Jadran Dodič v Banka Koper and Alta Invest.
Date: 2019-05-08
29


It is important to note, as a preliminary matter, that according to settled case-law the scope of Article 1(1)(a) of Directive 2001/23 cannot be appraised solely on the basis of a textual interpretation. On account of the differences between the language versions of that directive and the divergences between the laws of the Member States with regard to the concept of ‘legal transfer’, that concept must be given a sufficiently flexible interpretation in keeping with the objective of that directive, which is, as stated in recital 3 thereof, to provide for the protection of workers in the event of a change of employer (judgments of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 29, and of 20 July 2017, Piscarreta Ricardo, C‑416/16, EU:C:2017:574, paragraph 37).
30


It should be noted, next, that Directive 2001/23 is applicable when the transfer of an undertaking relates to a stable economic activity. The term ‘entity’ referred to in Article 1(1) of that directive thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective (see, to that effect, judgments of 10 December 1998, Hidalgo and Others, C‑173/96 and C‑247/96, EU:C:1998:595, paragraph 25, and of 29 July 2010, UGT-FSP, C‑151/09, EU:C:2010:452, paragraph 26).
33


It should be noted, lastly, that the decisive criterion for establishing the existence of a transfer of an undertaking or of part of an undertaking within the meaning of that provision is the fact that the economic entity retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (judgments of 10 December 1998, Hidalgo and Others, C‑173/96 and C‑247/96, EU:C:1998:595, paragraph 21, and 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).
34


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, were transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees were taken over by the new employer, whether or not its customers were 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 (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).
35


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). In particular, 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).
45


Ultimately, it is for the national court, which has sole jurisdiction to determine the facts in the case before it and to interpret the national legislation, to determine whether or not there was a ‘transfer of part of an undertaking’ within the meaning of Article 1(1) of Directive 2001/23 (see, to that effect, judgments of 7 August 2018, Colino Sigüenza, C‑472/16, EU:C:2018:646, paragraph 45, and of 6 December 2018, Montag, C‑480/17, EU:C:2018:987, paragraph 34).