Lorenzo Amatori and Others v Telecom Italia SpA and Telecom Italia Information Technology Srl.
Date: 2014-03-06
27. Furthermore, whether the concept of ‘pre-existence’ is unknown to Directive 2001/23 does not exceed the jurisdiction of the Court, because it does not relate to the admissibility of that question, but concerns its substance (see, by analogy, Joined Cases C‑457/11 to C‑460/11 VG Wort and Others  [2011] ECR, paragraph 46).
29. As a preliminary point, it must be recalled that Directive 2001/23 is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the business who incurs the obligations of an employer towards employees of the undertaking (see, Case C‑463/09 CLECE [2011] ECR I‑95, paragraph 30 and the case-law cited).
30. According to settled case-law, in order to determine whether there is a ‘transfer’ of the undertaking within the meaning of Article 1(1) of Directive 2001/23, the decisive criterion is whether the entity in question keeps its identity after being taken over by the new employer (Case C‑108/10 Scattolon  [2011] ECR I‑7491, paragraph 60 and the case-law cited).
31. That transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract. Any organised grouping of persons and of assets enabling the exercise of an economic activity pursuing a specific objective, and which is sufficiently structured and autonomous, constitutes such an entity (see Joined Cases C‑127/96, C‑229/96 and C‑74/97 Hernández Vidal and Others  [1998] ECR I‑8179, paragraphs 26 and 27; Case C‑458/05 Jouini and Others  [2007] ECR I‑7301, paragraph 31; and Scattolon , paragraph 42).
32. It follows, for the purpose of the application of that directive, that the economic entity concerned must have a sufficient degree of functional autonomy, the concept of autonomy referring to the powers granted to those in charge of the group of workers concerned, to organise, relatively freely and independently, the work within that group and, more particularly, to give instructions and allocate tasks to subordinates within the group, without direct intervention from other organisational structures of the employer ( Scattolon , paragraph 51 and the case-law cited).
33. That finding is supported by the first and fourth subparagraphs of Article 6(1) of Directive 2001/23, relating to the representation of workers, according to which that directive is intended to apply to any transfer satisfying the conditions laid down in Article 1(1) thereof, whether or not the economic entity transferred retains its autonomy in the transferee’s organisational structure (C‑466/07 Klarenberg  [2009] ECR I‑803, paragraph 50).
41. That directive is intended to achieve only partial harmonisation of the area in question. It is not intended to establish a uniform level of protection throughout the European Union on the basis of common criteria, but to ensure that the employee is protected in his relations with the transferee to the same extent as he was in his relations with the transferor under the legal rules of the Member State concerned (Case C‑209/91 Watson Rask and Christensen [1992] ECR I‑5755, paragraph 27, and Case C‑4/01 Martin and Others  [2003] ECR I‑12859, paragraph 41).
48. Next, it must be recalled that the Court has previously held that Directive 77/187, as amended by Directive 98/50, which was repealed and replaced in substance by Directive 2001/23, is intended to cover any legal change in the person of the employer if the other conditions it lays down are also met and that it can, therefore, apply to a transfer between two subsidiary companies in the same group, which are distinct legal persons each with specific employment relationships with their employees. The fact that the companies in question not only have the same ownership but also the same management and the same premises and that they are engaged in the same works makes no difference in this regard (Case C‑234/98 Allen and Others  [1999] ECR I‑8643, paragraph 17).
49. Nothing justifies a parent company’s and its subsidiaries’ uniform conduct on the market having greater importance in the application of the directive than the formal separation between those companies which have distinct legal personalities. That outcome, which would exclude transfers between companies in the same group from the scope of the directive, would be precisely contrary to the directive’s aim, which is, according to the Court, to ensure, so far as possible, that the rights of employees are safeguarded in the event of a change of employer by allowing them to remain in employment with the new employer on the terms and conditions agreed with the transferor ( Allen and Others , paragraph 20).
51. Finally, a different interpretation would enable the objective of that directive which aims, according to the settled case-law of the Court, to ensure the continuity of employment relationships existing within an economic entity irrespective of any change of ownership to be circumvented with ease ( Klarenberg , paragraph 40 and the case-law cited).