CELEX: C2002/084/33
Language: en
Date: 2002-04-06 00:00:00
Title: Judgment of the Court (Sixth Chamber) 24 January 2002 in Case C-51/00 (Reference for a preliminary ruling from the Cour du Travail de Bruxelles): Temco Service Industries SA v Samir Imzilyen, Mimoune Belfarh, Abdesselam Afia-Aroussi, Khalil Lakhdar (Directive 77/187/EEC — Safeguarding of employees' rights in the event of transfers of undertakings)

6.4.2002                 EN                      Official Journal of the European Communities                                              C 84/21
L 225, p. 1),the Court (Fifth Chamber), composed of: P. Jann                ruling in the proceedings pending before that court between
(Rapporteur), President of the Chamber, S. von Bahr, A. La                  Temco Service Industries SA and Samir Imzilyen, Mimoune
Pergola, L. Sevón and C.W.A. Timmermans, Judges, Advocate                  Belfarh, Abdesselam Afia-Aroussi, Khalil Lakhdar, intervener:
General: A. Tizzano, Registrar: H. von Holstein, Deputy                     General Maintenance Contractors SPRL (GMC), Buyle-Medros-
Registrar, has given a judgment on 15 January 2002, in which                Vaes Associates SA (BMV), formerly Weisspunkt SA, on the
it has ruled:                                                               interpretation of Articles 1(1) and 3(1) of Council Directive
                                                                            77/187/EEC of 14 February 1977 on the approximation of
1.    Article 2(c) and (i) of Council Directive 90/434/EEC of 23 July       the laws of the Member States relating to the safeguarding of
      1990 on the common system of taxation applicable to mergers,          employees’ rights in the event of transfers of undertakings,
      divisions, transfers of assets and exchanges of shares concerning     businesses or parts of businesses (OJ 1977 L 61, p. 26), the
      companies of different Member States must be interpreted as           Court (Sixth Chamber), composed of: F. Macken, President of
      meaning that there is no transfer of assets within the meaning        the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur),
      of that directive where the terms of a transaction are such that      R. Schintgen and J.N. Cunha Rodrigues, Judges, Advocate
      the proceeds of a significant loan contracted by the transferring     General: L.A. Geelhoed, Registrar: D. Louterman-Hubeau, Head
      company remain with that company and the obligations arising          of Division, has given a judgment on 24 January 2002, in
      from the loan are transferred to the company receiving the            which it has ruled:
      transfer. It is immaterial in this regard that the transferring
      company retains a small number of shares in a third company.
2.    It is for the national court to determine whether a transfer of
      assets involves an independent business within the meaning of
      Article 2(i) of Directive 90/434, that is to say, an entity           1.    Article 1(1) of Council Directive 77/187/EEC of 14 February
      capable of functioning by its own means, where the future cash-             1977 on the approximation of the laws of the Member States
      flow requirements of the company receiving the transfer must be             relating to the safeguarding of employees’ rights in the event of
      satisfied by a credit facility from a financial institution which           transfers of undertakings, businesses or parts of businesses must
      insists, in particular, that the shareholders of the company                be interpreted as applying to a situation in which a contractor
      receiving the transfer provide security in the form of shares               which has entrusted the contract for cleaning its premises to a
      representing the capital of that company.                                   first undertaking, which has that contract performed by a
                                                                                  subcontractor, terminates that contract and enters into a new
                                                                                  contract for the performance of the same work with a second
(1) OJ C 122 of 29.4.2000.                                                        undertaking, where the transaction does not involve any transfer
                                                                                  of tangible or intangible assets between the first undertaking or
                                                                                  the subcontractor and the second undertaking, but the second
                                                                                  undertaking has taken on, under a collective labour agreement,
                                                                                  part of the staff of the subcontractor, provided that the staff
                                                                                  thus taken on are an essential part, in terms of their number
                                                                                  and their skills, of the staff assigned by the subcontractor to the
                  JUDGMENT OF THE COURT                                           performance of the subcontract.
                           (Sixth Chamber)
                           24 January 2002
                                                                            2.    Article 3(1) of Directive 77/187 must be interpreted as
                                                                                  meaning that it does not preclude the contract or employment
in Case C-51/00 (Reference for a preliminary ruling                               relationship of a worker employed by the transferor on the date
from the Cour du Travail de Bruxelles): Temco Service                             of the transfer of the undertaking within the meaning of
Industries SA v Samir Imzilyen, Mimoune Belfarh, Abdes-                           Article 1(1) of that directive from continuing with the transferor
              selam Afia-Aroussi, Khalil Lakhdar (1)                              where that worker objects to the transfer of his employment
                                                                                  contract or employment relationship to the transferee.
(Directive 77/187/EEC — Safeguarding of employees’ rights
            in the event of transfers of undertakings)
                            (2002/C 84/33)
                     (Language of the case: French)                         (1) OJ C 122 of 29.4.2000.
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
In Case C-51/00: Reference to the Court under Article 234 EC
by the Cour du Travail de Bruxelles (Belgium) for a preliminary