Foreningen af Arbejdsledere i Danmark v Daddy's Dance Hall A/S.
Date: 1988-02-10
9 AS THE COURT HAS ALREADY HELD, MOST RECENTLY IN THE JUDGMENT OF 17 DECEMBER 1987 ( CASE 287/86 NY MOELLE KRO (( 1987 )) ECR 5465 ), THAT THE PURPOSE OF DIRECTIVE 77/187/EEC IS 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 . THE DIRECTIVE IS THEREFORE APPLICABLE WHERE, FOLLOWING A LEGAL TRANSFER OR MERGER, THERE
IS A CHANGE IN THE NATURAL OR LEGAL PERSON WHO IS RESPONSIBLE FOR CARRYING ON THE BUSINESS AND WHO BY VIRTUE OF THAT FACT INCURS THE OBLIGATIONS OF AN EMPLOYER VIS-A-VIS EMPLOYEES OF THE UNDERTAKING, REGARDLESS OF WHETHER OR NOT OWNERSHIP OF THE UNDERTAKING IS TRANSFERRED .
14 AS WAS STRESSED ABOVE, THE PURPOSE OF DIRECTIVE 77/187/EEC IS TO ENSURE THAT THE RIGHTS RESULTING FROM A CONTRACT OF EMPLOYMENT OR EMPLOYMENT RELATIONSHIP OF EMPLOYEES AFFECTED BY THE TRANSFER OF AN UNDERTAKING ARE SAFEGUARDED . SINCE THIS PROTECTION IS A MATTER OF PUBLIC POLICY, AND THEREFORE INDEPENDENT OF THE WILL OF THE PARTIES TO THE CONTRACT OF EMPLOYMENT, THE RULES OF THE DIRECTIVE, IN PARTICULAR THOSE CONCERNING THE PROTECTION OF WORKERS AGAINST DISMISSAL BY REASON OF THE TRANSFER, MUST BE CONSIDERED TO BE MANDATORY, SO THAT IT IS NOT POSSIBLE TO DEROGATE FROM THEM IN A MANNER UNFAVOURABLE TO EMPLOYEES .
15 IT FOLLOWS THAT EMPLOYEES ARE NOT ENTITLED TO WAIVE THE RIGHTS CONFERRED ON THEM BY THE DIRECTIVE AND THAT THOSE RIGHTS CANNOT BE RESTRICTED EVEN WITH THEIR CONSENT . THIS INTERPRETATION IS NOT AFFECTED BY THE FACT THAT, AS IN THIS CASE, THE EMPLOYEE OBTAINS NEW BENEFITS IN COMPENSATION FOR THE DISADVANTAGES RESULTING FROM AN AMENDMENT TO HIS CONTRACT OF EMPLOYMENT SO THAT, TAKING THE MATTER AS A WHOLE, HE IS NOT PLACED IN A WORSE POSITION THAN BEFORE .
16 HOWEVER, AS THE COURT HELD IN ITS JUDGMENT OF 11 JULY 1985 IN CASE 105/84 FORENINGEN AF ARBEJDSLEDERE I DANMARK V DANMOLS INVENTAR (( 1985 )) ECR 2639, DIRECTIVE 77/187/EEC IS INTENDED TO ACHIEVE ONLY PARTIAL HARMONIZATION, ESSENTIALLY BY EXTENDING THE PROTECTION GUARANTEED TO WORKERS INDEPENDENTLY BY THE LAWS OF THE INDIVIDUAL MEMBER STATES TO COVER THE CASE WHERE AN UNDERTAKING IS TRANSFERRED . IT IS NOT INTENDED
TO ESTABLISH A UNIFORM LEVEL OF PROTECTION THROUGHOUT THE COMMUNITY ON THE BASIS OF COMMON CRITERIA . THUS THE DIRECTIVE CAN BE RELIED ON ONLY 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 .
17 CONSEQUENTLY, IN SO FAR AS NATIONAL LAW ALLOWS THE EMPLOYMENT RELATIONSHIP TO BE ALTERED IN A MANNER UNFAVOURABLE TO EMPLOYEES IN SITUATIONS OTHER THAN THE TRANSFER OF AN UNDERTAKING, IN PARTICULAR AS REGARDS THEIR PROTECTION AGAINST DISMISSAL, SUCH AN ALTERNATIVE IS NOT PRECLUDED MERELY BECAUSE THE UNDERTAKING HAS BEEN TRANSFERRED IN THE MEANTIME AND THE AGREEMENT HAS THEREFORE BEEN MADE WITH THE NEW EMPLOYER . SINCE BY VIRTUE OF ARTICLE 3 ( 1 ) OF THE DIRECTIVE THE TRANSFEREE IS SUBROGATED TO THE TRANSFEROR' S RIGHTS AND OBLIGATIONS UNDER THE EMPLOYMENT RELATIONSHIP, THAT RELATIONSHIP MAY BE ALTERED WITH REGARD TO THE TRANSFEREE TO THE SAME EXTENT AS IT COULD HAVE BEEN WITH REGARD TO THE TRANSFEROR, PROVIDED THAT THE TRANSFER OF THE UNDERTAKING ITSELF MAY NEVER CONSTITUTE THE REASON FOR THAT AMENDMENT .