Administrador de Infraestructuras Ferroviarias (ADIF) v Luis Aira Pascual and Others.
Date: 2015-11-26
22. It should be observed as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. In that light, the Court may have to reformulate the questions referred to it (judgments in Krüger , C‑334/95, EU:C:1997:378, paragraphs 22 and 23, and Byankov , C‑249/11, EU:C:2012:608, paragraph 57).
25. The Court has therefore held that the mere fact that the transferee is a public-law body cannot be a ground for excluding the existence of a transfer within the scope of Directive 2001/23 (see, to that effect, judgment in CLECE , C‑463/09, EU:C:2011:24, paragraph 26 and the case-law cited).
26. Accordingly, the fact that the legal person at issue in the main proceedings is a public undertaking responsible for a public service does not exclude it from the scope of Directive 2001/23.
28. In that respect, it is settled case-law of the Court that Directive 2001/23 is applicable wherever, in the context of contractual relations, there is a change in the legal or natural person who is responsible for carrying on the undertaking and who by virtue of that fact incurs the obligations of an employer vis-à-vis the employees of the undertaking, regardless of whether or not ownership of the tangible assets is transferred (see judgments in Abler and Others , C‑340/01, EU:C:2003:629, paragraph 41, and CLECE , C‑463/09, EU:C:2011:24, paragraph 30).
29. Thus the Court has held that Directive 2001/23 is capable of applying to a situation in which an undertaking, which entrusted to another undertaking the effective performance of work, decides to terminate its contract with that other undertaking and to carry out that work itself (see, to that effect, judgment in CLECE , C‑463/09, EU:C:2011:24, paragraph 31).
32. In order to determine whether that condition is met, it is necessary to consider all the facts characterising the transaction in question, including in particular the type of undertaking or business, whether or not its tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended. However, all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see judgments in Abler and Others , C‑340/01, EU:C:2003:629, paragraphs 33 and 34, and CLECE , C‑463/09, EU:C:2011:24, paragraph 34 and the case-law cited).
33. In particular, the Court has held that a national court, in assessing the facts characterising the transaction in question, must take into account among other things the type of undertaking or business concerned.
34. It follows that the degree of importance to be attached to each criterion for determining whether or not there has been a transfer within the meaning of Directive 2001/23 will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business (see, to that effect, judgment in Abler and Others , C‑340/01, EU:C:2003:629, paragraph 35 and the case-law cited).
35. It is true that the Court has held in that respect that, in a sector where the activity is based essentially on manpower, the identity of an economic entity cannot be retained if the majority of its employees are not taken on by the alleged transferee (see, to that effect, judgment in CLECE , C‑463/09, EU:C:2011:24, point 41).
38. As regards, next, the fact that the tangible assets essential to the performance of the activity at issue in the main proceedings belonged at all times to ADIF, it must be recalled that, in accordance with the case-law cited in paragraph 28 above, whether or not ownership of tangible assets is transferred is not relevant for the purposes of the application of Directive 2001/23.
39. In that regard, the Court has held that the fact that the tangible assets taken over by the new contractor did not belong to its predecessor but were merely provided by the contracting authority cannot preclude the existence of a transfer of an undertaking within the meaning of Directive 2001/23 (see, to that effect, judgment in Abler and Others , C‑340/01, EU:C:2003:629, paragraph 42).
41. As regards, lastly, ADIF’s failure to take over Algeposa’s employees, it must be recalled that the Court has already held that the failure of the new contractor to take over, in terms of numbers and skills, an essential part of the staff which its predecessor employed to perform the same activity is not sufficient to preclude the existence of a transfer of an entity which retains its identity within the meaning of Directive 2001/23 in a sector, such as that at issue in the main proceedings, where the activity is based essentially on equipment. Any other conclusion would run counter to the principal objective of Directive 2001/23, which is to ensure the continuity, even against the wishes of the transferee, of the employment contracts of the employees of the transferor (see, to that effect, judgment in Abler and Others , C‑340/01, EU:C:2003:629, paragraph 37)