Carlito Abler and Others v Sodexho MM Catering Gesellschaft mbH.
Date: 2003-11-20
5. Council Directive 98/50/EC of 29 June 1998 amending Directive 77/187 (OJ 1998 L 201, p. 88), for which the period prescribed for implementation ended on 17 July 2001, was implemented in Austrian law in 2001, after the events at issue in the main proceedings, and is therefore not applicable.
National law
29. 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 criterion for establishing the existence of a transfer within the meaning of the 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 (Case 24/85  Spijkers  [1986] ECR 1119, paragraphs 11 and 12, and Case C-13/95  Süzen  [1997] ECR I-1259, paragraph 10).
30. For Directive 77/187 to be applicable, however, the transfer must relate to a stable economic entity whose activity is not limited to performing one specific works contract (see inter alia Case C-48/94  Rygaard  [1995] ECR I-2745, paragraph 20).  The term   " entity"  thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective (see inter alia  Süzen , cited above, paragraph 13).
33. In order to determine whether the conditions for the transfer of an organised economic entity are met, it is necessary to consider all the facts characterising 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 customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended (see  Spijkers , cited above, paragraph 13, and  Süzen , paragraph 14).
34. However, all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see inter alia  Spijkers , paragraph 13, and  Süzen , paragraph 14).
35. The national court, in assessing the facts characterising the transaction in question, must take into account the type of undertaking or business concerned.  It follows that the degree of importance to be attached to each criterion for determining whether or not there has been a transfer within the meaning of Directive 77/187 will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business ( Süzen , paragraph 18, and  Hidalgo , cited above, paragraph 31).
37. It follows that the failure of the new contractor to take over, in terms of numbers and skills, an essential part of the staff which its predecessor employed to perform the same activity is not sufficient to preclude the existence of a transfer of an entity which retains its identity within the meaning of Directive 77/187 in a sector such as catering, where the activity is based essentially on equipment.  As the United Kingdom and the Commission rightly point out, any other conclusion would run counter to the principal objective of Directive 77/187, which is to ensure the continuity, even against the wishes of the transferee, of the employment contracts of the employees of the transferor.
39. However, as has been held on several occasions, Directive 77/187 is applicable whenever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the business and entering into the obligations of an employer towards employees of the undertaking.  Thus there is no need, in order for Directive 77/187 to be applicable, for there to be any direct contractual relationship between the transferor and the transferee: the transfer may take place through the intermediary of a third party such as the owner or the person putting up the capital (see, inter alia, Joined Cases C-171/94 and C-172/94  Merckx and Neuhuys  [1996] ECR I-1253, paragraphs 28 to 30,  Süzen , paragraph 12, and Case C-51/00  Temco  [2002] ECR I-969, paragraph 31).
41. However, it is clear from the wording of Article 1 of Directive 77/187 that it is applicable whenever, in the context of contractual relations, there is a change in the legal or natural person who is responsible for carrying on the business and who by virtue of that fact incurs the obligations of an employer vis-à-vis the employees of the undertaking, regardless of whether or not ownership of the tangible assets is transferred (Case 287/86  Landsorganisationen i Danmark for Tjenerforbundet i Danmark  v  Ny Mølle Kro  [1987] ECR 5465, paragraph 12, and Case C-209/91  Watson Rask and Christensen  [1992] ECR I-5755, paragraph 15).
42. The fact that the tangible assets taken over by the new contractor did not belong to its predecessor but were provided by the contracting authority cannot therefore preclude the existence of a transfer within the meaning of Directive 77/187.