Ellinika Nafpigeia AE v Panagiotis Anagnostopoulos and Others.
Date: 2019-06-13
41


Directive 2001/23 is intended to ensure the continuity of employment relationships existing within an economic entity, irrespective of any change of ownership (judgment of 6 March 2014, Amatori and Others, C‑458/12, EU:C:2014:124, paragraph 51 and the case-law cited).
50


In this connection, attention should be drawn to the general principle of EU law that the application of EU legislation cannot be extended to cover transactions carried out for the purpose of fraudulently or wrongfully obtaining advantages provided for by EU law (see, to that effect, judgment of 26 February 2019, N Luxembourg 1 and Others, C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraphs 96 to 97 and the case-law cited).
51


It follows therefrom that grant of the benefit of the provisions of EU law must be refused where they are relied upon not with a view to achieving the objectives of those provisions but with the aim of benefiting from an advantage in EU law although the conditions for benefiting from that advantage are fulfilled only formally (see, to that effect, judgment of 26 February 2019, N Luxembourg 1 and Others, C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 98).
54


The Court has held that, in order to fall within Directive 2001/23, the transfer must enable the transferee to pursue the activities or certain activities of the transferor in a stable way (see, to that effect, judgment of 2 December 1999, Allen and Others, C‑234/98, EU:C:1999:594, paragraph 37 and the case-law cited).
55


The requirement of stability set by the Court must be understood as referring to a coherent grouping of different factors of production, in particular tangible or intangible assets as well as the necessary staff, enabling the entity transferred to pursue an economic activity (see, to that effect, judgment of 19 September 1995, Rygaard, C‑48/94, EU:C:1995:290, paragraph 21).
57


That could also be the case if the activity of the entity transferred were limited to the completion of certain specific contracts or programmes, without an organised grouping of assets such as those referred to in paragraph 55 of the present judgment being put in place within the transferee’s undertaking (see, to that effect, judgment of 19 September 1995, Rygaard, C‑48/94, EU:C:1995:290, paragraphs 20 to 22).
60


In order to fall within the scope of Directive 2001/23, the transfer must relate to a part of the undertaking making the transfer that constitutes an economic entity, understood as an organised grouping of persons and assets enabling the exercise of an economic activity which pursues a specific objective and which is sufficiently structured and autonomous (see, to that effect, judgment of 13 September 2007, Jouini and Others, C‑458/05, EU:C:2007:512, paragraph 31 and the case-law cited).
61


The entity at issue must also retain its identity following the transfer in order to fall within the scope of Directive 2001/23 (see, to that effect, judgment of 12 February 2009, Klarenberg, C‑466/07, EU:C:2009:85, paragraph 39).
62


Since the identity of an economic entity is constituted by 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 (judgment of 20 July 2017, Piscarreta Ricardo, C‑416/16, EU:C:2017:574, paragraph 43 and the case-law cited), that identity necessarily entails, amongst other matters, functional autonomy.
68


In a similar context, the Court has held in particular that an interpretation of Article 1(1)(b) of Directive 2001/23 which excludes from the scope of that directive a situation in which the tangible assets essential for the performance of the activity transferred have been owned at all times by the transferor would deprive that directive of part of its effectiveness (see judgment of 7 August 2018, Colino Sigüenza, C‑472/16, EU:C:2018:646, paragraph 39 and the case-law cited).