Mohamed Jouini and Others v Princess Personal Service GmbH (PPS).
Date: 2007-09-13
23. According to settled case-law, the aim of Directive 2001/23 is to ensure the continuity of employment relationships within an economic entity, irrespective of any change of ownership. The decisive criterion for establishing the existence of a transfer within the meaning of that directive is therefore whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (see, inter alia, Case 24/85 Spijkers  [1986] ECR 1119, paragraphs 11 and 12, and Joined Cases C-232/04 and C-233/04 Güney‑Görres and Demir  [2005] ECR I-11237, paragraph 31 and case-law cited).
24. With regard to the requirement that there be a legal transfer, there is settled case-law to the effect that the scope of Article 1(1) of Directive 2001/23 cannot be appraised solely on the basis of a textual interpretation (see, with regard to Article 1(1) of Directive 77/187, Case 135/83 Abels  [1985] ECR 469, paragraphs 11 to 13, and Case C-29/91 Redmond Stich ting  [1992] ECR I-3189, paragraph 10). On account of the differences between the language versions of Directive 2001/23 and the divergences between the laws of the Member States with regard to the concept of legal transfer, the Court has given that concept a sufficiently flexible interpretation in keeping with the objective of Directive 2001/23, which is to safeguard employees in the event of a transfer of their undertaking ( Redmond Stichting , paragraph 11, and Joined Cases C-171/94 and C-172/94 Merckx and Neuhuys  [1996] ECR I-1253, paragraph 28).
31. For Directive 2001/23 to be applicable, that taking over of employees must relate to a stable economic entity whose activity is not limited to performing one specific works contract. The concept of economic entity thus refers to an organised grouping of persons and assets enabling the exercise of an economic activity which pursues a specific objective (Joined Cases C-127/96, C-229/96 and C-74/97 Hernández Vidal and Others  [1998] ECR I-8179, paragraph 26, and Güney-Görres and Demir , paragraph 32), and which is sufficiently structured and autonomous ( Hernández Vidal and Others , paragraph 27).
32. Such an entity need not have significant tangible or intangible assets. Indeed, in certain economic sectors, those assets are often reduced to their most basic and the activity is essentially based on the labour force. Thus, an organised grouping of wage earners who are specifically and permanently assigned to a common task may, in the absence of other factors of production, amount to an economic entity ( Hernández Vidal and Others , paragraph 27).
36. As pointed out by the referring court, the fact that the workers assigned on a temporary basis are integrated in the organisational structure of the client to whom they are assigned is not capable, as such, of precluding a finding that an economic entity has been transferred. Those workers are nonetheless essential assets, without which the temporary employment business would, by definition, not be capable of performing its economic activity. Moreover, the fact that, in terms of point 2 of Article 1 of Directive 91/383, which is referred to in Article 2(2)(c) of Directive 2001/23, they are linked to the transferor by a working relationship and are remunerated by him directly, serves to confirm their connection to the transferor’s business and furthermore their contribution to the existence of an economic entity within it.