Harry Berg and Johannes Theodorus Maria Busschers v Ivo Martin Besselsen.
Date: 1988-05-05
11 An analysis of Article 3 ( 1 ) and, more particularly, the relationship between the first and second subparagraphs of this paragraph show that the transfer of an undertaking entails the automatic transfer from the transferor to the transferee of the employer' s obligations arising from a contract of employment or an employment relationship, subject however to the right of Member States to provide for joint liability of the transferor and transferee following the transfer . It follows that, unless the Member States avail themselves of this possibility, the transferor is released from his obligations as an employer solely by reason of the transfer and that this legal consequence is not conditional on the consent of the employees concerned .
12 Mr Berg and Mr Busschers are mistaken in arguing that this interpretation is not consistent with the aim pursued by Directive 77/187/EEC . As the Court has consistently held, most recently in its judgment of 10 February 1988 in Case 324/86 Daddy' s Dance Hall (( 1981 )) ECR 739, this 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 transferee under the same conditions as those agreed with the transferor . Its purpose is not, however, to ensure that the contract of employment or the employment relationship with the transferor is continued where the undertaking' s employees do not wish to remain in the transferee' s employ .
13 Similarly, the argument based on a principle of the law of obligations which, it is claimed, is generally recognized in the legal systems of the Member States, namely that a debt may be transferred only with the creditor' s consent, cannot be accepted . Without there being any need to assess the effect of that principle, it is sufficient to observe that the rules applicable in the event of a transfer of an undertaking or a business to another employer are intended to safeguard, in the interests of the employees, the existing employment relationships which are part of the economic entity transferred . That is why the directive provides for the automatic transfer of obligations arising from employment contracts to the transferee, thereby overriding the principle relied on by the plaintiff in the main proceedings . Moreover, by giving the Member States the power to provide for joint liability of the transferor and the transferee following the transfer, the second subparagraph of Article 3 ( 1 ) of Directive 77/187 enables them to reconcile the rule of automatic transfer with the principles of their domestic legal systems .
14 Accordingly, the reply to the first question must be that Article 3 ( 1 ) of Directive 77/187 of 14 February 1977 must be interpreted as meaning that after the date of transfer and by virtue of the transfer alone, the transferor is discharged from all obligations arising under the contract of employment or the employment relationship, even if the workers employed in the undertaking did not consent of if they object, subject however to the power of the Member States to provide for joint liability of the transferor and the transferee after the date of transfer .
The second question
17 As the Court has already held, in its judgment of 17 December 1987 in Case 287/86 Ny Moelle Kro (( 1987 )) ECR 5465, Directive 77/187 is applicable where, following a legal transfer or merger, there is a change in the legal or natural person who is responsible for carrying on the business and who by virtue of that fact incurs the obligations of an employer vis-à-vis the employees of the undertaking, regardless of whether or not ownership of the undertaking is transferred .