Dietmar Klarenberg v Ferrotron Technologies GmbH.
Date: 2009-02-12
25. In that regard, it should be borne in mind that, according to settled case‑law, the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of Community law which they need in order to decide the disputes before them (see, inter alia, Case C-380/01 Schneider [2004] ECR I‑1389, paragraph 20; Case C-228/05 Stradasfalti [2006] ECR I‑8391, paragraph 44; and Case C-313/07 Kirtruna and Vigano [2008] ECR I-0000, paragraph 25).
26. In the context of that cooperation, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is, in principle, bound to give a ruling ( Schneider , paragraph 21; Case C-165/03 Längst [2005] ECR I‑5637, paragraph 31; and Kirtruna and Vigano , paragraph 26).
27. It follows that questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Joined Cases C‑202/04 and C‑94/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25; Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 22; and Kirtruna and Vigano , paragraph 27).
28. In that regard, it is clear from the case-law that the presumption of relevance of questions referred for a preliminary ruling cannot be rebutted by the simple fact that one of the parties to the main proceedings contests certain facts, the accuracy of which is not a matter for the Court to determine and on which the delimitation of the subject‑matter of those proceedings depend ( Cipolla and Others , paragraph 26, and van der Weerd and Others , paragraph 23).
37. At the outset, it should be borne in mind that, according to settled case‑law, in interpreting a provision of Community law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, Case C‑301/98 KVS International [2000] ECR I‑3583, paragraph 21; Case C‑53/05 Commission v Portugal [2006] ECR I‑6215, paragraph 20; and Case C‑298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände [2008] ECR I-0000, paragraph 15).
39. Subject to those conditions, the transfer must nevertheless also satisfy the conditions laid down in Article 1(1)(b) of Directive 2001/23 if that directive is to apply: that is to say, it must concern an economic entity – understood by ‘an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary’ – which, following the transfer, retains its ‘identity’.
40. It should at the outset be recalled that, as is clear from recital 8 in the preamble to Directive 2001/23, the above provision was adopted to clarify the concept of transfer in the light of the case-law of the Court (see, inter alia, Case 186/83 Botzen and Others [1985] ECR 519, paragraph 6, and Case 24/85 Spijkers [1986] ECR 1119, paragraph 11). According to that case-law, Directive 2001/23 is intended to ensure the continuity of employment relationships existing within an economic entity, irrespective of any change of ownership and, thus, to protect employees in the event that such a change occurs.
44. As regards, specifically, the factor relating to organisation, although the Court has previously held that that factor contributes to defining an economic entity (see, to that effect, Case C‑13/95 Süzen [1997] ECR I‑1259, paragraph 15; Case C‑234/98 Allen and Others [1999] ECR I‑8643, paragraph 27; Case C‑175/99 Mayeur [2000] ECR I-7755, paragraph 53; and Case C-172/99 Liikenne [2001] ECR I‑745, paragraph 34), it has also held that an alteration in the organisational structure of the entity transferred is not such as to prevent the application of Directive 2001/23 (see, to that effect, Joined Cases C‑171/94 and C‑172/94 Merckx and Neuhuys [1996] ECR I‑1253, paragraphs 20 and 21; Mayeur , paragraph 54; and Case C‑458/05 Jouini and Others [2007] ECR I‑7301, paragraph 36).
46. Having regard to the foregoing, in order to interpret the condition relating to the preservation of the identity of an economic entity, within the meaning of Directive 2001/23, account should be taken of the two elements – as laid down in Article 1(1)(b) of Directive 2001/23 – which, taken together, constitute that identity, and of the objective pursued by that directive, namely the protection of employees.
47. In accordance with those considerations and, in order not to frustrate in part the effectiveness of Directive 2001/23, that condition should be interpreted, not as requiring the retention of the specific organisation imposed by the undertaking on the various elements of production which are transferred, but – as the Advocate General stated in points 42 and 44 of his Opinion – as requiring the retention of a functional link of interdependence, and complementarity, between those elements.
48. The retention of such a functional link between the various elements transferred allows the transferee to use them, even if they are integrated, after the transfer, in a new and different organisational structure, to pursue an identical or analogous economic activity (see, to that effect, Case C‑392/92 Schmidt [1994] ECR I‑1311, paragraph 17).
49. It is for the referring court to ascertain, in the light of the foregoing elements, in the context of a global assessment of all the facts characterising the transaction in question in the main proceedings (see, to that effect, Spijkers , paragraph 13; Case C‑29/91 Redmond Stichting [1992] ECR I‑3189, paragraph 24; Süzen , paragraph 14; and Allen and Others , paragraph 26) whether the identity of the economic entity transferred was preserved.
50. As was pointed out both by the referring court in its order for reference, and by the German Government and the Commission of the European Communities in their observations to the Court, the wording of the first and fourth subparagraphs of Article 6(1) of Directive 2001/23 confirm that, in the mind of the Community legislature, that directive is intended to apply to any transfer satisfying the conditions laid down in Article 1(1) of that directive, whether or not the economic entity transferred retains its autonomy in the transferee’s organisational structure.
52. In that regard, it should be recalled that the Court has already held that an obligation to terminate contracts of employment governed by private law in the case of the transfer of an economic activity to a legal person governed by public law constitutes, in accordance with Article 4(2) of Directive 2001/23, a substantial change in working conditions to the detriment of the employee and resulting directly from the transfer, with the result that termination of such contracts of employment must, in such circumstances, be regarded as resulting from the action of the employer ( Mayeur , paragraph 56). Likewise, it must be held that the impossibility, which may arise in the event of a transfer, of assigning to an employee, in the organisational structure put in place by the transferee, a position of employment which is equivalent to that which that employee occupied under the previous owner could, if it leads to a substantial change in working conditions to the detriment of that employee, be assimilated with termination of the employment contract resulting from the action of the employer, for the purposes of that provision.