Reiner Grafe and Jürgen Pohle v Südbrandenburger Nahverkehrs GmbH and OSL Bus GmbH.
Date: 2020-02-27
23


It is apparent from the case-law of the Court that the decisive criterion for establishing the existence of such a transfer is the fact that the economic entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (see, to that, effect, judgment of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 25 and the case-law cited).
24


In order to determine whether that condition is met, it is necessary to consider all the facts characterising the transaction concerned, including in particular the type of undertaking or business concerned, 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 (judgment of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 26 and the case-law cited).
25


Thus, the degree of importance to be attached to each criterion will necessarily vary according to the activity carried on and the production or operating methods employed in the undertaking, business or part of a business (judgment of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 27 and the case-law cited).
26


It should also be pointed out that the mere fact that one economic entity takes over the economic activity of another economic entity is not a ground for concluding that the latter has retained its identity. The identity of such an entity cannot be reduced to the activity entrusted to it. Its identity emerges from several indissociable factors, such as its workforce, its management staff, the way in which its work is organised, its operating methods or indeed, where appropriate, the operating resources available to it (judgments of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 41, and of 20 July 2017, Piscarreta Ricardo, C‑416/16, EU:C:2017:574, paragraph 43).
27


It follows from the foregoing that the classification as a transfer presupposes a number of factual findings, that question having to be assessed in actual fact by the national court in the light of the criteria laid down by the Court (see, to that effect, judgment of 7 August 2018, Colino Siguënza, C‑472/16, EU:C:2018:646, paragraph 45), as well as the objectives pursued by Directive 2001/23, as set out, inter alia, in recital 3 thereof.
29


When asked whether there had been a transfer of an undertaking within the meaning of Article 1(1) of Directive 77/187, the Court first of all pointed out, in paragraph 39 of the judgment of 25 January 2001, Liikenne (C‑172/99, EU:C:2001:59), that bus transport cannot be regarded as an activity based essentially on manpower, as it requires substantial plant and equipment. The Court added that, accordingly, the fact that the tangible assets used for operating the bus routes were not transferred from the old to the new contractor therefore constitutes a circumstance to be taken into account for the purposes of classification as a transfer of an undertaking. It then held, in paragraph 42 of that judgment, that, since the tangible assets contribute significantly to the performance of that activity, the absence of a transfer to a significant extent from the old to the new contractor of such assets, which are necessary for the proper functioning of the entity concerned, must lead to the conclusion that the entity does not retain its identity. Finally, the Court concluded, in paragraph 43 of that judgment, that, in a situation such as that in the main proceedings, Directive 77/187 does not apply in the absence of a transfer of significant tangible assets from the old to the new contractor.
30


It should, however, be noted that, since in paragraph 39 of the judgment of 25 January 2001, Liikenne (C‑172/99, EU:C:2001:59), the Court was careful to point out that the fact that the tangible assets used for operating the bus routes were not transferred from the old to the new contractor constitutes a circumstance to be taken into account, it cannot be inferred from that point that the takeover of the buses must be regarded in the abstract as the sole determining factor of whether an undertaking whose activity consists in the public transport of passengers by bus has been transferred.
39


In that context, it should be borne in mind that, since a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, such an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task. In those circumstances, the new employer takes over a body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 36 and the case-law cited).