Institutions: Court of Justice
Subjects: air transport, approximation of laws, cessation of trading, collective dismissal, labour law, severance pay, transfer of businesses, worker information








C_202405056EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/5056


26.8.2024






Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 23 April 2024 – João Filipe Ferreira da Silva e Brito and Others v Estado Português


(Case C-293/24, Ferreira da Silva e Brito and Others)

(C/2024/5056)
Language of the case: Portuguese

Referring court

Supremo Tribunal de Justiça

Parties to the main proceedings


Appellants: João Filipe Ferreira da Silva e Brito and Others

Respondent: Estado Português

Questions referred









1.


In view of the proven facts set out above and the case-law of the Court of Justice as it stood at 25 February 2009, should Council Directive 77/187/EEC (1) 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] and Council Directive 2001/23/EC (2) 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, in particular Article 1(1) of Council Directive 2001/23/EC, which clarified the concept of ‘transfer’, have been interpreted on that date as meaning that the concept of ‘transfer of a business’ encompassed a situation in which an undertaking active in the charter flights market was wound up by a decision of its majority shareholder, which was itself an undertaking active in the aviation sector and which, in the context of the winding-up, carried out the acts which are described in greater detail in the proven facts set out above?












2.


If the answer is in the affirmative and likewise in view of the proven facts set out above and the case-law of the Court of Justice as it stood at 25 February 2009, does the decision contained in the judgment given on that same date by the Supremo Tribunal de Justiça (Supreme Court, Portugal), which, deciding at last instance and in the light of the facts of which it was aware, held that the above-mentioned directives, in particular Article 1(1) of Council Directive 2001/23/EC of 12 March 2001, should be interpreted as meaning that the concept of ‘transfer of a business’ did not encompass the situation described in the previous question, constitute a sufficiently serious breach of EU law?












3.


In view of the proven facts set out above and the case-law of the Court of Justice as it stood at 25 February 2009, does the decision contained in the judgment given on that same date by the Supremo Tribunal de Justiça (Supreme Court), which, deciding at last instance and in the light of the facts of which it was aware, held that Article 234 TEC (now Article 267 TFEU) should be interpreted as meaning that, in view of the facts described in the first question referred and the fact that the lower national courts that had heard the case had given conflicting decisions, the Supremo Tribunal de Justiça (Supreme Court) was not obliged to request a preliminary ruling from the Court of Justice regarding the correct interpretation of the concept of ‘transfer of a business’ for the purposes of Article 1(1) of Directive 2001/23/EC, constitute a sufficiently serious breach of EU law?












4.


If the answer to the first question is in the affirmative and if the answer to either or both of the previous two questions is in the affirmative, the conclusion having been reached that there is a sufficiently serious breach of EU law – in a case such as the present one, in which it has been proved that the employees agreed to receive compensation for the collective redundancy, as they were convinced that the dissolution of Air Atlantis, their employer, was inevitable and were unaware that, after the termination of their contracts of employment, TAP would carry on at least part of the charter flight activity which, until then, had been carried on by Air Atlantis and that some of Air Atlantis’s equipment, including the aircraft, would be transferred to TAP – must Article 3(1) of Council Directive 77/187/EEC of 14 February 1977 be interpreted as meaning that it precludes a national provision, such as Article 23(3) of Decree-Law No 64-A/89 (3) of 27 February, which has since been repealed but was applicable at the time of the facts in the main proceedings, in accordance with which ‘where the employee takes the compensation referred to in this article, it equates to acceptance of the dismissal’?






(1)  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).

(2)  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 (OJ 2001 L 82, p. 16).

(3)  Decreto-Lei n.o 64-A/89, que aprova o regime jurídico da cessação do contrato individual de trabalho, incluindo as condições de celebração e caducidade do contrato de trabalho a termo (Decree-Law No 64-A/89 establishing the legal rules governing the termination of individual contracts of employment and the conclusion and expiry of fixed-term contracts of employment) (Diário da República No 48/1989, 2nd Supplement, Series I of 27 February 1989, pp. 16-21) (Decree-Law No 64-C/89 of 27 February 1989).


ELI: http://data.europa.eu/eli/C/2024/5056/oj
ISSN 1977-091X (electronic edition)