Francisco Hernández Vidal SA v Prudencia Gómez Pérez, María Gómez Pérez and Contratas y Limpiezas SL (C-127/96), Friedrich Santner v Hoechst AG (C-229/96), and Mercedes Gómez Montaña v Claro Sol SA and Red Nacional de Ferrocarriles Españoles (Renfe) (C-74/97).
Date: 1998-12-10
22 According to the case-law of the Court, 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, most recently, Süzen, cited above, paragraph 10).
23 As regards the mode of such a transfer, it is established that Directive 77/187 is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person who incurs the obligations of an employer towards employees of the undertaking (see, in particular, Joined Cases C-171/94 and C-172/94 Merckx and Neuhuys [1996] ECR I-1253, paragraph 28).
24 Thus, the Court has held that a situation in which an undertaking entrusts to another undertaking by contract the responsibility for performing cleaning operations which it previously carried out directly (Schmidt, cited above, paragraph 14) and a situation in which a contractor who had entrusted the cleaning of its premises to a first undertaking terminates the contract binding it to that undertaking and concludes, for the purposes of similar operations, a new contract with a second undertaking (Süzen, cited above, paragraphs 11 and 12) may come within the scope of Directive 77/187.
25 Similarly, Directive 77/187 must be capable of applying where, as in these cases before the national courts, an undertaking which used to have recourse to another undertaking for the cleaning of its premises or part of them decides to terminate its contract with that other undertaking and in future to carry out that work itself.
26 In order 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 (Case C-48/94 Rygaard [1995] ECR I-2745, paragraph 20). The term `entity' thus refers to an organised grouping of persons and of assets enabling an economic activity which pursues a specific objective to be exercised (Süzen, cited above, paragraph 13).
27 Whilst such an entity must be sufficiently structured and autonomous, it will not necessarily have significant assets, tangible or intangible.  Indeed, in certain sectors, such as cleaning, these assets are often reduced to their most basic and the activity is essentially based on manpower.  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.
29 In order to determine whether the conditions for the transfer of an 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. 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 and Süzen, paragraphs 13 and 14 respectively).
30 So, the mere fact that the maintenance work carried out by the cleaning firm and the work then carried out itself by the undertaking which owns the premises is similar does not justify the conclusion that there has been a transfer of an economic entity between the two undertakings.  Such an entity cannot be reduced to the activity entrusted to it. Its identity also emerges from other factors, such as its workforce, its management staff, the way in which its work is organised, its operating methods or indeed, where appropriate, the operational resources available to it (Süzen, cited above, paragraph 15).
31 As pointed out in paragraph 29 of this judgment, the national court, in assessing the facts characterising the transaction in question, must take into account among other things 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 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. 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, cited above, paragraph 18).
32 Since, in certain labour-intensive sectors, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, it must be recognised that such an entity is 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. In those circumstances, the new employer takes over a body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis (Süzen, cited above, paragraph 21).
33 Finally, the fact that, for the undertaking which has decided in future to carry it out itself, the cleaning work is merely an ancillary activity not necessarily connected with its objects cannot have the effect of excluding the operation from the scope of Directive 77/187 (Case C-209/91 Watson Rask and Christensen [1992] ECR I-5755, paragraph 17, and Schmidt, cited above, paragraph 14).