Nurten Güney-Görres (C-232/04) and Gul Demir (C-233/04) v Securicor Aviation (Germany) Ltd and Kötter Aviation Security GmbH & Co. KG.
Date: 2005-12-15
31. According to that case-law, the aim of Directive 2001/23 is to ensure continuity of employment relationships within an economic entity, irrespective of any change of ownership. The decisive criterion for establishing the existence of a transfer within the meaning of that directive is, therefore, whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (see, inter alia, Case 24/85 Spijkers  [1986] ECR 1119, paragraphs 11 and 12; Case C-13/95 Süzen  [1997] ECR I-1259, paragraph 10 and Case C‑340/01 Abler and Others  [2003] ECR I-14023, paragraph 29).
32. For Directive 2001/23 to be applicable the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract (see inter alia Case C-48/94 Rygaard  [1995] ECR I-2745, paragraph 20). The term ‘entity’ thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective (see inter alia Süzen , cited above, paragraph 13 and Abler and Others , cited above, paragraph 30).
33. In order to determine whether the conditions for the transfer of an organised economic entity are met, it is necessary to consider all the facts characterising the transaction in question, including in particular the type of undertaking or business concerned, 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 (see, inter alia, Case C-29/91 Redmond Stichting  [1992] ECR I-3189, paragraph 24, and the cases cited above Spijkers , paragraph 13, Süzen , paragraph 14, and Abler and Others , paragraph 33).
34. However, all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see inter alia Spijkers , paragraph 13; Süzen , paragraph 14, and Abler and Others , paragraph 34).
35. The national court, in assessing the facts characterising the transaction in question, must take into account the type of undertaking or business concerned. It follows that the degree of importance to be attached to each criterion indicating 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 Süzen , paragraph 18; Joined Cases C-173/96 and C-247/96 Hidalgo and Others [1998] ECR I-8237, paragraph 31, and Abler and Others , paragraph 35).
37. In this connection, it must be noted that it is clear from the wording of Article 1 of Directive 2001/23 that it is applicable whenever, in the context of contractual relations, there is a change in the legal or natural person who is responsible for carrying on the undertaking or business and who by virtue of that fact incurs the obligations of an employer vis-à-vis the employees of the undertaking or business, regardless of whether or not ownership of the tangible assets is transferred ( Abler and Others , paragraph 41, and the case-law cited).
38. In paragraph 42 of the judgment in Abler and Others , the Court held that the fact that the tangible assets taken over by the new contractor did not belong to its predecessor but were provided by the contracting authority cannot preclude the existence of a transfer of an undertaking or business within the meaning of Directive 77/187.