Anne Watson Rask and Kirsten Christensen v Iss Kantineservice A/S.
Date: 1992-11-12
15 According to the Court' s case-law (see Joined Cases 144 and 145/87 Berg v Besselsen [1988] ECR 2559, paragraph 17), the Directive is applicable whenever, in the context of contractual relations, 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.
16 The protection prescribed by the Directive applies in particular ° by virtue of Article 1(1) ° where the transfer relates only to a business or to part of a business, that is to say, to part of an undertaking. In such an event, it extends to the employees assigned to that part of the business, because, as the Court held in Case 186/83 Botzen v Rotterdamsche Droogdok Maatschappij [1985] ECR 519, paragraph 15, an employment relationship is essentially characterized by the link existing between the employee and the part of the undertaking to which he is assigned to carry out his duties.
17 Thus, where one businessman entrusts, by means of an agreement, responsibility for running a facility of his undertaking, such as a canteen, to another businessman who thereby assumes the obligations of employer vis-à-vis the employees assigned to that facility, the resulting transaction may fall within the scope of the Directive, as defined in Article 1(1). The fact that in such a case the activity transferred is merely an ancillary activity for the transferor without a necessary connection with its company objects cannot have the effect of excluding that transaction from the scope of the Directive. Nor does the fact that the agreement between the transferor and the transferee relates to provision of services exclusively for the benefit of the transferor in return for a fee, details of which are laid down by the agreement, preclude the applicability of the Directive.
18 It is for the national court to assess whether all the facts set out in its order for reference characterize a "transfer of an undertaking" within the meaning of the Directive. Accordingly, it is appropriate, in any event, to remind it that it should take account of the following considerations (see, most recently, Case C-29/91 Redmond Stichting v Hendrikus Bartol and Others [1992] ECR I-3189, paragraphs 23 and 24).
26 According to the Court' s case-law (see, in particular, Case C-362/89 D' Urso and Others v EMG [1991] ECR I-4105, paragraph 9), the Directive is intended to safeguard for workers affected by a transfer of an undertaking their existing rights under their contracts of employment or employment relationships.
27 However, as the Court held in Case 324/86 Foreningen af Arbejdsledere i Danmark v Daddy' s Dance Hall [1988] ECR 739, paragraph 16, the Directive 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. It is not intended to establish a uniform level of protection throughout the Community on the basis of common criteria. Thus the Directive can be relied on only to ensure that the employee is protected in his relations with the transferee to the same extent as he was in his relations with the transferor under the legal rules of the Member State concerned.
28 Consequently, in so far as national law allows the employment relationship to be altered in a manner unfavourable to employees in situations other than the transfer of an undertaking, in particular as regards their terms and conditions of remuneration, such an alteration is not precluded merely because the undertaking has been transferred in the meantime and the agreement has therefore been made with the new employer. Since by virtue of Article 3(1) of the Directive the transferee is subrogated to the transferor' s rights and obligations under the employment relationship, that relationship may be altered with regard to the transferee, to the same extent as it could have been with regard to the transferor, provided that the transfer of the undertaking itself may never constitute the reason for that amendment (judgment in Daddy' s Dance Hall, paragraph 17).
31 Consequently, the reply to the third question should be that Article 3 of the Directive is to be interpreted as meaning that, upon a transfer, the terms and conditions of the contract of employment or employment relationship relating to wages, in particular those relating to the date of payment and the composition of wages, cannot be altered even if the total amount of the wages remains the same. The Directive does not, however, preclude an alteration of the employment relationship with the new employer in so far as the applicable national law allows such an alteration to be made in situations other than the transfer of an undertaking. Furthermore, the transferee is also bound to continue to observe the terms and conditions of employment agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.