Ivana Scattolon v Ministero dell’Istruzione, dell’Università e della Ricerca.
Date: 2011-09-06
35. In that respect, it should be recalled that, according to the consistent case-law of the Court of Justice, the latter may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, inter alia, Case C‑210/03 Swedish Match  [2004] ECR I‑11893, paragraph 25; Case C‑284/06 Burda  [2008] ECR I‑4571, paragraph 37, and Case C‑221/09 AJD Tuna  [2011] ECR I‑0000, paragraph 36).
39. Since that legislation may be relied upon only by persons who are protected in the Member State concerned as workers under national labour law (see, in particular, Joined Cases C‑173/96 and C‑247/96 Hidalgo and Others  [1998] ECR I‑8237, paragraph 24, and Case C‑343/98 Collino and Chiappero  [2000] ECR I‑6659, paragraph 36), it should be noted at the outset that, according to findings by the national court, which have not been challenged by the Italian Government, ATA employees in State schools in Italy enjoy such protection. It follows that the applicant in the main proceedings is capable of benefiting from EU legislation on maintaining the rights of workers, provided the conditions for applicability specifically set out in that legislation are met.
40. As a preliminary observation, it should also be noted that the employees in question were taken over on 1 January 2000, namely before the expiry of the deadline on Member States for transposing Directive 98/50 and before the adoption of Directive 2001/23. It follows that the question posed by the national court must be examined in the light of Directive 77/187 in its initial version (see, by analogy, Case C‑340/01 Abler and Others  [2003] ECR I‑14023, paragraph 5, and Case C‑499/04 Werhof  [2006] ECR I‑2397, paragraphs 15 and 16).
42. The term ‘undertaking’ within the meaning of Article 1(1) of Directive 77/187 covers any economic entity organised on a stable basis, whatever its legal status and method of financing. Any grouping of persons and assets enabling the exercise of an economic activity pursuing a specific objective and which is sufficiently structured and independent will therefore constitute such an entity (Joined Cases C‑127/96, C‑229/96 and C‑74/97 Hernández Vidal and Others  [1998] ECR I‑8179, paragraphs 26 and 27; Case C‑175/99 Mayeur  [2000] ECR I‑7755, paragraph 32; Abler and Others , paragraph 30; see also, with regard to Article 1(1) of Directive 2001/23, Case C‑458/05 Jouini and Others  [2007] ECR I‑7301, paragraph 31, and Case C‑151/09 UGT FSP  [2010] ECR I‑0000, paragraph 26).
43. The term ‘economic activity’ appearing in the definition given in the above paragraph covers any activity consisting in offering goods or services on a given market (Case C‑475/99 Ambulanz Glöckner  [2001] ECR I‑8089, paragraph 19; Case C‑82/01 P Aéroports de Paris  v Commission  [2002] ECR I‑9297, paragraph 79; Case C‑222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I‑289, paragraph 108).
44. Excluded in principle from classification as economic activity are activities which fall within the exercise of public powers (see, in particular, Case C‑49/07 MOTOE  [2008] ECR I‑4863, paragraph 24 and case-law cited, and, concerning Directive 77/187, Case C‑298/94 Henke  [1996] ECR I‑4989, paragraph 17). By contrast, services which, without falling within the exercise of public powers, are carried out in the public interest and without a profit motive and are in competition with those offered by operators pursuing a profit motive have been classified as economic activities (see, in that respect, Case C‑41/90 Höfner and Elser  [1991] ECR I‑1979, paragraph 22; Aéroports de Paris  v Commission , paragraph 82; Cassa di Risparmio di Firenze and Others , paragraphs 122 and 123).
49. Concerning, first, the absence of assets, the Court has repeatedly held that, in certain sectors, the activity is essentially based on manpower. In such circumstances, a structured group of workers may, despite the absence of significant material or immaterial assets, correspond to an economic entity for the purposes of Directive 77/187 (see in particular, concerning cleaning services, Hernández Vidal and Others , paragraph 27, and Hidalgo and Others , paragraph 26; see also, with regard to Directive 2001/23, Case C‑463/09 CLECE , [2011] ECR I‑0000, paragraph 39).
