Europièces SA v Wilfried Sanders and Automotive Industries Holding Company SA.
Date: 1998-11-12
23 The Court has indeed held that, owing to the need to provide an interpretation of Community law which will be of use to the national court, it is necessary for that court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based (Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6;  orders in Case C-386/92 Monin Automobiles [1992] ECR I-2049, paragraph 6, and Case C-9/98 Agostini [1998] ECR I-4261, paragraph 4).
24 In this case, however, the case-file forwarded by the national court contains sufficient information to enable the Court to interpret the rules of Community law in respect of the situation arising in the main proceedings. In addition, the legal context of the case is already largely familiar from a previous reference for a preliminary ruling relating to Belgian procedure in the matter of liquidation (Case C-319/94 Dethier Équipement [1998] ECR I-1061).
28 However, it follows from the case-law of the Court that, in deciding whether the Directive applies to the transfer of an undertaking subject to an administrative or judicial procedure, the determining factor to be taken into consideration is the purpose of the procedure in question (Case C-362/89 D'Urso and Others [1991] ECR I-4105, paragraph 26, and Case C-472/93 Spano and Others [1995] ECR I-4321, paragraph 24).  Furthermore, account should also be taken of the form of the procedure in question, in particular in so far as it means that the undertaking continues or ceases trading, and also of the Directive's objectives (Dethier Équipement, cited above, paragraph 25).
29 In Dethier Équipement, paragraph 27, the Court found that, although the objectives of a winding up by the court may sometimes be similar to those of insolvency proceedings, this is not necessarily the case, since liquidation proceedings may be used whenever it is sought to bring a company's activities to an end and whatever the reasons for that course.
31 In particular, in relation to the appointment and duties of the liquidator, the Court found, at paragraph 30 of the judgment in Dethier Équipement, that the situation of an undertaking being wound up by the court differs considerably from that of an undertaking subject to insolvency proceedings and that the reasons which led the Court to rule out application of the Directive in the latter situation may be absent in the case of an undertaking being wound up by the court.
32 The Court therefore found in Dethier Équipement that the Directive applies in the event of the transfer of an undertaking which is being wound up by the court if the undertaking continues to trade.  In particular, it observed at paragraph 31 that where the undertaking continues to trade while it is being wound up by the court, continuity of the business is assured when the undertaking is transferred.  There is accordingly no justification for depriving the employees of the rights which the Directive guarantees them on the conditions it lays down.
35 In the light of the foregoing, it should be noted that the reasons which led the Court to hold in Dethier Équipement that the Directive can apply to transfers that occur while an undertaking is being wound up by the court are all the more pertinent where the undertaking transferred is being wound up voluntarily.
36 The answer to the first part of the question, as recast above, is therefore that Article 1(1) of the Directive is to be interpreted as meaning that the Directive applies where a company in voluntary liquidation transfers all or part of its assets to another company from which the worker then takes his orders which the company in liquidation states are to be carried out.
The worker's right to object to the transfer of his contract of employment or employment relationship
37 In relation to the second part of the question, as recast above, the Court has consistently held  that the Directive is intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the new employer on the same conditions as those agreed with the transferor (see D'Urso and Others, cited above, paragraph 9, and Joined Cases C-132/91, C-138/91 and C-139/91 Katsikas and Others [1992] ECR I-6577, paragraph 21).
38 However, the protection which the Directive is intended to guarantee is redundant where the person concerned decides of his own accord not to continue the employment relationship with the new employer after the transfer.  In that situation the Court has already held that Article 3(1) of the Directive does not apply (Case 105/84 Danmols Inventar [1985] ECR 2639, and Katsikas, cited above, paragraph 30).
39 In the event of the employee deciding of his own accord not to continue with the contract of employment or employment relationship with the transferee, it is for the Member States to determine what the fate of the contract of employment or employment relationship should be.  The Member States may provide, in particular, that in such a case the contract of employment or employment relationship must be regarded as terminated either by the employee or by the employer.  They may also provide that the contract or employment relationship should be maintained with the transferor (Joined Cases C-171/94 and C-172/94 Merckx and Neuhuys [1996] ECR I-1253, paragraph 35).