João Filipe Ferreira da Silva e Brito and Others v Estado português.
Date: 2015-09-09
24. In answering that question, it must be borne in mind that the Court has held that Directive 77/187, which has been codified by Directive 2001/23, is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the business who incurs the obligations of an employer towards employees of the undertaking (see judgments in Merckx and Neuhuys , C‑171/94 and C‑172/94, EU:C:1996:87, paragraph 28; Hernández Vidal and Others , C‑127/96, C‑229/96 and C‑74/97, EU:C:1998:594, paragraph 23; and Amatori and Others , C‑458/12, EU:C:2014:124, paragraph 29 and the case-law cited).
25. According to settled 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, the fact that the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (see judgments in Spijkers , 24/85, EU:C:1986:127, paragraphs 11 and 12; Güney-Görres and Demir , C‑232/04 and C‑233/04, EU:C:2005:778, paragraph 31 and the case-law cited; and Amatori and Others , C‑458/12, EU:C:2014:124, paragraph 30 and the case-law cited).
26. In order to determine whether that condition is met, it is necessary to consider all the facts characterising the transaction concerned, 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. However, all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see judgments in Spijkers , 24/85, EU:C:1986:127, paragraph 13; Redmond Stichting , C‑29/91, EU:C:1992:220, paragraph 24; Süzen , C‑13/95, EU:C:1997:141, paragraph 14; and Abler and Others , C‑340/01, EU:C:2003:629, paragraph 33).
27. In particular, the Court has pointed out that the degree of importance to be attached to each criterion will necessarily vary according to the activity carried on and the production or operating methods employed in the undertaking, business or part of a business (see judgments in Süzen , C‑13/95, EU:C:1997:141, paragraph 18; Hernández Vidal and Others , C‑127/96, C‑229/96 and C‑74/97, EU:C:1998:594, paragraph 31; Hidalgo and Others , C‑173/96 and C‑247/96, EU:C:1998:595, paragraph 31; and, to that effect, UGT-FSP , C‑151/09, EU:C:2010:452, paragraph 28).
29. The first point to make is that in a situation such as that at issue in the main proceedings, which concerns the air transport sector, the fact that tangible assets are transferred must be regarded as a key factor for the purpose of determining whether there is a ‘transfer of a business’ within the meaning of Article 1(1) of Directive 2001/23 (see, to that effect, judgment in Liikenne , C‑172/99, EU:C:2001:59, paragraph 39).
33. It follows from paragraphs 46 and 47 of the judgment in Klarenberg (C‑466/07, EU:C:2009:85) that what is relevant for the purpose of finding that the identity of the transferred entity has been preserved is not the retention of the specific organisation imposed by the employer on the various elements of production which are transferred, but rather the retention of the functional link of interdependence and complementarity between those elements.
34. Thus, the retention of a functional link of that kind between the various elements transferred allows the transferee to use them — even if they are integrated, after the transfer, in a new and different organisational structure — to pursue an identical or analogous economic activity (see judgment in Klarenberg , C‑466/07, EU:C:2009:85, paragraph 48).
37. In that regard, although it is true that the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them, the fact remains that when there is no judicial remedy under national law against the decision of a court or tribunal of a Member State, that court or tribunal is, in principle, obliged to bring the matter before the Court of Justice under the third paragraph of Article 267 TFEU where a question relating to the interpretation of EU law is raised before it (see judgment in Consiglio nazionale dei geologi and Autorità garante della concorrenza e del mercato , C‑136/12, EU:C:2013:489, paragraph 25 and the case-law cited).
38. As regards the extent of that obligation, it follows from settled case-law, beginning with the judgment in Cilfit and Others  (283/81, EU:C:1982:335), that a court or tribunal against whose decisions there is no judicial remedy under national law is obliged, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the provision of EU law concerned has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.
39. The Court has also made clear that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the European Union (judgment in Intermodal Transports , C‑495/03, EU:C:2005:552, paragraph 33).
40. It is true that the national court or tribunal has sole responsibility for determining whether the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and for deciding, as a result, to refrain from referring to the Court a question concerning the interpretation of EU law which has been raised before it (see judgment in Intermodal Transports , C‑495/03, EU:C:2005:552, paragraph 37 and the case-law cited).
42. A court or tribunal adjudicating at last instance may take the view that, although the lower courts have interpreted a provision of EU law in a particular way, the interpretation that it proposes to give of that provision, which is different from the interpretation espoused by the lower courts, is so obvious that there is no reasonable doubt.
44. It follows that, in circumstances such as those of the case before the referring court, which are characterised both by conflicting lines of case-law at national level regarding the concept of a ‘transfer of a business’ within the meaning of Directive 2001/23 and by the fact that that concept frequently gives rise to difficulties of interpretation in the various Member States, a national court or tribunal against whose decisions there is no judicial remedy under national law must comply with its obligation to make a reference to the Court, in order to avert the risk of an incorrect interpretation of EU law.
47. The Court observes in that regard that, in view of the essential role played by the judiciary in the protection of the rights derived by individuals from the rules of EU law, the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are prejudiced by an infringement of EU law attributable to a decision of a court or tribunal of a Member State adjudicating at last instance (see judgment in Köbler , C‑224/01, EU:C:2003:513, paragraph 33).
50. It must be recalled that where the conditions for a State to incur liability are satisfied, a matter which it is for the national courts to determine, it is on the basis of national law that the State must make reparation for the consequences of the loss or damage caused, provided that the conditions laid down by national law in respect of reparation of loss or damage are not less favourable than those relating to similar domestic claims (principle of equivalence) and are not so framed as to make it, in practice, impossible or excessively difficult to obtain reparation (principle of effectiveness) (see judgment in Fuß , C‑429/09, EU:C:2010:717, paragraph 62 and the case-law cited).
51. A rule of national law, such as the rule in Article 13(2) of the RRCEE, may make it excessively difficult to obtain reparation for the loss or damage caused by the infringement of EU law in question.
54. It is true that the Court has stressed the importance, both for the EU legal order and for the national legal systems, of the principle of res judicata , stating that in the absence of EU legislation in this area, the rules implementing the principle of res judicata  are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States (see, to that effect, judgment in Fallimento Olimpiclub , C‑2/08, EU:C:2009:506, paragraphs 22 and 24).
58. The last-mentioned principle is inherent in the system of the Treaties on which the European Union is based (see, to that effect, judgment in Specht and Others , C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 98 and the case-law cited).
59. Accordingly, a significant obstacle, such as that resulting from the rule of national law at issue in the main proceedings, to the effective application of EU law and, in particular, a principle as fundamental as that of State liability for infringement of EU law cannot be justified either by the principle of res judicata  or by the principle of legal certainty.