CELEX: C2001/061/13
Language: en
Date: 2001-02-24 00:00:00
Title: Case C-4/01: Reference for a preliminary ruling by the Employment Tribunal, West Croydon (United Kingdom), by order of that court of 5 January 2001, in the case of Ms S.G. Martin, Mr R.K.A. Daby and Mr B.J. Willis against South Bank University

24.2.2001               EN                    Official Journal of the European Communities                                         C 61/7
—     Manifest error of fact and law, distortion, contradiction,         2.   Is the employees’ entitlement to the payment of early
      insufficient statement of reasons and infringement of                   superannuation benefits and lump sum compensation on
      Article 176 of the EC Treaty: the Court of First Instance               redundancy/in the interests of the efficiency of the
      quite simply obliterated the findings in its two earlier                service/on organisational change, a right to an old age,
      judgments (2) and even accepted, theoretically, the expla-              invalidity or survivors’ benefit within the meaning of
      nation offered by the Commission at the hearing that, by                Article 3.3 of the Directive?
      referring in their letter of 1 July 1987 to a ‘quid pro quo’
      consisting in their refusal to authorise other makes of
      Japanese car, the French authorities simply ‘meant to
      make the policy they [were implementing] more palat-               3.   If and to the extent that the answer to question 2 is ‘no’,
      able’, a policy that finds no basis in any regulation or law            is there an obligation on the transferor arising from the
      authorising the exertion of irresistible pressure                       contract of employment, the employment relationship or
      accompanied by threats. That was a mere expedient. It                   the collective agreement within the meaning of Article
      was a distortion of a clear text, already correctly analysed            3.1 and/or 3.2 which transfers by reason of the transfer
      in the previous judgments, to find, in vague terms, to                  of the undertaking and renders the transferee liable to
      the contrary, that the Commission’s ‘explanation’ could                 pay the benefits to the employee upon dismissal?
      ‘reasonably be accepted’. It would not appear to matter
      that, for this manifest misappraisal of the legal import of
      the facts, the Court of First Instance had to distort the          4.   If the answers to questions 2 and 3 are ‘no’ and ‘yes’
      meaning of terms whose sense is had to misconstrue,                     respectively, may the employee, nonetheless, agree to
      such as ‘arrangement’, ‘quid pro quo’, undertaking, ‘reas-              forego his/her entitlement to early, payment of pension
      sessment of the system or commercial choice’.                           and retirement lump sum and/or the annual allowance
                                                                              and lump sum compensation in circumstances where the
                                                                              transferee’s pension scheme does not entitle him or her
(1) In Case T-154/98, OJ C 358 of 21 November 1998, p. 22.                    to the same benefits and the same circumstances or at all,
(2) The judgments in Cases T-7/92 [1993] ECR II-669, and T-387/94             and he/she
    [1996] ECR II-961.
                                                                              (i)   becomes a member of the transferee’s pension
                                                                                    scheme; makes contributions to it and/or has contri-
                                                                                    butions made to it on his/her behalf by the transferee
                                                                                    employer;
                                                                              (ii) becomes a member of the transferee’s pension
                                                                                    scheme, makes contributions to it and has contri-
                                                                                    butions made to it on his/her behalf by the transferee
                                                                                    employer and successfully applies to transfer his/her
Reference for a preliminary ruling by the Employment                                accrued benefits from the transferor’s pension
Tribunal, West Croydon (United Kingdom), by order of                                scheme into the transferee’s pension scheme?
that court of 5 January 2001, in the case of Ms S.G. Martin,
Mr R.K.A. Daby and Mr B.J. Willis against South Bank
                             University
                                                                         5.   If so, what are the criteria by which the national
                                                                              court should decide whether, in such circumstances, the
                           (Case C-4/01)                                      employee has agreed?
                          (2001/C 61/13)
                                                                         6.   Are Articles 3.1 and/or 3.2 of the Directive to be
                                                                              interpreted as precluding the transferee from offering
Reference has been made to the Court of Justice of the                        transferred employees the option of taking early retire-
European Communities by an order of the Employment                            ment on the basis of early retirement benefits that are less
Tribunal, West Croydon (United Kingdom) of 5 January 2001,                    beneficial than those to which they are entitled as a
which was received at the Court Registry on 8 January 2001,                   consequence of the effect of the Directive?
for a preliminary ruling in the case of Ms S.G. Martin, Mr
R.K.A. Daby and Mr B.J. Willis against South Bank University,
on the following questions:                                              7.   Is the answer to the foregoing question affected if, when
                                                                              offering transferred employees the option of taking early
1.    Do rights which are contingent upon either dismissal or                 retirement on terms less beneficial than those to which
      premature retirement by agreement with the employer                     they are entitled under the Directive, the transferee states
      fall within the definition of ‘rights and obligations’ within           that no early retirement benefits will be available in
      the meaning of Article 3.1 of the Directive (1)?                        future?
