CELEX: C1998/278/30
Language: en
Date: 1998-09-05 00:00:00
Title: Reference for a preliminary ruling by the Industrial Tribunal, Leeds, by decision of that court of 5 May 1998, in the case of G. C. Allen and others against Amalgamated Construction Co. Limited (Case C-234/98)

C 278/18              EN                 Official Journal of the European Communities                                          5.9.98
Reference for a preliminary ruling by the Industrial                     (vi) after being employed by company B the
Tribunal, Leeds, by decision of that court of 5 May 1998,                      employees carry out work for both companies A
in the case of G. C. Allen and others against                                  and B as needed by the local management who
          Amalgamated Construction Co. Limited                                 are responsible for both companies;
                        (Case C-234/98)
                         (98/C 278/30)                                   (vii) the work undertaken was continuous, there was
                                                                               no suspension of activities at any time or any
                                                                               change in the manner in which they were
                                                                               conducted.
Reference has been made to the Court of Justice of the
European Communities by a decision of the Industrial
Tribunal, Leeds, of 5 May 1998, which was received at               (1) Council Directive 77/187/EEC of 14 February 1977 on the
the Court Registry on 3 July 1998, for a preliminary                    approximation of the laws of the Member States relating to
ruling in the case of G. C. Allen and others against                    the safeguarding of employees' rights in the event of transfer
                                                                        of undertakings, businesses or parts of businesses (OJ L 61,
Amalgamated Construction Co. Limited, on the following
                                                                        5.3.1977, p. 26).
questions:
1. Is the Acquired Rights Directive (77/187/EEC) (1)
    capable of applying to two companies in the same
    corporate group which have common ownership,
    management, premises and work or are such
    companies a single undertaking for the purpose of the           Reference for a preliminary ruling from the Arios Pagos
    Directive? In particular, can there be a transfer of an         by judgment of that court of 12 May 1998 in the case of
    undertaking for the purposes of the Directive when              Panagis Neophytos Pythagoras Pafitis and Others and
    company A transfers a substantial part of its labour                       Trapeza Kentrikis Ellados AE and Others
    force to company B in the same corporate group.
                                                                                            (Case C-235/98)
                                                                                             (98/C 278/31)
2. If the answer to question 1 is in the affirmative what
    are the criteria for deciding whether there has been
    such a transfer? In particular, has there been a transfer
    of undertaking in the following circumstances:                  Reference has been made to the Court of Justice of the
                                                                    European Communities by an order of the Arios Pagos
                                                                    (Supreme Court of Cassation) of 12 May 1998, which was
    (i)   over a period of time the workers involved have           received at the Court Registry on 6 July 1998, for a
          been dismissed from company A, purportedly                preliminary ruling in the case of Panagis Neophytos
          for redundancy, and offered employment                    Pythagoras Pafitis and Others and Trapeza Kentrikis
          with associated company B carrying out a                  Ellados AE and Others, pending before it, on the
          geographical distinct undertaking or part of the          following question:
          undertaking of company A, namely the driving
          of mine tunnels;
                                                                    Does a dispute arising out of an increase in the share
    (ii)  no      transfer   of   premises,     management,         capital of a public limited liability banking company and
          infrastructure, materials or assets occurred              the allocation of the new shares, which were the subject
          between company A and B and the majority of               of decisions taken under temporary administration by a
          significant assets used by both companies in the          temporary administrator, imposed on that company by the
          work of driving main tunnels is supplied by a             supervisory authority (Governor of the Bank of Greece),
          third party, the mine operator;                           where that dispute subsists solely and exclusively as
                                                                    between the company and the new shareholders who
                                                                    acquired the new shares, on the one hand, and certain of
    (iii) company A remains the sole contractor with the
                                                                    its old shareholders, on the other, come within the vertical
          third-party client which engaged it to work on
                                                                    relationship of individuals and the State or State bodies so
          construction projects which were undertaken on
                                                                    as to require under the third paragraph of Article 189 of
          a rolling' basis;
                                                                    the EC Treaty the direct application, in order to deal with
                                                                    the dispute in question, of the provisions of the
    (iv) there was little or no contemporaneity between             abovementioned Second Council Directive 77/91/EEC (1),
          the movement of the workers from company A                even before the Member State which is an addressee of the
          to company B and the beginning and/or end of              Directive has transposed the Directive into national law?
          the contracts under which the work was
          performed;
                                                                    (1) OJ L 26, 30.1.1977, p. 1.
    (v)   company A and company B share the same
          management and premises;