Renato Collino and Luisella Chiappero v Telecom Italia SpA.
Date: 2000-09-14
20 It is indeed correct that, in accordance with settled case-law, a directive may not of itself impose obligations on a private individual and may not therefore be relied on as such against such a person (see, inter alia, Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 20, and Case C-192/94 El Corte Inglés v Blázquez Rivero [1996] ECR I-1281, paragraph 15).
21 However, when applying national law, whether adopted before or after the directive, the national court having to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the EC Treaty (now the third paragraph of Article 249 EC) (see, inter alia, Faccini Dori, paragraph 26, and Case C-63/97 BMW v Deenik [1999] ECR I-905, paragraph 22).
22 Moreover, where persons are able to rely on a directive as against the State they may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law (see, inter alia, Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 49, and Case C-188/89 Foster and Others v British Gas [1990] ECR I-3313, paragraph 17).
23 Thus the Court has held that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between private individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied on (Foster and Others, paragraph 20).
30 First, it is settled case-law that the Directive applies to all transfers of entities which are engaged in economic activities, whether or not they operate with a view to profit (see, in particular, Case C-382/92 Commission v United Kingdom [1994] ECR I-2435, paragraphs 44 to 46).
31 On the other hand, 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 the Directive. In those cases the transfer concerns activities involving the exercise of public authority (Case C-298/94 Henke v Gemeinde Schierke and Verwaltungsgemeinschaft Brocken [1996] ECR I-4989, paragraphs 14 and 17).
32 So, the fact that the service transferred was the subject of a concession by a public body such as a municipality cannot exclude application of the Directive if the activity in question does not involve the exercise of public authority (Joined Cases C-173/96 and C-247/96 Sánchez Hidalgo and Others [1998] ECR I-8237, paragraph 24).
33 The Court has held - in the context of competition law, admittedly, but the ruling may be applied to the present case - that the management of public telecommunications equipment and the placing of such equipment at the disposal of users on payment of a fee amount to a business activity (Case 41/83 Italy v Commission [1985] ECR 873, paragraph 18, and, impliedly, Joined Cases C-271/90, C-281/90 and C-289/90 Spain and Others v Commission [1992] ECR I-5833). Moreover, the circumstance that the operation of the public telecommunications network is entrusted to a body forming part of the public administration cannot prevent that body from being classified as a public undertaking (Case C-69/91 Decoster [1993] ECR I-5335, paragraph 15, and Case C-92/91 Taillandier [1993] ECR I-5383, paragraph 14).
34 Second, the circumstance that the transfer results from unilateral decisions of the public authority rather than from an agreement does not render the directive inapplicable (Case C-29/91 Redmond Stichting v Bartol [1992] ECR I-3189, paragraphs 15 to 17). The Court thus held that the Directive applies in a situation in which a public authority decides to terminate the subsidy paid to one legal person engaged in assisting drug addicts, as a result of which the activities of that legal person are fully and definitively terminated, and to transfer it to another legal person with a similar aim (Redmond Stichting, paragraph 21).
35 In those circumstances, a transfer such as that in the main proceedings falls within the material scope of the Directive.
36 It should be noted, however, that the Directive may be relied upon only by persons who are protected in the Member State concerned as workers under national labour law (Danmols Inventar, paragraphs 27 and 28, Redmond Stichting, paragraph 18, and Sánchez Hidalgo, paragraph 24).
37 That interpretation derives from the fact that the Directive is intended to achieve only partial harmonisation in this area, 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. Its aim is therefore to ensure, as far as possible, that the contract of employment or the employment relationship continues unchanged with the transferee, so that the employees affected by the transfer of the undertaking are not placed in a less favourable position solely as a result of the transfer. It is not, however, intended to establish a uniform level of protection throughout the Community on the basis of common criteria (Danmols Inventar, paragraph 26).
41 Consequently, the answer to be given to the first question must be that Article 1(1) of the Directive is to be interpreted as meaning that the Directive may apply to a situation in which an entity operating telecommunications services for public use and managed by a public body within the State administration is, following decisions of the public authorities, the subject of a transfer for value, in the form of an administrative concession, to a private-law company established by another public body which holds its entire capital. The persons concerned by such a transfer must, however, originally have been protected as employees under national employment law.
The second question
44 On this point, it should be borne in mind that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-200/97 Ecotrade v Altiforni e Ferriere di Servola [1998] ECR I-7907, paragraph 25, and Case C-295/97 Piaggio v Ifitalia and Others [1999] ECR I-3735, paragraph 24). A request for a preliminary ruling may be rejected as inadmissible only where it is plain that the interpretation or the examination of the validity of a Community rule requested by the national court has no bearing on the actual facts or subject-matter of the main proceedings (see, inter alia, Joined Cases C-215/96 and C-216/96 Bagnasco and Others v BPN and Carige [1999] ECR I-135, paragraph 20).
49 Under the first subparagraph of Article 3(1) of the Directive, the transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer within the meaning of Article 1(1) are, by reason of such transfer, transferred to the transferee. The Directive is thus 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 (Joined Cases 144/87 and 145/87 Berg and Buschers [1988] ECR 2559, paragraph 12, and Case C-362/89 D'Urso and Others v EMG [1991] ECR I-4105, paragraph 9).
50 As the Advocate General observes in point 91 of his Opinion, the transferred employees' length of service with their former employer does not as such constitute a right which they may assert against the new employer. On the other hand, length of service is used to determine certain rights of employees of a financial nature, and it is those rights which will have to be maintained by the transferee in the same way as by the transferor.
51 Consequently, in calculating rights of a financial nature such as a termination payment or salary increases, the transferee must take into account the entire length of service of the employees transferred, in so far as his obligation to do so derives from the employment relationship between those employees and the transferor, and in accordance with the terms agreed in that relationship.
52 However, where 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 and conditions of remuneration, such an alteration 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 (see, inter alia, Case 324/86 Foreningen af Arbejdsledere i Danmark v Daddy's Dance Hall [1988] ECR 739, paragraph 17, and Case C-209/91 Watson Rask and Christensen v ISS Kantineservice [1992] ECR I-5755, paragraph 28).