Celtec Ltd v John Astley and Others.
Date: 2005-05-26
26. As the Court has repeatedly held (see, inter alia, Case C-362/89 D’Urso and Others [1991] ECR I-4105, paragraph 9, and Case C-399/96 Europièces [1998] ECR I-6965, paragraph 37), Directive 77/187 is intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the new employer on the same conditions as those agreed with the transferor. The purpose of the directive is to ensure, as far as possible, that the contract of employment or employment relationship continues unchanged with the transferee, in order to prevent the workers concerned from being placed in a less favourable position solely as a result of the transfer (see Case 287/86 Ny Mølle Kro [1987] ECR 5465, paragraph 25).
27. The rules applicable in the event of a transfer of an undertaking or a business to another employer are thus intended to safeguard, in the interests of the employees and to the greatest possible extent, the existing employment relationships which form part of the economic entity transferred (Joined Cases C-132/91, C-138/91 and C-139/91 Katsikas and Others [1992] ECR I-6577, paragraph 21).
29. Against that background, the reference to ‘date of a transfer’ in Article 3(1) of Directive 77/187 is designed to identify the workers who may rely on the protection established by that provision. That protection therefore covers workers assigned to the unit affected by the transfer whose contract of employment or employment relationship is in force on the ‘date of a transfer’ and not those who have ceased to be employed by the transferor on that date (see Case 19/83 Wendelboe and Others [1985] ECR 457, paragraphs 13 and 15) or those who were engaged by the transferee after that date (see Ny Mølle Kro , cited above, paragraphs 24 to 26).
33. It has been held on several occasions that Directive 77/187 applies where there is a change in the legal or natural person who is responsible for carrying on the business, regardless of whether or not ownership of the undertaking is transferred (see Ny Mølle Kro , cited above, paragraph 12, Case 324/86 Daddy’s Dance Hall  [1988] ECR 739, paragraph 9, and Joined Cases 144/87 and 145/87 Berg and Busschers  [1988] ECR 2559, paragraph 17).
34. To establish whether there is a transfer within the meaning of Directive 77/187, it is necessary to assess whether the unit in question retains its identity, which follows in particular from the fact that its operation is actually continued or resumed by the new employer, with the same or similar economic activities (see Case 24/85 Spijkers [1986] ECR 1119, paragraphs 11, 12 and 15, and Case C‑48/94 Rygaard [1995] ECR I-2745, paragraphs 15 and 16).
37. As the Court has already held, implementation of the rights conferred on employees by Article 3(1) of Directive 77/187 may not be made subject to the consent of either the transferor or the transferee nor to the consent of the employees’ representatives or the employees themselves, with the sole reservation, as regards the workers themselves, that, following a decision freely taken by them, they are at liberty, after the transfer, not to continue the employment relationship with the new employer (see Case 105/84 Danmols Inventar  [1985] ECR 2639, paragraph 16, and D’Urso , cited above, paragraph 11).
38. It follows that, with that sole reservation, contracts of employment or employment relationships existing on the date of the transfer referred to in Article 3(1) of Directive 77/187 between the transferor and the workers assigned to the undertaking transferred are automatically transferred from the transferor to the transferee by the mere fact of the transfer of the undertaking (see D’Urso , cited above, paragraph 20, and Case C-305/94 Rotsart de Hertaing [1996] ECR I-5927, paragraph 18).
39. In addition, in paragraph 26 of the judgment in Rotsart de Hertaing the Court held that the transfer of the contracts of employment and employment relationships pursuant to Article 3(1) of Directive 77/187 necessarily takes place on the same date as that of the transfer of the undertaking and cannot be postponed to another date at the will of the transferor or transferee.
40. In support of that interpretation, the Court observed, first, that the second subparagraph of Article 3(1) of Directive 77/187 gives the Member States the option of providing that, after the date of transfer, the transferor is to be liable, alongside the transferee, for the obligations arising from a contract of employment or employment relationship. Such a rule implies that in any event those obligations are transferred to the transferee on the date of the transfer ( Rotsart de Hertaing , paragraph 23).
41. Secondly, referring to paragraph 14 of its judgment in Berg and Busschers , cited above, in which Article 3(1) of Directive 77/187 was interpreted as meaning that after the date of transfer of the undertaking the transferor is in principle discharged, by virtue of the transfer alone, from its obligations arising under the contract of employment or the employment relationship, the Court found that, given the directive’s objective of protecting workers, that can only be done if the obligations in question are transferred to the transferee as from the date of transfer ( Rotsart de Hertaing , paragraph 24).
42. Finally, the Court considered that to allow the transferor or transferee the possibility of choosing the date from which the contract of employment or employment relationship is transferred would amount to allowing employers to derogate, at least temporarily, from the provisions of Directive 77/187, whereas those provisions are mandatory, and it is thus not possible to derogate from them in a manner unfavourable to employees ( Rotsart de Hertaing , paragraphs 17 and 25).