Luigi Spano and others v Fiat Geotech SpA and Fiat Hitachi Excavators SpA.
Date: 1995-12-07
15 As regards the first of those arguments, it should be recalled that the Court has consistently held that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the particular facts of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. A request from a national court for a preliminary ruling may be rejected if it is plain that the interpretation of Community law or the examination of the validity of a Community rule requested by that court has no bearing on the actual facts or subject-matter of the case before the national court (see, in particular, the judgment in Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR I-711, paragraph 17). In the present case, the interpretation of Community law requested by the national court is not manifestly unconnected with the subject-matter of the main proceedings, since it affects the application, in this litigation, of a provision of national law on which the defendants in those proceedings rely.
16 As regards the second of those arguments, it is sufficient to recall that the Court has also consistently held (see, in particular, paragraph 13 of the judgment in Eurico Italia, cited above) that, in view of the distribution of functions between itself and the national courts, it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organization and procedure of the courts.
17 As regards the third argument, which reflects the doubts expressed by the Commission in its observations on the applicability of the directive to the issues in the main proceedings, it should be noted that, whilst the Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual (see, in particular, the judgment in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20), it has also held that, when applying national law, whether adopted before or after the directive, the national court called upon to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty (judgment in Faccini Dori, paragraph 26).
21 The plaintiffs in the main action and the Commission maintain that undertakings in a situation of that kind fall within the scope of the directive. They contend that, according to the case-law of the Court, and particularly the judgment in Case C-362/89 D' Urso and Others [1991] ECR I-4105, the decisive factor in determining whether a transfer effected in the context of an administrative or judicial procedure concerning an undertaking falls within the scope of the directive is the purpose of the procedure in question. They submit that, if the object of the procedure is the liquidation of the transferor' s assets, the directive does not apply. If, on the other hand, the object of the procedure is the continuation of the transferor' s business, the directive does apply. The plaintiffs in the main action and the Commission consequently maintain that undertakings declared to be in critical difficulties, within the meaning of the 1977 Law, are those whose financial and asset situation is less serious than that of undertakings subject to a creditors' arrangement procedure aimed at the liquidation of their assets, and which may be able to continue trading.
22 Fiat Geotech and Fiat Hitachi maintain for their part that, particularly in its judgments in Case 135/83 Abels [1985] ECR 469 and D' Urso, cited above, the Court has excluded from the scope of the directive undertakings which are subject to procedures for the satisfaction of interests other than those of the transferor or the transferee, such as those of the creditors of the undertaking. They contend that undertakings in critical difficulties, within the meaning of the 1977 Law, fulfil that criterion, since they are not transferred merely pursuant to a voluntary agreement between the transferor and the transferee: an administrative measure and the agreement of the trade unions are also involved.
23 Those companies argue in the alternative that Article 47(5) of the 1990 Law constitutes a provision more favourable to employees, within the meaning of Article 7 of the directive. They maintain that Article 47(5) of the 1990 Law encourages the transfer of undertakings and limits dismissals, thereby preserving employees' jobs in accordance with the objectives of the directive.
24 The Court has held that, for the purposes of determining whether the transfer of an undertaking subject to an administrative or judicial procedure falls within the scope of the directive, the determining factor to be taken into consideration is the purpose of the procedure in question (judgment in D' Urso, paragraph 26).
25 As the Commission and the plaintiffs in the main proceedings maintain, it is clear from the case-law of the Court that the directive does not apply to transfers taking place in proceedings for the liquidation of the transferor' s assets, such as insolvency proceedings (see the judgment in Abels, cited above) or compulsory administrative liquidation under Italian Law (see the judgment in D' Urso), but it does apply to the transfer of an undertaking subject to a procedure aimed at ensuring the continuation of its business, such as the "surséance van betaling" procedure under Netherlands Law (judgment in Abels) or the special administration procedure under Italian Law in respect of large undertakings in critical difficulties, where it has been decided that the undertaking is to continue trading for so long as that decision remains in effect (see the judgment in D' Urso).
26 It appears from the order for reference and the written replies to the Court' s questions that the purpose of a declaration that an undertaking is in critical difficulties is to enable the undertaking to retrieve its economic and financial situation, but above all to preserve jobs. A declaration by the CIPI that an undertaking is in critical difficulties, which is based on assessments of both an economic and financial nature and a social nature, is thus conditional on the submission of a recovery plan, which must include measures to resolve the employment problems. Such a declaration allows the undertaking to have the CIGS temporarily assume responsibility for the remuneration of all or some of its employees.
27 The national court states that the undertakings declared by the CIPI to be in critical difficulties are undertakings whose economic situation is such as to permit the continuation, without any significant hiatus, of their production activities, and who have real prospects of recovery.
28 Consequently, an undertaking found to be in critical difficulties is subject to a procedure which, far from being aimed at the liquidation of the undertaking, is designed on the contrary to promote the continuation of its business with a view to its subsequent recovery.
29 In particular, by contrast with insolvency proceedings, the procedure whereby an undertaking is declared to be in critical difficulties does not involve any judicial supervision or any measure whereby the assets of the undertaking are put under administration, and does not provide for any suspension of payments.
30 The economic and social objective pursued by that procedure cannot explain or justify the circumstance that, when all or part of the undertaking concerned is transferred, its employees lose the rights which the directive confers on them (see, by analogy, the judgment in D' Urso, paragraph 32).
31 Nor does the fact, relied on in their observations by the defendants in the main action, that the application of Article 47(5) of the 1990 Law is conditional on the employees' representatives agreeing to the preservation, even in part, of jobs cause the transfer of the undertaking to fall outside the rules laid down by the directive.
32 The Court has previously held, in paragraph 11 of its judgment in D' Urso, that those rules had to be regarded as mandatory, so that it was not possible to derogate from them in a manner unfavourable to employees, and that the implementation of the rights conferred on employees by the directive may not therefore be made subject to the consent of either the transferor or the transferee nor the consent of the employees' representatives or the employees themselves, with the sole reservation, as regards the employees themselves, that, following a decision freely taken by them, they are at liberty, after the transfer, not to continue in the employment relationship with the new employer. As the Court stated in paragraph 17 of that judgment, the rules of the directive apply to all parties, including the employees' trade-union representatives, who may not derogate from them by means of agreements concluded with the transferor or the transferee.
33 Lastly, a provision such as Article 47(5) of the 1990 Law, the effect of which is to deprive the employees of an undertaking of the guarantees afforded to them by the directive, cannot be regarded as a provision which is more favourable to employees, within the meaning of Article 7 of that directive.
34 Indeed, the Court has previously rejected a similar argument in paragraphs 18 and 19 of its judgment in D' Urso. In that case it was argued that an interpretation of the directive having the effect of preventing surplus employees of the undertaking from being maintained in the transferor' s service could be less favourable to those employees either because a potential transferee might be dissuaded from acquiring the undertaking if he had to retain the surplus personnel of the undertaking transferred or because the surplus personnel would be dismissed and thus lose the advantages which they might have derived from the continuance of their employment relationships with the transferor.