Didier Mayeur v Association Promotion de l'information messine (APIM).
Date: 2000-09-26
22 The concept of a public service of an administrative nature is a concept of French administrative law which the Court has no jurisdiction to interpret when giving a ruling under Article 234 EC. The Court can only provide the national tribunal with an interpretation of Community law which may assist it in deciding the case in the main proceedings.
28 It should be noted that, in paragraph 14 of Henke, cited above, the Court held that the reorganisation of structures of the public administration or the transfer of administrative functions between public administrative authorities does not constitute a transfer of an undertaking within the meaning of Directive 77/187. From this the Court inferred, in paragraphs 17 and 18 of that judgment, that the concept of a transfer of an undertaking, business or part of a business, within the meaning of Article 1(1) of that directive, does not apply to the transfer of administrative functions involving the exercise of public authority from a municipality to an administrative collectivity.
29 On the other hand, the transfer of an economic activity from a legal person governed by private law to a legal person governed by public law does in principle fall within the scope of Directive 77/187.
30 In the first place, Directive 77/187 applies, by virtue of Article 1(1), to the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger.
31 Second, Directive 77/187 defines, in Article 2, the transferee as being any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), becomes the employer in respect of the undertaking, business or part of the business.
32 The Court has consistently held that the concept of an undertaking, within the meaning of Article 1(1) of Directive 77/187, covers any stable economic entity, that is to say, an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective (see, most recently, Case C-234/98 Allen and Others v Amalgamated Construction [1999] ECR I-8643, paragraph 24). Such a concept is independent of the legal status of that entity and the manner in which it is financed.
33 Articles 1(1) and 2(b) of Directive 77/187 do not therefore permit the transfer of an economic activity from a legal person governed by private law to a legal person governed by public law to be excluded from the scope of Directive 77/187 solely on the ground that the person to whom the activity is transferred is a public-law body. Only the reorganisation of structures of the public administration or the transfer of administrative functions between public administrative authorities are excluded, by the judgment in Henke, from the scope of that directive.
34 That interpretation, which is consistent with the objectives of Directive 77/187, namely to ensure the continuity of employment relations existing within an economic entity, irrespective of any change in its ownership, is further corroborated by Article 1(1)(c) of Directive 77/187, as amended by Directive 98/50, which is not applicable to the dispute in the main proceedings in this case. That provision states that Directive 77/187 is to apply to public undertakings engaged in economic activities, but that an administrative reorganisation of public administrative authorities, or the transfer of administrative functions between public administrative authorities, is not a transfer within the meaning of the directive.
35 In the present case, contrary to the contention of the French Government, the transfer of activities here in question does not constitute a reorganisation of structures of the public administration or a transfer of administrative functions between public administrative authorities within the meaning of Henke.
37 First, it is clear from the order for reference that APIM was a private non-profit-making association which had legal personality separate from that of the City of Metz. The fact that APIM was created on the initiative of the Mayor of that city, that it was directed by elected representatives, and that its resources were derived in the main from municipal grants does not alter the fact that APIM was an entity distinct from that which took over its activities (see, in this regard, paragraph 17 of the judgment in Allen and Others, cited above).
40 The transfer of an economic activity such as that carried out by APIM cannot be excluded from the scope of Directive 77/187 solely on the ground that it is carried out for a non-profit-making purpose or in the public interest. The Court has already held that the directive is applicable to the transfer of an activity providing help to drug addicts carried out by a foundation, a non-profit-making legal person governed by private law (Case C-29/91 Redmond Stichting v Bartol and Others [1992] ECR I-3189), and to the transfer of an activity consisting in the provision of home help for disadvantaged persons, awarded by a public-law body to a legal person governed by private law (Joined Cases C-173/96 and C-247/96 Sánchez Hidalgo and Others [1998] ECR I-8237).
44 It should be noted in this regard that the aim of Directive 77/187 is to ensure continuity of employment relationships within an economic entity, irrespective of any change of ownership. The decisive test for establishing the existence of a transfer within the meaning of Directive 77/187 is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (Case 24/85 Spijkers v Benedik [1986] ECR 1119, paragraph 11, and, most recently, Allen and Others, paragraph 23).
45 While the lack of a contractual link between the transferor and the transferee may point to the absence of a transfer within the meaning of Directive 77/187, it cannot be conclusive in that regard (see, to this effect, Case C-13/95 Süzen v Zehnacker Gebäudereinigung [1997] ECR I-1259, paragraph 11, and Sánchez Hidalgo and Others, cited above, paragraph 22).
46 Directive 77/187 is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person who is responsible for carrying on the business and who thereby incurs the obligations of an employer towards employees of the undertaking (Case 324/86 Tellerup v Daddy's Dance Hall [1988] ECR 739, paragraph 9, and Süzen, cited above, paragraph 12).
49 The mere fact, not disputed in the main proceedings, that the activity engaged in by the old and the new employer is similar does not justify the conclusion that an economic entity has been transferred. An entity cannot be reduced to the activity entrusted to it. Its identity also emerges from other factors, such as its workforce, its managerial staff, the way in which its work is organised, its operating methods or indeed, where appropriate, the operational resources available to it (see Süzen, paragraph 15, and Sánchez Hidalgo and Others, paragraph 30).
52 In order to determine whether the conditions for the existence of a transfer have been met, and in particular whether the entity in question in the main proceedings retained its identity after being taken over by the City of Metz, it is for the national tribunal to take into consideration all the facts which go to characterise the transaction in question, including in particular the type of undertaking or business, 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 goodwill is transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities are suspended. However, those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see, in particular, Spijkers, paragraph 13, Süzen, paragraph 14, Sánchez Hidalgo and Others, paragraph 29, and Allen and Others, paragraph 26).
53 As the Advocate General notes in paragraph 102 of his Opinion, it cannot be ruled out that, in certain circumstances, factors such as organisation, operation, financing, management and the applicable legal rules identify an economic entity in such a way that any alteration of those factors resulting from transfer of that entity would lead to a change in its identity.
54 That, however, does not appear to be the situation in the case in the main proceedings here. First, it is clear from the order for reference that the City of Metz took over in its entirety and pursued the activity of APIM while continuing, in the same form, to produce and distribute the magazine Vivre à Metz; second, APIM was already in reality operating, according to the French Government, as a public service entrusted with a task in the general interest.
56 As regards any obligation, prescribed by national law, to terminate contracts of employment governed by private law in the case of transfer of an activity to a legal person governed by public law, such an obligation constitutes, in accordance with Article 4(2) of Directive 77/187, a substantial change in working conditions to the detriment of the employee resulting directly from the transfer, with the result that termination of such contracts of employment must, in such circumstances, be regarded as resulting from the action of the employer.