Federación de Servicios Públicos de la UGT (UGT-FSP) v Ayuntamiento de La Línea de la Concepción, María del Rosario Vecino Uribe and Ministerio Fiscal.
Date: 2010-07-29
22. In accordance with settled case-law, the aim of Directive 2001/23 is to ensure continuity of employment relationships within an economic entity, irrespective of any change of ownership. The decisive criterion for establishing the existence of a transfer within the meaning of that directive is, therefore, whether the entity in question retains its identity, as indicated, in particular, 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 Joined Cases C‑232/04 and C‑233/04 Güney‑Görres and Demir  [2005] ECR I‑11237, paragraph 31 and case-law there cited).
23. The Court has held that, under Directive 77/187, the mere fact that the person to whom the activity is transferred is a public-law body, namely a municipality, cannot be a ground for excluding the existence of a transfer within the scope of that directive (Case C‑175/99 Mayeur  [2000] ECR I‑7755, paragraph 33). The same conclusion is called for under Directive 2001/23.
25. The Court has previously ruled that the fact that the transfer results from unilateral decisions of public authorities rather than from an agreement does not render the directive inapplicable (see Case C‑29/91 Redmond Stichting  [1992] ECR I‑3189, paragraphs 15 to 17, and Case C‑343/98 Collino and Chiappero  [2000] ECR I‑6659, paragraph 34).
26. For Directive 2001/23 to be applicable, the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract (see, inter alia, Case C‑48/94 Rygaard  [1995] ECR I‑2745, paragraph 20). The term ‘entity’ thus refers to an organised grouping of persons and assets enabling the exercise of an economic activity which pursues a specific objective (see, inter alia, Case C‑13/95 Süzen  [1997] ECR I‑1259, paragraph 13; Case C‑340/01 Abler and Others  [2003] ECR I‑14023, paragraph 30; and Güney‑Görres and Demir , cited above, paragraph 32).
27. In order to determine whether the conditions for the transfer of an organised economic entity are met, 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, Spijkers , paragraph 13; Redmond Stichting , paragraph 24; Süzen , paragraph 14; Abler and Others , paragraphs 33 and 34; and Güney-Görres and Demir , paragraphs 33 and 34).
28. Further, the Court has 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; Joined Cases C‑127/96, C‑229/96 and C‑74/97 Hernández Vidal and Others  [1998] ECR I‑8179, paragraph 31, and Joined Cases C‑173/96 and C‑247/96 Hidalgo and Others  [1998] ECR I‑8237, paragraph 31).
29. 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 ( Süzen , paragraph 21; Hernández Vidal and Others , paragraph 32; and Hidalgo and Others , paragraph 32).
30. More specifically, the Court has held, in relation to a cleaning company, that an organised grouping of wage earners who are specifically and permanently assigned to a common task may, in the absence of other factors of production, amount to an economic entity ( Hernández Vidal and Others , paragraph 27).
31. As stated by the Advocate General in point 39 of her Opinion, the fact that, in the main proceedings, there was no transfer of the assets in relation to which the outsourced services were provided by the private undertakings, such as school buildings, streets, parks and civic gardens, has no bearing whatsoever on the issue. The assets which should, where appropriate, be taken into consideration are the plant, machinery and/or equipment that are actually used in order to provide the caretaking, cleaning and maintenance services.
35. By contrast, the question of preservation of autonomy is to be assessed only after the decision has first been made that a transfer, within the meaning of Directive 2001/23, has taken place. That directive is intended to apply to any transfer satisfying the conditions laid down in Article 1(1) of the directive, whether or not the economic entity transferred preserves its autonomy in the transferee’s organisational structure (see Case C‑466/07 Klarenberg  [2009] ECR I‑803, paragraph 50).
38. However, according to settled case-law, it follows from the need for uniform application of Community law and from the principle of equal treatment that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purposes of determining its meaning and scope must as a general rule be given an autonomous and uniform interpretation throughout the Community at European Union level (see, to that effect, latterly, Case C‑433/08 Yaesu Europe  [2009] ECR I‑0000, paragraph 18 and case-law there cited).
39. Further, it is also settled case‑law that the meaning and scope of terms for which European Union law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they form part (see to that effect, inter alia, Case C‑336/03 easyCar  [2005] ECR I‑1947, paragraph 21; Case C‑549/07 Wallentin-Hermann  [2008] ECR I‑11061, paragraph 17; and Case C‑556/07 Commission  v France  [2009] ECR I‑0025 (summary publication), paragraph 50).
40. It should, first, be borne in mind that Directive 2001/23 is intended to safeguard the rights of employees in the event of a change of employer by allowing them to continue to work for the new employer on the same conditions as those agreed with the transferor (see, inter alia, Case 324/86 Foreningen af Arbejdsledere i Danmark  [1988] ECR 739, paragraph 9; Case C‑499/04 Werhof  [2006] ECR I‑2397, paragraph 25; and Case C‑396/07 Juuri  [2008] ECR I‑8883, paragraph 28). The right of employees to be represented is not an exception. It follows that, as a general rule, that representation must not be affected by the transfer.
42. Next, it must be observed that the word ‘autonomy’, according to its usual meaning in everyday language, describes the right of self‑government.
43. Applied to an economic entity, the term means the powers, granted to those in charge of that entity, to organise, relatively freely and independently, the work within that entity in the pursuit of its specific economic activity and, more particularly, the powers to give orders and instructions, to allocate tasks to employees of the entity concerned and to determine the use of assets available to the entity, all without direct intervention from other organisational structures of the employer (‘the organisational powers’).