Albert Merckx and Patrick Neuhuys v Ford Motors Company Belgium SA.
Date: 1996-03-07
16. As regards the first part of the question as reformulated, it is settled case-law that the decisive criterion for establishing whether there is a transfer for the purposes of the Directive is whether the entity in question retains its economic identity, as indicated  inter alia  by the fact that its operation is actually continued or resumed (see  inter alia  the judgment in Case C-29/91  Redmond Stichting  v  Hendrikus Bartol  [1992] ECR I-3189, paragraph 23).
17. In order to determine whether that condition is met, it is necessary to consider all the facts characterizing the transaction in question, including the type of undertaking or business, whether or not the business ' s 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 is taken over by the new employer, whether or not its customers are transferred and 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.  It should be noted, however, that all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (judgment in Case C-29/91  Redmond Stichting , cited above, paragraph 24).
20. First, Mr Merckx and Mr Neuhuys claimed that in the circumstances at issue in the main proceedings there had been neither a transfer of the company ' s tangible or intangible assets nor at least partial preservation of the undertaking ' s structure and organization.  Moreover, the municipalities of the Brussels conurbation in which Novarobel has its principal place of business are different from those in which Anfo Motors carried on its business.
21. Those circumstances are not such as to prevent the application of the Directive, since, having regard to the nature of the activity pursued, the transfer of tangible assets is not conclusive of whether the entity in question retains its economic identity  (see to that effect the judgment in Case C-392/92  Schmidt  v  Spar- und Leihkasse der früheren Ämter Bordesholm, Kiel und Cronshagen  [1994] ECR I-1311, paragraph 16).  The purpose of an exclusive dealership for the sale of motor vehicles of a particular make in a certain sector remains the same even if it is carried on under a different name, from different premises and with different facilities.  It is also irrelevant that the principal place of business is situated in a different area of the same conurbation, provided that the contract territory remains the same.
28. On account of the differences between the language versions of the Directive and the divergences between the laws of the Member States with regard to the concept of legal transfer, the Court has given that concept a sufficiently flexible interpretation in keeping with the objective of the Directive, which is to safeguard employees in the event of a transfer of their undertaking, and has held that the Directive is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person who is responsible for carrying on the business and who incurs the obligations of an employer towards employees of the undertaking (see,  inter alia , the judgment in  Redmond Stichting , cited above, at paragraphs 10 and 11).
29. The Court has therefore held that the Directive applies to the termination of a lease of a restaurant followed by the conclusion of a new management contract with another operator (Case 324/86  Tellerup  v  Daddy ' s Dance Hall  [1988] ECR 739), the termination of a lease followed by a sale by the owner (Case 101/87  Bork International  v  Foreningen af Arbejdsledere i Danmark  [1988] ECR 3057), and also a situation in which a public authority ceases to grant subsidies to a legal person thereby bringing about the full and definitive termination of its activities in order to transfer them to another legal person with a similar aim ( Redmond Stichting , cited above).
30. It is clear from that case-law that, for the Directive to apply, it is not necessary for there to be a direct contractual relationship between the transferor and the transferee.  Consequently, where a motor vehicle dealership concluded with one undertaking is terminated and a new dealership is awarded to another undertaking pursuing the same activities, the transfer of undertaking is the result of a legal transfer for the purposes of the Directive, as interpreted by the Court.
33. As regards the second part of the question as reformulated above, the Court held in Case 105/84  Foreningen af Arbejdsledere i Danmark  v  Danmols Inventar  [1985] ECR 2639, paragraph 16, that the protection which the Directive is intended to guarantee is redundant where the person concerned decides of his own accord not to continue the employment relationship with the new employer after the transfer.
34. It also follows from the judgment in Joined Cases C-132/91, C-138/91 and C-139/91  Katsikas and Others  v  Konstandinidis  [1992] ECR I-6577, paragraphs 31 and 32, that, whilst the Directive allows the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor, it cannot be interpreted as obliging the employee to continue his employment relationship with the transferee.  Such an obligation would jeopardize the fundamental rights of the employee, who must be free to choose his employer and cannot be obliged to work for an employer whom he has not freely chosen.
35. It follows that, in the event of the employee deciding of his own accord not to continue with the contract of employment or employment relationship with the transferee, it is for the Member States to determine what the fate of the contract of employment or employment relationship should be.  The Member States may provide, in particular, that in such a case the contract of employment or employment relationship must be regarded as terminated either by the employee or by the employer.  They may also provide that the contract or employment relationship should be maintained with the transferor (judgment in  Katsikas and Others , cited above, paragraphs 35 and 36).