Commission of the European Communities v Italian Republic.
Date: 2004-12-09
31. As to the compatibility of Article 14 of the decree with Directive 96/67, in the light of Article 18 of that directive, it is clear from the 24 th  recital in the preamble to the directive that Member States retain the power to ensure an adequate level of social protection for the staff of undertakings providing groundhandling services.
32. As regards the definition of ‘adequate level’, it must be pointed out, as the Advocate General rightly observes at point 33 of his Opinion, that that power does not confer an unlimited jurisdiction and must be exercised in a manner that does not prejudice the effectiveness of Directive 96/67 and the objectives it pursues. As the Court noted in Case C-363/01 Flughafen Hannover-Langenhagen [2003] ECR I‑11893, paragraph 43, the aim of the directive is to ensure the opening‑up of the groundhandling market which, according to the fifth recital in the preamble to the directive, must help, in particular, to reduce the operating costs of airlines.
33. By contrast, the interpretation of Article 18 of Directive 96/67 provided by the Italian Government, particularly as regards the taking into account of social considerations, would make the entry of new suppliers of services in the groundhandling market unduly difficult, as they would be obliged to take over the staff employed by the previous supplier. As a result, the rational use of airport infrastructures and the reduction of the costs of the services charged to users would be impaired.
34. The obligation imposed by Article 14 of Legislative Decree No 18/99 on the undertakings concerned to take over the staff of the previous supplier puts potential new competitors at a disadvantage in relation to established undertakings and jeopardises the opening-up of the groundhandling markets, thereby undermining the effectiveness of Directive 96/67.
38. Article 1(1) of that directive provides that it applies to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger.  The Court’s case-law makes it clear that the decisive criterion for establishing the existence of a transfer within the meaning of the directive is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (see, inter alia, Case 24/85 Spijkers  [1986] ECR 1119, paragraphs 11 and 12, and Case C-13/95 Süzen  [1997] ECR I-1259, pargraph 10).
39. In order to determine whether the conditions for the transfer of an entity are met, the Court has held that it is necessary to consider all the facts characterising the transaction in question, including in particular the type of undertaking or business, 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, in particular, Spijkers , paragraph 13, and Süzen , paragraph 14).