Claude Rotsart de Hertaing v J. Benoidt SA, in liquidation and IGC Housing Service SA.
Date: 1996-11-14
16 As the Court has repeatedly held (see, inter alia, Joined Cases 144/87 and 145/87 Berg and Busschers v Besselsen [1988] ECR 2559, paragraph 12), the Directive is intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the new employer under the same conditions as those agreed with the transferor.
17 It is likewise settled case-law (see Case 324/86 Tellerup v Daddy' s Dance Hall [1988] ECR 739, paragraph 14) that the rules of the Directive, in particular those concerning the protection of workers against dismissal by reason of the transfer, must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees.
18 It follows that in the event of the transfer of an undertaking the contract of employment or employment relationship between the staff employed by the undertaking transferred may not be maintained with the transferor and is automatically continued with the transferee (Case C-362/89 D' Urso and Others v Ercole Marelli Elettromecanica Generale and Others [1991] ECR I-4105, paragraph 12). The Court concluded that the contracts of employment and employment relationships existing on the date of the transfer of an undertaking between the transferor and the workers employed in the undertaking transferred are automatically transferred to the transferee by the mere fact of the transfer (D' Urso, paragraph 20).
19 It must, however, be stated that, according to the second subparagraph of Article 3(1), the automatic transfer of employment relationships to the transferee does not prevent the Member States from providing for joint liability of the transferor and transferee (see, on this point, Berg and Busschers, paragraphs 11 and 13).
23 On this point, it must be observed firstly that it follows from the actual wording of the Directive that the transfer of the contracts of employment and employment relationships takes place on the date of the transfer of the undertaking. The second subparagraph of Article 3(1) does in fact give the Member States the option of providing that, after the date of transfer, the transferor is to be liable, alongside the transferee, for the obligations arising from a contract of employment or employment relationship. Such a rule implies that in any event those obligations are transferred to the transferee on the date of the transfer.
24 Secondly, the Court held in paragraph 14 of its judgment in Berg and Busschers that Article 3(1) is to be interpreted as meaning that after the date of transfer the transferor is in principle discharged, by virtue of the transfer alone, from all obligations arising under the contract of employment or in the employment relationship. Given the Directive' s objective of protecting workers, that can only be done if the obligations in question are transferred to the transferee as from the date of transfer.
25 Thirdly, to allow the transferor or transferee the possibility of choosing the date from which the contract of employment or employment relationship is transferred would amount to allowing employers to derogate, at least temporarily, from the provisions of the Directive. However, according to the settled case-law referred to in paragraph 16, those provisions are mandatory.
26 The answer to the second part of the second question must therefore be that the transfer of the contracts of employment and employment relationships pursuant to Article 3(1) of the Directive necessarily takes place on the date of the transfer of the undertaking and cannot be postponed to another date at the will of the transferor or transferee.