 ---pagebreak--- C 61/8                  EN                     Official Journal of the European Communities                                       24.2.2001
8.    Where the parties have agreed that the employee will                Pleas in law and main arguments
      take premature retirement on the terms offered by the
      employer, what criteria should the national court apply             —     Distortion of the notion of aid as referred to in Article
      in determining whether the transfer of the undertaking is                 4(c) CS and in the steel aids code — manifest error of
      the reason for that agreement in accordance with the                      assessment: Cockerill Sambre has not derived any benefit
      principle enunciated by the Court in Foreningen af                        from the intervention of the Federal and Walloon auth-
      Arbeidsledre-v-Daddy’s Dance Hall, Case 324/86 (2)?                       orities in the implementation of the plan for the reduction
                                                                                of working time, since not only was the company under
                                                                                no legal obligation to pay remuneration for the 34 hours
9.    If the effect of Article 3 of the Directive is to preclude the            worked at the level payable for 37 hours but, in addition,
      transferee from offering transferred employees the option                 the collective working agreement of 17 April 1998
      of taking early retirement on the basis of early retirement               contained no commitment on the part of the company
      benefits that are less beneficial than those to which they                to maintain the. remuneration of those workers affected
      are entitled under the effect of the Directive, what are the              by the reduction in working time.
      consequences for employees who accept early retirement
      on the basis offered to them by the employer?                             Consequently, the transitional increment which the
                                                                                Region of Wallonia has undertaken to pay does not
                                                                                constitute operating costs of the company. That tran-
                                                                                sitional increment is not intended to constitute remuner-
(1) Council Directive 77/187/EEC of 14 February 1977 on the                     ation for work done by the workers affected by the
    approximation of the laws of the Member States relating to the              reduction in working time but to compensate for the
    safeguarding of employees’ rights in the event of transfers                 financial efforts which they have themselves proposed to
    of undertakings, businesses or parts of businesses (OJ L 61,                make with a view to the creation of 150 jobs for young
    05.03.1977, p. 26).                                                         workers.
(2) ECR 1988 p. 739.
                                                                                The reduction in social contributions agreed to by the
                                                                                Federal authorities confers no economic advantage on
                                                                                Cockerill Sambre. The overall number of hours worked
                                                                                within the company has not been altered in response to
                                                                                the plan for the reduction in working time accompanied
                                                                                by the compensatory engagement of 150 young workers.
                                                                                The same number of hours are worked for the company,
                                                                                at the same cost to the company.
                                                                          —     Failure to take account of the notion of a beneficiary: the
                                                                                interventions by the public authorities constitute aid in
                                                                                favour of the Cockerill Sambre workers affected by the
Action brought on 8 January 2001 by the Kingdom
                                                                                scaling-down, and not aid in favour of Cockerill Sambre.
of Belgium against the Commission of the European
                                                                                The fact that aid is granted to workers in their capacity as
                           Communities
                                                                                employees of a specific undertaking does not, as such,
                                                                                preclude it from being categorised as aid to individuals.
                           (Case C-5/01)                                  —     Non-compliance with the procedure laid down by the
                                                                                steel aids code - Lack of competence: the fact that the
                                                                                three-month time-limit prescribed by Article 6(5) has not
                          (2001/C 61/14)                                        been complied with means that the Commission is not
                                                                                competent to decide whether a measure constitutes aid
                                                                                incompatible with the steel aids code.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European              —     Failure to fulfil the obligation to provide a statement of
Communities on 8 January 2001 by the Kingdom of Belgium,                        reasons.
represented by A. Snoecx, acting as Agent, assisted by J.M. De
Backer, G. Vandersanden and L. Levi, lawyers, with an address             —     (In the alternative) Infringement of Article 95 CS: the
for service in Luxembourg.                                                      intervention measures are not intended artificially to
                                                                                maintain jobs in an undertaking which has no commercial
                                                                                or financial viability; instead, they are designed to attain a
                                                                                social objective which is, moreover, championed by the
The Kingdom of Belgium claims that the Court should:                            European Community, namely progress towards the
                                                                                achievement of full employment by means of the redistri-
                                                                                bution of work. In those circumstances, the Commission
—     annul the Commission’s decision of 15 November 2000                       has committed a manifest and obvious error of assess-
      (No C 76/1999) entitled ‘State aid granted by Belgium in                  ment by refusing, on an exceptional basis, to authorise
      favour of the steel undertaking Cockerill Sambre S.A.’;                   the measures in issue under Article 95 CS.
—     order the Commission to pay the costs.