51. Concerning, secondly, the question whether a group of workers such as that at issue in the main proceedings is sufficiently independent, it is sufficient to note that, in the context of EU legislation on maintaining the rights of workers, the concept of independence refers to the powers, granted to those in charge of the group of workers concerned, to organise, relatively freely and independently, the work within that group and, more particularly, to give instructions and allocate tasks to subordinates within the group, without direct intervention from other organisational structures of the employer (see, in that regard, UGT-FSP , paragraphs 42 and 43). Whilst the presence of a sufficiently autonomous entity is not affected by the fact that the employer imposes precise obligations on that group of workers and thus has an extensive influence on its activities, it is nevertheless necessary that that group possess a certain freedom to organise and carry out its tasks (see, to that effect, Hidalgo and Others , paragraph 27).
53. Concerning, thirdly and finally, the fact that the transferred staff and their activities are integrated within the public administration, it should be noted that that fact alone cannot take that entity outside the application of Directive 77/187 (see, to that effect, Collino and Chiappero , paragraphs 33 and 35). The opposite conclusion would not be consistent with the case-law cited in paragaph 42 of this judgment, according to which any sufficiently structured and autonomous grouping of persons and assets enabling the exercise of an economic activity pursuing a specific objective constitutes an ‘undertaking’ for the purposes of Directive 77/187, whatever its legal status and method of financing.
54. Whilst it is true that, as the Italian Government has pointed out, the Court has excluded from the scope of Directive 77/187 the ‘reorganisation of structures of the public administration’ and the ‘transfer of administrative functions between public administrative authorities’ and that that exclusion has subsequently been confirmed in Article 1(1) of that directive in the version resulting from Directive 98/50, and in Article 1(1) of Directive 2001/23, the fact remains, as the Court has already pointed out, and as the Advocate General points out in paragraphs 46 to 51 of his Opinion, the scope of those expressions is limited to cases where the transfer concerns activities which fall within the exercise of public powers ( Collino and Chiappero , paragraphs 31 and 32 and case-law cited).
55. It is true that the documents before the Court show that the taking over by the Ministero of the ATA staff of local authorities fell within the context of a reorganisation of public administration in Italy. However, far from holding that any transfer connected with or falling within the context of a reorganisation of public administration must be excluded from the scope of Directive 77/187, the Court merely stated, in the case-law cited by the Italian Government, that the reorganisation of structures of the public administration and the transfer of administrative functions between public administrative authorities do not in themselves and as such constitute a transfer of an undertaking for the purposes of that directive ( Henke , paragraph 14; Collino and Chiappero , paragraph 31; Mayeur, paragraph 33).
56. The Court has held in particular that the creation of a grouping of municipalities and the taking over by the latter of certain competences of municipalities forming part of that grouping constitutes a rearrangement of the exercise of public powers and cannot therefore fall within Directive 77/187 (see Henke , paragraphs 16 and 17), while holding in other cases that the transfer of staff carrying out activities of an economic nature within a public administration falls within that directive (see, in particular, Hidalgo and Others , paragraph 24; Collino and Chiappero , paragraph 32).
58. It is important to note in that regard that, if such an interpretation were accepted, any transfer imposed upon such workers could be removed by the public authority concerned from the scope of Directive 77/187 simply by invoking the fact that the transfer forms part of a staff reorganisation. Important categories of workers carrying out economic activities within the meaning of the Court’s case-law would thus risk being deprived of the protection provided for by Directive 77/187. That result would be difficult to reconcile both with the wording of Article 2 of the latter, according to which the transferor and the transferee may be any physical or legal person having the capacity of employer, and with the need, bearing in mind the objective of social protection pursued by the directive, to interpret exceptions to its application strictly (see, in relation to Directive 2001/23, Case C‑561/07 Commission  v Italy  [2009] ECR I‑4959, paragraph 30 and case-law cited).
59. It should, finally, be emphasised that the application of the rules set out by Directive 77/187 in situations such as those in the main proceedings does not affect the power of Member States to rationalise their public administrations. The only effect of the applicability of that directive is to prevent transferred workers from being placed, by reason only of the transfer, in a less favourable position than they were in before the transfer. As the Court has held many times and as is apparent, moreover, from Article 4 of Directive 77/187, the latter does not deprive the Member States of the possibility of allowing employers to modify working relations in an unfavourable direction, notably as regards protection against dismissal and the conditions of remuneration. The directive only prohibits such modifications from taking place on the occasion of and because of the transfer (see to that effect, in particular, Case 324/86 Foreningen af Arbejdsledere i Danmark, ‘Daddy’s Dance Hall’  [1988] ECR 739, paragraph 17; Case C‑209/91 Watson [1992] ECR I‑5755, paragraph 28, and Collino and Chiappero , paragraph 52).
