Jules Dethier Équipement SA v Jules Dassy and Sovam SPRL.
Date: 1998-03-12
19 It should be noted first of all that the Court has consistently held that it cannot give preliminary rulings on questions which bear no relation to the facts and the subject-matter of the main action and are therefore not strictly needed in order to decide the case (see, in particular, Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563, paragraph 6; Case C-343/90 Lourenço Dias v Director da Alfândega do Porto [1992] ECR I-4673, paragraph 20; Case C-18/93 Corsica Ferries v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783, paragraph 14; and Case C-96/94 Centro Servizi Spediporto v Spedizioni Marittima del Golfo [1995] ECR I-2883, paragraph 45).
21 Next, as the Court ruled in Case 135/83 Abels v Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische Industrie [1985] ECR 469, the Directive does not apply to the transfer of an undertaking, business or part of a business in the course of insolvency proceedings.
22 However, it is clear from paragraphs 28 and 29 of that judgment that the Directive is applicable to proceedings such as a `surséance van betaling' (judicial leave to suspend payment of debts), even though they have certain features in common with insolvency proceedings. The Court in fact considered that the reasons for not having the Directive apply in the case of insolvency proceedings were not valid when the proceedings in question involved supervision by the court which was more limited than in the case of insolvency and when they were intended primarily to safeguard the assets of the undertaking and, if possible, to keep the undertaking in business by means of a collective suspension of debt payment with a view to reaching a settlement allowing the undertaking to continue operating in the future.
23 Similarly, the Court held in Case C-362/89 D'Urso and Others [1991] ECR I-4105 that the Directive did not apply to transfers of undertakings, businesses or parts of a business made as part of a creditors' arrangement procedure of the kind provided for by the Italian legislation on compulsory administrative liquidation, whose effects were comparable to those of bankruptcy proceedings (paragraphs 28, 31 and 34).  Conversely, it did apply when it was decided, under a body of legislation such as that governing special administration for large undertakings in critical difficulties, that the undertaking was to continue trading for as long as that decision remained in force. In such cases, the primary purpose of the special administration procedure was to give the undertaking some stability allowing its future activity to be safeguarded. The social and economic objectives thus pursued could not explain or justify the circumstance that, when all or part of the undertaking was transferred, its employees lost the rights which the Directive conferred on them under the conditions which it laid down (D'Urso and Others, paragraphs 29 and 32, 33 and 34).
24 More recently, the Court held in Case C-472/93 Spano and Others v Fiat Geotech and Fiat Hitachi [1995] ECR I-4321 that the Directive applied to the transfer of an undertaking declared to be in critical difficulties pursuant to Italian Law No 675 of 12 August 1977. It pointed out in particular that the purpose of a declaration that an undertaking was in critical difficulties was to enable the undertaking to retrieve its economic and financial situation and above all to preserve jobs, that the procedure in question was designed to promote the continuation of its business with a view to its subsequent recovery and that, by contrast with insolvency proceedings, it did not involve any judicial supervision or any measure whereby the assets of the undertaking were put under administration and did not provide for any suspension of payments (paragraphs 26, 28 and 29).
25 It follows from that case-law that, in deciding whether the Directive applies to the transfer of an undertaking subject to an administrative or judicial procedure, the determining factor to be taken into consideration is the purpose of the procedure in question (D'Urso and Others, paragraph 26, and Spano and Others, paragraph 24). However, as the Advocate General has stated in points 31, 41 and 45 of his Opinion, account should also be taken of the form of the procedure in question, in particular in so far as it means that the undertaking continues or ceases trading, and also of the Directive's objectives.
27 It follows that, although the objectives of a winding up by the court may sometimes be similar to those of insolvency proceedings, this is not necessarily the case, since liquidation proceedings may be used whenever it is wished to bring a company's activities to an end and whatever the reasons for that course.
30 It is thus apparent that the situation of an undertaking being wound up by the court presents considerable differences from that of an undertaking subject to insolvency proceedings and that the reasons which have led the Court to rule out application of the Directive in the latter situation may be absent in the case of an undertaking being wound up by the court.
31 That is the case where, as in the main proceedings, the undertaking continues to trade while it is being wound up by the court.  In such circumstances continuity of the business is assured when the undertaking is transferred. There is accordingly no justification for depriving the employees of the rights which the Directive guarantees them on the conditions it lays down.
35 The Court has held that employees whose contract of employment or employment relationship comes to an end with effect from a date prior to that of the transfer, contrary to Article 4(1), must be regarded as still employed by the undertaking on the date of the transfer, with the result, in particular, that the employer's obligations towards them are automatically transferred from the transferor to the transferee (Case 101/87 Bork International and Others v Foreningen af Arbejdsledere i Danmark [1988] ECR 3057, paragraph 18).
39 First, it follows from the judgment in Bork International and Others that employees dismissed before the undertaking was transferred, contrary to Article 4(1), must be regarded as still employed by the undertaking on the date of the transfer.
40 Secondly, it is settled case-law (see, in particular, 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.