Luís Manuel Piscarreta Ricardo v Portimão Urbis EM SA and Others.
Date: 2017-07-20
30


In the present case, the operation at issue in the main proceedings entailed the transfer of the activities of a municipal undertaking, in part, to a municipality and, in part, to another municipal undertaking.
31


In that regard, it must first be stated that the fact that, in that operation, the transferor was a municipal undertaking and the transferees were a municipality and another municipal undertaking does not, in itself, prevent Directive 2001/23 from applying to the operation.
32


Indeed, the Court has already held that the fact that the transferee is a public-law body cannot be a ground for excluding the existence of a transfer within the scope of Directive 2001/23, whether that body is a public undertaking responsible for a public service (see, to that effect, judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraphs 25 and 26) or a municipal authority (see, to that effect, judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 26 and the case-law cited).
33


Next, it is apparent from the wording of Article 1(1)(c) of Directive 2001/23 that, in order for the directive to apply, the transfer must concern an entity engaged in economic activities whether or not for gain.
34


The Court has made clear in that regard that the notion of economic activity encompasses any activity consisting in offering goods or services on a given market. Activities which fall within the exercise of public powers are excluded as a matter of principle from classification as economic activity. However, services which are carried out in the public interest and without a profit motive and are in competition with those offered by operators who seek to make a profit may be classified as economic activities for the purposes of Article 1(1)(c) of Directive 2001/23 (see, to that effect, judgment of 6 September 2011, Scattolon, C‑108/10, EU:C:2011:542, paragraphs 43 and 44 and the case-law cited).
37


In that regard it is clear from settled case-law of the Court that the scope of that provision cannot be determined solely on the basis of a textual interpretation. On account of the differences between the language versions of Directive 2001/23 and the divergences between the laws of the Member States with regard to the concept of legal transfer, the Court has given that concept a sufficiently flexible interpretation in keeping with the objective of that directive, which is, as stated in recital 3 thereof, to provide for the protection of employees in the event of a change of employer (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 29 and the case-law cited).
38


The Court has thus held that the fact that the transfer results from unilateral decisions of public authorities rather than from an agreement does not render Directive 2001/23 inapplicable (judgment of 29 July 2010, UGT-FSP, C‑151/09, EU:C:2010:452, paragraph 25 and the case-law cited).
40


Finally, under Article 1(1)(b) of Directive 2001/23, for the directive to apply, the transfer must concern an economic entity which retains its identity after being taken over by the new employer (see, judgment of 6 March 2014, Amatori and Others, C‑458/12, EU:C:2014:124, paragraph 30).
41


It is necessary in this regard to consider all the facts characterising the transaction at issue in the main proceedings, including in particular the type of undertaking or business in question, 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 (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 32).
42


It follows that the degree of importance to be attached to any one of those criteria will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business (see, to that effect, judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraphs 33 and 34 and the case-law cited).
43


The Court has also pointed out that the mere fact that one economic entity takes over the economic activity of another entity is not a ground for concluding that the latter has retained its identity. The identity of such an entity cannot be reduced to the activity entrusted to it. Its identity emerges from 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 (see, to that effect, judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 41).
44


The Court has also held that what is relevant for the purpose of finding that the identity of the transferred entity has been preserved is not the retention of the specific organisation imposed by the employer on the various elements of production which are transferred, but rather the retention of the functional link of interdependence and complementarity between those elements. The retention of a functional link of that kind 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 (judgments of 12 February 2009, Klarenberg, C‑466/07, EU:C:2009:85, paragraphs 46 to 48, and of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraphs 33 and 34). It follows that the fact that an economic entity is wound up and its activities transferred to two other entities does not, in itself, preclude the applicability of Directive 2001/23.
46


It follows from all the foregoing that Article 1(1) of Directive 2001/23 must be interpreted to the effect that, where a municipal undertaking, whose sole shareholder is a municipality, is wound up by a decision of the municipality’s executive body and its activities are transferred in part to the municipality to be carried on directly by it and in part to another municipal undertaking re-formed for that purpose, whose sole shareholder is also that same municipality, that situation falls within the scope of the directive, provided that the identity of the undertaking in question is preserved after the transfer, which is a matter for the referring court to determine.
56


In that regard, it should be borne in mind that, according to settled case-law of the Court, questions on the interpretation of EU 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 give a ruling on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation 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 enable it to give a useful answer to the questions submitted to it (judgment of 16 July 2015, Sommer Antriebs- und Funktechnik, C‑369/14, EU:C:2015:491, paragraph 32 and the case-law cited).