WAS TEMPORARILY CLOSED AT THE TIME OF THE TRANSFER AND THEREFORE HAD NO EMPLOYEES CERTAINLY CONSTITUTES ONE FACTOR TO BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER A BUSINESS WAS TRANSFERRED AS A GOING CONCERN . HOWEVER, THE TEMPORARY CLOSURE OF AN UNDERTAKING AND THE RESULTING ABSENCE OF STAFF AT THE TIME OF THE TRANSFER DO NOT OF THEMSELVES PRECLUDE THE POSSIBILITY THAT THERE HAS BEEN A TRANSFER OF AN UNDERTAKING WITHIN THE MEANING OF ARTICLE 1 ( 1 ) OF THE DIRECTIVE .
20 THAT IS TRUE IN PARTICULAR IN THE CASE OF A SEASONAL BUSINESS, ESPECIALLY WHERE, AS IN THIS CASE, THE TRANSFER TAKES PLACE DURING THE SEASON WHEN IT IS CLOSED . AS A GENERAL RULE SUCH CLOSURE DOES NOT MEAN THAT THE UNDERTAKING HAS CEASED TO BE A GOING CONCERN .
21 IT IS FOR THE NATIONAL COURT TO MAKE THE NECESSARY FACTUAL APPRAISAL, IN THE LIGHT OF THE CRITERIA FOR INTERPRETATION SET OUT ABOVE, IN ORDER TO ESTABLISH WHETHER OR NOT THERE HAS BEEN A TRANSFER IN THE SENSE INDICATED .
22 FOR THOSE REASONS THE REPLY TO THE SECOND AND THIRD QUESTIONS MUST BE THAT ARTICLE 1 ( 1 ) OF DIRECTIVE 77/187, PROPERLY CONSTRUED, ENVISAGES THE TRANSFER OF A BUSINESS AS A GOING CONCERN . IN ORDER TO ASCERTAIN WHETHER THAT IS THE CASE, ACCOUNT MUST BE TAKEN OF ALL THE FACTUAL CIRCUMSTANCES SURROUNDING THE TRANSACTION IN QUESTION, INCLUDING, WHERE APPROPRIATE, THE TEMPORARY CLOSURE OF THE UNDERTAKING AND THE FACT THAT THERE WERE NO EMPLOYEES AT THE TIME OF THE TRANSFER, ALTHOUGH THESE FACTS ALONE DO NOT PRECLUDE THE APPLICABILITY OF THE DIRECTIVE, ESPECIALLY IN THE CASE OF A SEASONAL BUSINESS .
THE FOURTH QUESTION
23 BY THE FOURTH QUESTION ARBEJDSRETTEN ASKS ESSENTIALLY WHETHER ARTICLE 3 ( 2 ) OF DIRECTIVE 77/187 MUST BE INTERPRETED AS OBLIGING THE TRANSFEREE TO CONTINUE TO OBSERVE THE TERMS AND CONDITIONS AGREED IN ANY COLLECTIVE AGREEMENT IN RESPECT OF WORKERS WHO WERE NOT EMPLOYED BY THE UNDERTAKING AT THE TIME OF ITS TRANSFER .
24 ACCORDING TO LANDSORGANISATIONEN I DANMARK THAT QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE . ON THE OTHER HAND, DANSK ARBEJDSGIVERFORENING, THE UNITED KINGDOM AND THE COMMISSION EMPHASIZE THAT ONLY PERSONS WHO ARE EMPLOYED BY THE UNDERTAKING AT THE TIME OF THE TRANSFER MAY TAKE ADVANTAGE OF THE DIRECTIVE, AND NOT PERSONS WHO ARE ENGAGED AFTER THE TRANSFER .
25 AS THE COURT HAS ALREADY STATED, IN PARTICULAR IN ITS JUDGMENT OF 11 JULY 1985 IN CASE 105/84 FORENINGEN AF ARBEJDSLEDERE I DANMARK V DANMOLS INVENTAR (( 1985 )) ECR 2639, THE PURPOSE OF THE DIRECTIVE IS TO ENSURE, AS FAR AS POSSIBLE, THAT THE CONTRACT OF EMPLOYMENT OR EMPLOYMENT RELATIONSHIP CONTINUES UNCHANGED WITH THE TRANSFEREE, IN ORDER TO PREVENT THE WORKERS CONCERNED FROM BEING PLACED IN A LESS FAVOURABLE POSITION SOLELY AS A RESULT OF THE TRANSFER . IT IS THEREFORE CONSISTENT WITH THE SCHEME OF THE DIRECTIVE TO INTERPRET IT AS MEANING THAT UNLESS OTHERWISE EXPRESSLY PROVIDED IT MAY BE RELIED ON