The existence of a ‘transfer’ ‘as a result of a legal transfer or merger’ within the meaning of Directive 77/187
60. In order to determine whether there is a ‘transfer’ of the undertaking within the meaning of Article 1(1) of Directive 77/187, the decisive criterion is whether the entity in question keeps its identity after being taken over by the new employer (see, in particular, Case 24/85 Spijkers , [1986] ECR 1119, paragraphs 11 and 12; UGT-FSP , paragraph 22).
61. If that entity functions without significant assets, the maintenance of its identity following the transaction affecting it cannot depend on the transfer of such assets ( Hernández Vidal and Others , paragraph 31; Hidalgo and Others , paragraph 31; UGT-FSP , paragraph 28).
62. In that case, which is, as held in paragraph 50 of this judgment, that which is relevant to the dispute in the main proceedings, the group of workers in question maintains its identity where the new employer pursues the activities and takes over a major part, in terms of their numbers and skills, of those workers ( Hernández Vidal and Others , paragraph 32; UGT-FSP , paragraph 29).
63. Concerning the expression ‘as a result of a legal transfer or merger’ , which also appears in Article 1(1) of Directive 77/187, it should be noted that the Court of Justice has, on account of the differences between the language versions of that directive and the divergences between the laws of the Member States with regard to the concepts to which the latter refer, given that expression a sufficiently flexible interpretation in keeping with the objective of the directive, which is to safeguard employees in the event of a transfer of their undertaking (Case C‑29/91 Redmond Stichting  [1992] ECR I‑3189, paragraphs 10 and 11; Joined Cases C‑171/94 and C‑172/94 Merckx and Neuhuys [1996] ECR I‑1253, paragraph 28; Jouini and Others , paragraph 24). It has thus ruled that the fact that the transfer results from unilateral decisions of public authorities rather than from an agreement does not render the directive inapplicable (see, in particular Redmond Stichting , paragraphs 15 to 17; Collino and Chiappero , paragraph 34; UGT-FSP , paragraph 25).
69. In that judgment, it was held that, whilst 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, the fact remains that, in certain cases, it is used to determine certain financial rights of employees, and that those rights must then, in principle, be maintained by the transferee in the same way as by the transferor ( Collino and Chiappero , paragraph 50).
70. Whilst recalling that the transferee may, in situations other than the transfer of an undertaking and in so far as national law so allows, alter the conditions of remuneration in a manner unfavourable to employees, the Court held that Article 3(1) of Directive 77/187 must be interpreted as meaning that, in calculating rights of a financial nature, 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 ( Collino and Chiappero , paragraphs 51 and 52).
73. As the Court has already stated, the rule in the second subparagraph of Article 3(2) of Directive 77/187 cannot deprive the first subparagraph of Article 3(2) of its substance. That second subparagraph does not therefore prevent the working conditions in the collective agreement to which the employees concerned were subject before the transfer from ceasing to be applicable before the expiry of one year after the transfer, or indeed immediately on the date on which the transfer takes place, in the presence of one of the situations referred to in the first subparagraph of Article 3(2), namely the termination or expiry of the collective agreement or the entry into force or application of another collective agreement (see Case C‑499/04 Werhof  [2006] ECR I‑2397, paragraph 30, and, with regard to Article 3(3) of Directive 2001/23, Case C‑396/07 Juuri  [2008] ECR I‑8883, paragraph 34).
75. Although it follows from the above that Directive 77/187 leaves a margin for manoeuvre allowing the transferee and the other contracting parties to arrange the salary integration of the transferred workers in such a way that the latter is duly adapted to the circumstances of the transfer in question, the fact remains that the arrangements chosen must be in conformity with the aim of that directive. As the Court has repeatedly held, that objective consists, in essence, of preventing workers subject to a transfer from being placed in a less favourable position solely as a result of the transfer (Case C‑478/03 Celtec  [2005] ECR I‑4389, paragraph 26 and case-law cited; and, in relation to Directive 2001/23, order in Case C‑386/09 Briot [2010] ECR I‑0000, paragraph 26).
81. In such circumstances, characterised by the possibility, by means of at least partial recognition of the length of service of the transferred workers, of preventing the latter from suffering a substantial reduction in salary compared with their situation immediately before the transfer, it would be contrary to the objective of Directive 77/187, as described in paragraphs 75 to 77 of this judgment, not to take account of that length of service in so far as is necessary approximately to maintain the level of remuneration received by those workers with the transferor (see, by analogy, Case C‑425/02 Delahaye  [2004] ECR I‑10823, paragraph 34).