Temco Service Industries SA v Samir Imzilyen and Others.
Date: 2002-01-24
23 In that connection it must be observed that the directive is intended to ensure continuity of employment relationships existing within an economic entity, irrespective of any change of ownership. It follows that the decisive criterion for establishing whether there is a transfer for the purposes of the directive is whether the business in question retains its identity (see, in particular, Case 24/85 Spijkers [1986] ECR 1119, paragraph 11). The transfer must therefore relate to a stable economic entity whose activity is not limited to performing one specific works contract (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 (Case C-13/95 Süzen [1997] ECR-1259, paragraph 13).
24 In order to determine whether the conditions for the transfer of an 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, have been transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of employees have been 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 are suspended. However, all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see, in particular, Spijkers, cited above, paragraph 13, and Süzen, cited above, paragraph 14).
25 In its judgments in Case C-392/92 Schmidt [1994] ECR I-1311, Süzen, and Joined Cases C-127/96, C-229/96 and C-74/97 Hernández Vidal and Others [1998] ECR I-8179, the Court has already had to consider the question of the transfer of an economic entity in the cleaning sector. It took the view 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 the directive 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. Thus, where, in particular an economic entity is able, in certain sectors, to function without any significant tangible or intangible assets, the maintenance of its identity following the transaction affecting it cannot, logically, depend on the transfer of such assets (Süzen, paragraph 18).
26 Thus, in certain labour-intensive sectors, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity. Such an entity is, therefore, capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task (Süzen, paragraph 21). 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, cited above, paragraph 26).
27 Although Temco submitted at the hearing that the engagement of part of the staff of GMC was imposed on it by a collective agreement (the collective agreement of 5 May 1993), that, in any event, has no bearing on the fact that the transfer concerns an economic entity. It must, moreover, be emphasised that the purpose of the collective agreement of 5 May 1993 is the same as that of the directive and that the collective agreement is expressly intended, as regards the engagement of part of the staff, to cover the case of a new tendering procedure such as that in the case in the main proceedings.
28 Similarly, the fact that the staff of the transferor were dismissed only a few days before the employees in question were taken on again by the transferee, indicating that the reason for the dismissal was the transfer of the business, cannot have the effect of depriving workers of their right to have their contract of employment maintained by the transferee. In those circumstances, such staff must be regarded as still in the employ of the undertaking on the date of the transfer (Case 101/87 Bork International [1988] ECR 3057, paragraph 18). In that judgment the Court held that in order to determine whether the employees were dismissed solely as a result of the transfer, it is necessary to take into consideration the objective circumstances in which the dismissal took place, for example, the fact that it took effect on a date close to that of the transfer and that the employees in question were taken on again by the transferee. The staff of GMC must, therefore, be considered to have been part of that company until they were taken on by Temco.
31 However, as the Court has held, the absence of a contractual link between the transferor and transferee cannot preclude a transfer within the meaning of the directive. The transfer can be effected in two successive contracts concluded by the transferor and transferee with the same legal or natural person (see, as regards a change of lessee-manager of a restaurant, Case 324/86 Tellerup [1988] ECR 739 (Daddy's Dance Hall); as regards the conclusion by a municipal authority of a contract with an association following termination of a previous contract with another association to carry out the same activities, Case C-29/91 Redmond Stichting [1992] ECR I-3189; and, as regards a change in the ownership of a car dealership, Joined Cases C-171/94 and C-172/94 Merckx and Neuhuys [1996] ECR I-1253). That case-law certainly also applies in a situation where, as in the case in the main proceedings, a contractor enters into two successive cleaning contracts, the second on termination of the first, with two different undertakings (Süzen, paragraphs 11 and 12).
33 The answer to the first question referred for a preliminary ruling should therefore be that Article 1(1) of the directive must be interpreted as applying to a situation in which a contractor which has entrusted the contract for cleaning its premises to a first undertaking, which has that contract performed by a subcontractor, terminates that contract and enters into a new contract for the performance of the same work with a second undertaking, where the transaction does not involve any transfer of tangible or intangible assets, between the first undertaking or the subcontractor and the second undertaking, but the second undertaking has taken on, under a collective labour agreement, part of the staff of the subcontractor, provided that the staff thus taken on are an essential part, in terms of their number and their skills, of the staff assigned by the subcontractor to the performance of the subcontract.
The second question
35 Article 3(1) of the directive lays down the principle of the automatic transfer to the transferee of the rights and obligations incumbent on the transferor under the contracts of employment existing on the date of the transfer of the undertaking. The rule resulting from those provisions, according to which the transfer takes place without the consent of the parties, is mandatory; it is not possible to derogate from it in a manner prejudicial to employees. Consequently, the implementation of the rights conferred on employees by the directive may not be made subject to the consent of either the transferor or the transferee nor the consent of the employees' representatives or the employees themselves (Case C-362/89 D'Urso and Others [1991] ECR I-4105, paragraph 11).
36 However, although the transfer of the contract of employment is thus imposed on both employer and employee the Court has conceded that the employee has the option of refusing to have his contract of employment transferred to the transferee (see inter alia Joined Cases C-132/91, C-138/91 and C-139/91 Katsikas and Others [1992] ECR I-6577, paragraphs 31 to 33). In such a case, the position of the employee depends on the legislation of the individual Member State: the contract binding the employee to the transferring undertaking may be terminated either by the employee or by the employer or the contract may be maintained with that undertaking (see inter alia Katsikas and Others, cited above, paragraph 36).