Securitas - Serviços e Tecnologia de Segurança SA v ICTS Portugal – Consultadoria de Aviação Comercial SA and Others.
Date: 2017-10-19
23


It that regard, it should be recalled that, in accordance with the settled case-law of the Court, Directive 2001/23 is applicable whenever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the undertaking and entering into the obligations of an employer towards employees of the undertaking. Thus there is no need, in order for Directive 2001/23 to be applicable, for there to be any direct contractual relationship between the transferor and the transferee: the transfer may take place through the intermediary of a third party (see, inter alia, judgments of 7 March 1996, Merckx and Neuhuys, C‑171/94 and C‑172/94, EU:C:1996:87, paragraphs 28 and 30, and of 20 November 2003, Abler and Others, C‑340/01, EU:C:2003:629, paragraph 39).
24


It follows that the lack of a contractual link between the two undertakings successively entrusted with managing the surveillance and security of port facilities has no bearing on the question as to whether or not Directive 2001/23 is applicable to a situation such as that at issue in the main proceedings.
26


In order to determine whether that condition is met, 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. Those circumstances must be considered as part of the overall assessment of the circumstances of the particular case and cannot therefore be considered in isolation (see, to that effect, judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 32 and the case-law cited).
27


In particular, the Court has held that a national court, in assessing the facts characterising the transaction in question, must take into account among other things the type of undertaking or business concerned (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 33).
28


It follows that the degree of importance to be attached to each criterion for determining whether or not there has been a transfer within the meaning of Directive 2001/23 will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 34).
29


The Court has therefore held that, in a sector where the activity is based essentially on manpower, the identity of an economic entity cannot be retained if the majority of its employees are not taken on by the alleged transferee (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 35).
30


Where, however, the activity is based essentially on equipment, the fact that the former employees of an undertaking are not taken over by the new contractor to perform that activity, as in the case in the main proceedings, is not sufficient to preclude the existence of a transfer of an economic entity which retains its identity, within the meaning of Directive 2001/23. Any other conclusion would run counter to the principal objective of Directive 2001/23, which is to ensure the continuity, even against the wishes of the transferee, of the employment contracts of the employees of the transferor (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 41).
33


The referring court will also have to determine whether such assets were made available to ICTS and Securitas by Portos dos Açores. In that regard, it should be recalled that the fact that the tangible assets essential to the performance of the activity at issue in the main proceedings and taken over by the new contractor did not belong to its predecessor but were merely provided by the contracting entity cannot preclude the existence of a transfer of an undertaking within the meaning of Directive 2001/23 (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraphs 38 and 39). However, only the equipment that is actually used in order to provide the security guard services, excluding the facilities that are the subject of those services, must, where appropriate, be taken into consideration for the purpose of establishing the existence of a transfer of an entity which retains its identity within the meaning of Directive 2001/23 (judgment of 29 July 2010, UGT-FSP, C‑151/09, EU:C:2010:452, paragraph 31).
36


In that regard, the Court has already held that the mere loss of a service contract to a competitor cannot by itself indicate the existence of a transfer within the meaning of Directive 2001/23 (judgment of 11 March 1997, Süzen, C‑13/95, EU:C:1997:141, paragraph 16). However, a provision of national law that generally excludes the loss of a customer by an operator following the award of a service contract to another operator from the scope of that concept does not allow all the facts characterising the transaction in question to be taken into consideration.