Grigorios Katsikas v Angelos Konstantinidis and Uwe Skreb and Günter Schroll v PCO Stauereibetrieb Paetz & Co. Nachfolger GmbH.
Date: 1992-12-16
21 The Court has consistently held (see the judgment in Case 362/89 D' Urso [1991] ECR I-4105, paragraph 9) that the directive is intended to safeguard the rights of workers in the event of a change of employer by making it possible for them to continue to work for the new employer on the same conditions as those agreed with the transferor. The rules applicable in the event of a transfer of an undertaking or a business to another employer are thus intended to safeguard, to the maximum possible extent in the interests of the employees, the existing employment relationships which form part of the economic entity transferred.
22 As the Arbeitsgericht Hamburg points out in the grounds of its orders, the Court held in the judgment in Joined Cases 144/87 and 145/87 (Berg v Besselsen [1988] ECR 2559, paragraph 14) that Article 3(1) of the directive must be interpreted as meaning that after the date of transfer and by virtue of the transfer alone, the transferor is discharged from all obligations arising under the contract of employment or the employment relationship, even if the workers employed in the undertaking did not consent or if they object, subject however to the power of the Member States to provide for joint liability of the transferor and the transferee after the date of the transfer.
25 The Commission pointed out in its observations on Case C-132/92 that the Court held in Case 324/86 (Foreningen af Arbejdsledere i Danmark v Daddy' s Dance Hall [1988] ECR 739, paragraph 15) that the protection provided by the directive was independent of the will of the parties to the contract of employment.
26 In that case, the Court was asked by the Hoejesteret (Supreme Court of Denmark) whether an employee might agree to an amendment of his employment relationship with his new employer, even if the disadvantages of that amendment for him were offset by benefits of such a kind that, taking the matter as a whole, he was not placed in a worse position.
27 Consequently, that judgment as well was concerned with a situation different from the one at issue here, namely one in which the employee does not object to the transfer of his contract of employment or employment relationship and agrees to amendments of the contract or relationship binding him to his new employer.
28 In order to answer the Hoejesteret' s question, the Court observed in paragraphs 14 and 15 of the judgment in Foreningen af Arbejdsledere i Danmark v Daddy' s Dance Hall that since the protection which the directive sought to afford employees was a matter of public policy and therefore independent of the will of the parties to the contract of employment, the rules of the directive were to be considered to be mandatory, so that it was not possible to derogate from them in a manner unfavourable to employees. It followed that the employees concerned were not entitled to waive the rights conferred on them by the directive and that those rights could not be restricted even with their consent.
29 Consequently, it was not the Court' s intention to hold in those two judgments that Article 3(1) of the directive had to be interpreted as meaning that an employee was not entitled to object to the transfer of his contract of employment or employment relationship.
30 On the contrary, in paragraph 16 of its judgment in Case 105/84 (Foreningen af Arbejdsledere i Danmark v Danmols Inventar [1985] ECR 2639), the Court held that the protection which the directive is intended to guarantee is redundant where the person concerned decides of his own accord not to continue the employment relationship with the new employer after the transfer. In that situation Article 3(1) of the directive does not apply.
31 Whilst the directive, which effects only partial harmonization in the area in question (see the judgment in Foreningen af Arbejdsledere i Danmark v Daddy' s Dance Hall, cited above, paragraph 16), allows the employee to remain in the employ of his new employer on the same conditions as were agreed with the transferor, it cannot be interpreted as obliging the employee to continue his employment relationship with the transferee.
32 Such an obligation would jeopardize the fundamental rights of the employee, who must be free to choose his employer and cannot be obliged to work for an employer whom he has not freely chosen.
33 It follows that Article 3(1) of the directive does not preclude an employee from deciding to object to the transfer of his contract of employment or employment relationship and hence deciding not to take advantage of the protection afforded him by the directive.
34 However, as the Court has held (judgment in Berg v Besselsen, cited above, paragraph 12), the purpose of the directive is not to ensure that the contract of employment or employment relationship with the transferor is continued where the undertaking' s employees do not wish to remain in the transferee' s employ.
36 The Member States may, in particular, provide that in such a case the contract of employment or employment relationship must be regarded as terminated either by the employee or by the employer. They may also provide that the contract or relationship should be maintained with the transferor.
39 So far as the first point is concerned, it should be borne in mind that, as the Court has consistently held (see the judgment in Case C-347/89 Eurim-Pharm [1991] ECR I-1747, paragraph 15), the scope of national laws, regulations or administrative provisions has to be assessed having regard to the interpretation given to them by the national courts.