Christa Plessers v PREFACO NV and Belgische Staat.
Date: 2019-05-16
26


In that regard, it should be recalled that it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, inter alia the relevance of the questions that it submits to the Court. Consequently, where those questions concern the interpretation of a rule of EU law, the Court is, in principle, bound to give a ruling (judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24, and of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 31).
27


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation or assessment of the validity of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25, and of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 32).
28


Since the question referred by the national court concerns the interpretation of Directive 2001/23, it must be noted that, admittedly, in the case of a dispute between private persons, the Court has consistently held that a directive cannot of itself impose obligations on private persons and cannot therefore be relied upon as such against private persons. However, the Court has also repeatedly held that Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (judgment of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 30 and the case-law cited).
29


It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of national law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and, consequently, to comply with the third paragraph of Article 288 TFEU (judgment of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 31 and the case-law cited).
32


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. To that end, the Court may have to reformulate the question referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions (judgments of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 16 and the case-law cited, and of 31 May 2018, Zheng, C‑190/17, EU:C:2018:357, paragraph 27).
34


On the one hand, worded in that manner, that question would lead the Court to rule, in the context of proceedings brought under Article 267 TFEU, on the compatibility with EU law of a provision of national law, which it is not for the Court to do (see, to that effect, judgment of 19 March 2015, OTP Bank, C‑672/13, EU:C:2015:185, paragraph 29).
38


Moreover, the Court has held that in view of the fact that Article 5(1) of Directive 2001/23, in so far as it renders, in principle, inapplicable the system of protection of employees in relation to certain transfers of undertakings, and thus negates the main objective underlying that directive, must necessarily be interpreted strictly (judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 41).
40


In that regard, the Court has held that it is necessary to ensure that such a transfer satisfies the three cumulative conditions laid down by that provision, namely that the transferor is the subject of insolvency or similar proceedings, that those proceedings were initiated for the purposes of the liquidation of the transferor’s assets and that they are under the control of a competent public authority (see, to that effect, judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 44).
44


As regards, next, the requirement that proceedings must have been instituted for the purposes of the liquidation of the transferor’s assets, it is apparent from the case-law of the Court that it is not met in the case of proceedings aimed at ensuring the continuation of the activity of the undertaking concerned (judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 47 and the case-law cited).
55


The Court has thus held that the absence of any agreement between the transferee and the lessors on a new lease, the lack of suitable alternative business premises or the impossibility of transferring staff to other sites may constitute economic, technical or organisational reasons within the meaning of Article 4(1) of Directive 2001/23 (see, to that effect, judgment of 16 October 2008, Kirtruna and Vigano, C‑313/07, EU:C:2008:574, paragraph 46).
60


It should, however, be recalled, as has already been pointed out in paragraphs 28 and 29 of the present judgment, that a national court, hearing a dispute between private persons, which finds itself unable to interpret provisions of its national law which are consistent with a directive which has not been transposed or has been incorrectly transposed, is not required, solely on the basis of EU law, to disapply those national provisions which are contrary to the provisions of that directive. The party injured as a result of the domestic legislation’s lack of compliance with the directive may nevertheless rely on the case-law stemming from the judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428), in order to obtain from the Member State, where appropriate, compensation for the damage suffered (see, to that effect, judgment of 7 August 2018, Smith, C‑122/17, EU:C:2018:631, paragraphs 49 and 56).