BUSINESS OR PART OF A BUSINESS WHERE THE TRANSFEROR HAS BEEN ADJUDGED INSOLVENT AND THE UNDERTAKING OR BUSINESS IN QUESTION FORMS PART OF THE ASSETS OF THE INSOLVENT TRANSFEROR , ALTHOUGH THE MEMBER STATES ARE AT LIBERTY TO APPLY THE PRINCIPLES OF THE DIRECTIVE TO SUCH A TRANSFER ON THEIR OWN INITIATIVE . THE DIRECTIVE DOES , HOWEVER , APPLY WHERE AN UNDERTAKING , BUSINESS OR PART OF A BUSINESS IS TRANSFERRED TO ANOTHER EMPLOYER IN THE COURSE OF A PROCEDURE SUCH AS A ' ' SURSEANCE VAN BETALING ' ( JUDICIAL LEAVE TO SUSPEND THE PAYMENT OF DEBTS ). '
10 IT FOLLOWS THAT THE MERE FACT THAT THE TRANSFER OF AN UNDERTAKING , BUSINESS OR PART OF A BUSINESS HAS OCCURRED AFTER THE TRANSFEROR HAS SUSPENDED PAYMENT OF ITS DEBTS IS NOT ENOUGH TO EXCLUDE THE SAID TRANSACTIONS FROM THE SCOPE OF DIRECTIVE NO 77/187 . IT THEREFORE APPLIES TO A TRANSFER AS DEFINED IN ARTICLE 1 ( 1 ) WHICH IS EFFECTED IN THE COURSE OF A PROCEDURE , OR AT A STAGE , PRIOR TO THE COMMENCEMENT OF LIQUIDATION PROCEEDINGS .
THE FIRST QUESTION
11 BY THE FIRST QUESTION THE VESTRE LANDSRET ASKS ESSENTIALLY WHETHER ARTICLE 3 ( 1 ) OF COUNCIL DIRECTIVE NO 77/187 OF 14 FEBRUARY 1977 MUST BE INTERPRETED AS APPLYING ALSO TO THE TRANSFER OF THE RIGHTS AND OBLIGATIONS OF PERSONS WHO WERE EMPLOYED BY THE TRANSFEROR AT THE DATE OF THE TRANSFER BUT WHO DO NOT CONTINUE TO WORK AS EMPLOYEES OF THE TRANSFEREE .
12 THE PARTIES TO THE MAIN PROCEEDINGS AND THE COMMISSION SUGGEST THAT THAT QUESTION SHOULD BE ANSWERED IN THE NEGATIVE . THAT FOLLOWS BOTH FROM A LINGUISTIC INTERPRETATION OF THE PROVISION AND FROM AN INTERPRETATION BASED ON THE OBJECTIVES OF THE DIRECTIVE . THE ACTUAL WORDING OF THE PROVISION IN QUESTION SHOWS THAT IT APPLIES ONLY WHERE THERE IS A CHANGE OF EMPLOYER , IN OTHER WORDS WHERE THE PERSON CONCERNED CONTINUES AS AN EMPLOYEE OF THE TRANSFEREE . THAT CONCLUSION IS IN THEIR VIEW SUPPORTED BY REFERENCE TO THE AIM OF THE DIRECTIVE , WHICH IS TO ENSURE THE CONTINUITY OF THE EMPLOYMENT RELATIONSHIP OF THE EMPLOYEE VIS-A-VIS THE PERSON ACQUIRING THE UNDERTAKING .
13 IT MUST BE NOTED THAT , ACCORDING TO THE FIRST SUB-PARAGRAPH OF ARTICLE 3 ( 1 ) OF THE DIRECTIVE , ' THE TRANSFEROR ' S RIGHTS AND OBLIGATIONS ARISING FROM A CONTRACT OF EMPLOYMENT OR FROM AN EMPLOYMENT RELATIONSHIP EXISTING ON THE DATE OF A TRANSFER WITHIN THE MEANING OF ARTICLE 1 ( 1 ) SHALL , BY REASON OF SUCH TRANSFER , BE TRANSFERRED TO THE TRANSFEREE ' . THE SECOND SUB-PARAGRAPH STATES HOWEVER THAT ' MEMBER STATES MAY PROVIDE THAT , AFTER THE DATE OF TRANSFER WITHIN THE MEANING OF ARTICLE 1 ( 1 ) AND IN ADDITION TO THE TRANSFEREE , THE TRANSFEROR SHALL CONTINUE TO BE LIABLE IN RESPECT OF OBLIGATIONS WHICH AROSE FROM A CONTRACT OF EMPLOYMENT OR AN EMPLOYMENT RELATIONSHIP ' . MOREOVER