CLECE SA v María Socorro Martín Valor and Ayuntamiento de Cobisa.
Date: 2011-01-20
26. The Court has therefore held that the mere fact that the person to whom the activity is transferred is a public-law body, in this case a municipal authority, cannot be a ground for excluding the existence of a transfer within the scope of that directive (see Case C‑175/99 Mayeur  [2000] ECR I‑7755, paragraphs 29, 33 and 34, and Case C‑151/09 UGT-FSP [2010] ECR I‑0000, paragraph 23).
29. It is clear from the settled case-law that the scope of that provision cannot be determined 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, the Court has given that concept a sufficiently flexible interpretation in keeping with the objective of that directive, which is, as stated in recital 3 of the preamble, to safeguard employees in the event of a transfer of their undertaking (see, to that effect, Case C‑458/05 Jouini and Others  [2007] ECR I‑7301, paragraph 24 and case-law cited).
30. The Court has therefore held that Directive 77/187, codified by Directive 2001/23, is applicable wherever, in the context of contractual relations, there is a change in the legal or moral person who is responsible for carrying on the undertaking and who incurs the obligations of an employer towards employees of the undertaking (see Joined Cases C‑171/94 and C‑172/94 Merckx and Neuhuys  [1996] ECR I‑1253, paragraph 28, and Joined Cases C‑127/96, C‑229/96 and C‑74/97 Hernández Vidal and Others  [1998] ECR I‑8179, paragraph 23).
31. Similarly, the Court has held that Directive 77/187 is capable of applying to a situation in which an undertaking, which used to have recourse to another undertaking for the cleaning of its premises or part of them, decides to terminate its contract with that other undertaking and in future to carry out that work itself (see Hernández Vidal and Others , paragraph 25).
34. In order to determine whether such an entity retains its identity, it is necessary to consider all the facts characterising the transaction in question, 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 (see, inter alia, Case 24/85 Spijkers [1986] ECR 1119, paragraph 13; Case C‑29/91 Redmond Stichting  [1992] ECR I‑3189, paragraph 24; Case C‑13/95 Süzen  [1997] ECR I‑1259, paragraph 14; and Case C‑340/01 Abler and Others  [2003] ECR I‑14023, paragraph 33).
35. The Court has previously stated that an economic entity is able, in certain sectors, to function without any significant tangible or intangible assets, and therefore the maintenance of the identity of such an entity following the transaction affecting it cannot, logically, depend on the transfer of such assets (see Süzen , paragraph 18; Hernández Vidal and Others , paragraph 31; and UGT-FSP , paragraph 28).
36. The Court has accordingly held that inasmuch as, in certain labour-intensive sectors, 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 (see Süzen , paragraph 21; Hernández Vidal and Others , paragraph 32; Joined Cases C‑173/96 and C‑247/96 Hidalgo and Others  [1998] ECR I‑8237, paragraph 32; Case C‑51/00 Temco  [2002] ECR I‑969, paragraph 33; and UGT-FSP , paragraph 29).
39. It is true that, according to the Court’s case-law, cleaning services, such as those at issue in the dispute in the main proceedings, can be regarded as an activity essentially based on manpower (see, to that effect, Hernández Vidal and Others , paragraph 27; Hidalgo and Others , paragraph 26; and Jouini and Others , paragraph 32) and, consequently, a group of employees who are permanently assigned to the common task of cleaning may, in the absence of other factors of production, amount to an economic entity (see, to that effect, Hernández Vidal and Others , paragraph 27). That entity’s identity must nonetheless be retained after the transfer in question.
41. However, the mere fact that the activity carried out by CLECE and that carried out by the Ayuntamiento de Cobisa are similar, even identical, does not lead to the conclusion that an economic entity has retained its identity. 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 operational resources available to it (see, to that effect, Süzen , paragraph 15; Hernández Vidal and Others , paragraph 30; and Hidalgo and Others , paragraph 30). In particular, the identity of an economic entity, such as that forming the subject of the dispute in the main proceedings, which is essentially based on manpower, cannot be retained if the majority of its employees are not taken on by the alleged transferee.