Federatie Nederlandse Vakvereniging and Others v Smallsteps BV.
Date: 2017-06-22
30


In that regard, it should, however, be noted that neither the Statute of the Court of Justice of the European Union nor the Rules of Procedure make provision for the interested parties referred to in Article 23 of the Statute to submit observations in response to the Advocate General’s Opinion (see, to that effect, judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30).
31


Under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require his involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 3 December 2015, Banif Plus Bank, C‑312/14, EU:C:2015:794, paragraph 33).
32


Consequently, an interested party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26).
33


Nevertheless, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the interested persons (see judgment of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 27).
36


It should be observed as a preliminary point that, according to the Court’s 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 national court with an answer which will be of use to it and enable it to determine the case before it. With that in mind, the Court may have to reformulate the questions referred to it (judgment of 1 February 2017, Município de Palmela, C‑144/16, EU:C:2017:76, paragraph 20 and the case-law cited).
41


In view of the fact that Article 5(1), in principle, renders inapplicable the scheme for the protection of employees in relation to certain transfers of undertakings, and thus negates the main objective underlying Directive 2001/23, that provision must necessarily be interpreted strictly (see, as regards Article 3(3) of Directive 77/187, as amended by Directive 98/50, judgment of 4 June 2002, Beckmann, C‑164/00, EU:C:2002:330, paragraph 29).
44


In that regard, it is a requirement of Article 5(1) of Directive 2001/23 that the transferor be the subject of bankruptcy proceedings or any analogous insolvency proceedings. Furthermore, those proceedings must have been instituted with a view to the liquidation of the assets of the transferor and be under the supervision of a competent public authority.
47


In the second place, Article 5(1) of Directive 2001/23 requires the bankruptcy proceedings or any analogous insolvency proceedings to be instituted with a view to liquidation of the assets of the transferor. In that regard it is clear, as follows from the case-law of the Court, that a procedure aimed at ensuring the continuation of the undertaking in question does not satisfy that requirement (see, to that effect, judgments of 25 July 1991, d’Urso and Others, C‑362/89, EU:C:1991:326, paragraphs 31 and 32, and of 7 December 1995, Spano and Others, C‑472/93, EU:C:1995:421, paragraph 25).
50


In those circumstances, and subject to determination by the referring court, it must be held that since such a procedure is not ultimately aimed at liquidating the undertaking, the economic and social objectives it pursues are no explanation of, or justification for, the employees of the undertaking concerned losing the rights conferred on them by Directive 2001/23 when all or part of that undertaking is transferred (see, by analogy, judgment of 7 December 1995, Spano and Others, C‑472/93, EU:C:1995:421, paragraphs 28 and 30).