Foreningen af Arbejdsledere i Danmark v A/S Danmols Inventar, in liquidation.
Date: 1985-07-11
14 IN THIS CONNECTION IT IS ALSO NECESSARY TO REFER TO ARTICLE 4 ( 1 ) OF DIRECTIVE NO 77/187 , WHICH PROVIDES THAT ' THE TRANSFER OF AN UNDERTAKING , BUSINESS OR PART OF A BUSINESS SHALL NOT IN ITSELF CONSTITUTE GROUNDS FOR DISMISSAL BY THE TRANSFEROR OR THE TRANSFEREE ' . HOWEVER , THAT PROVISION IS NOT TO ' STAND IN THE WAY OF DISMISSALS THAT MAY TAKE PLACE FOR ECONOMIC , TECHNICAL OR ORGANIZATIONAL REASONS ENTAILING CHANGES IN THE WORK-FORCE . '
16 THE PROTECTION WHICH THE DIRECTIVE IS INTENDED TO GUARANTEE IS HOWEVER REDUNDANT WHERE THE PERSON CONCERNED DECIDES OF HIS OWN ACCORD NOT TO CONTINUE THE EMPLOYMENT RELATIONSHIP WITH THE NEW EMPLOYER AFTER THE TRANSFER . THAT IS THE CASE WHERE THE EMPLOYEE IN QUESTION TERMINATES THE EMPLOYMENT CONTRACT OR EMPLOYMENT RELATIONSHIP OF HIS OWN FREE WILL WITH EFFECT FROM THE DATE OF THE TRANSFER , OR WHERE THAT CONTRACT OR RELATIONSHIP IS TERMINATED WITH EFFECT FROM THE DATE OF THE TRANSFER BY VIRTUE OF AN AGREEMENT VOLUNTARILY CONCLUDED BETWEEN THE WORKER AND THE TRANSFEROR OR THE TRANSFEREE OF THE UNDERTAKING . IN THAT SITUATION ARTICLE 3 ( 1 ) OF THE DIRECTIVE DOES NOT APPLY .
24 IT MAY BE RECALLED THAT THE COURT , INTER ALIA IN ITS JUDGMENT OF 23 MARCH 1982 ( CASE 53/81 , LEVIN , ( 1982 ) ECR 1035 ), HELD THAT THE TERM ' WORKER '   AS USED IN THE TREATY , MAY NOT BE DEFINED BY REFERENCE TO THE NATIONAL LAWS OF THE MEMBER STATES BUT HAS A COMMUNITY MEANING . IF THAT WERE NOT THE CASE , THE COMMUNITY RULES ON FREEDOM OF MOVEMENT FOR WORKERS WOULD BE FRUSTRATED , SINCE THE MEANING OF THE TERM COULD BE DECIDED UPON AND MODIFIED UNILATERALLY , WITHOUT ANY CONTROL BY THE COMMUNITY INSTITUTIONS , BY THE MEMBER STATES , WHICH WOULD THUS BE ABLE TO EXCLUDE AT WILL CERTAIN CATEGORIES OF PERSONS FROM THE BENEFIT OF THE TREATY .
26 IT IS CLEAR FROM THOSE PROVISIONS THAT DIRECTIVE NO 77/187 IS INTENDED TO ACHIEVE ONLY PARTIAL HARMONIZATION ESSENTIALLY BY EXTENDING THE PROTECTION GUARANTEED TO WORKERS INDEPENDENTLY BY THE LAWS OF THE INDIVIDUAL MEMBER STATES TO COVER THE CASE WHERE AN UNDERTAKING IS TRANSFERRED . ITS AIM IS THEREFORE TO ENSURE , AS FAR AS POSSIBLE , THAT THE CONTRACT OF EMPLOYMENT OR THE EMPLOYMENT RELATIONSHIP CONTINUES UNCHANGED WITH THE TRANSFEREE SO THAT THE EMPLOYEES AFFECTED BY THE TRANSFER OF THE UNDERTAKING ARE NOT PLACED IN A LESS FAVOURABLE POSITION SOLELY AS A RESULT OF THE TRANSFER . IT IS NOT HOWEVER INTENDED TO ESTABLISH A UNIFORM LEVEL OF PROTECTION THROUGHOUT THE COMMUNITY ON THE BASIS OF COMMON CRITERIA .
27 IT FOLLOWS THAT DIRECTIVE NO 77/187 MAY BE RELIED UPON ONLY BY PERSONS WHO ARE , IN ONE WAY OR ANOTHER , PROTECTED AS EMPLOYEES UNDER THE LAW OF THE MEMBER STATE CONCERNED . IF THEY ARE SO PROTECTED , THE DIRECTIVE ENSURES THAT THEIR RIGHTS ARISING FROM A CONTRACT OF EMPLOYMENT OR AN EMPLOYMENT RELATIONSHIP ARE NOT DIMINISHED AS A RESULT OF THE TRANSFER .
28 IN REPLY TO THE SECOND QUESTION IT MUST THEREFORE BE HELD THAT THE TERM ' EMPLOYEE '  WITHIN THE MEANING OF DIRECTIVE NO 77/187 MUST BE INTERPRETED AS COVERING ANY PERSON WHO , IN THE MEMBER STATE CONCERNED , IS PROTECTED AS AN EMPLOYEE UNDER NATIONAL EMPLOYMENT LAW . IT IS FOR THE NATIONAL COURT TO ESTABLISH WHETHER THAT IS THE CASE IN THIS INSTANCE .