Dr. Sophie Redmond Stichting v Hendrikus Bartol and others.
Date: 1992-05-19
10 In its judgment in Case 135/83 Abels v Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische Industrie [1985] ECR 469, paragraphs 11, 12 and 13, the Court held that the scope of the provision at issue could not be appraised solely on the basis of a textual interpretation on account of the differences between the language versions of the provision and the divergences between the laws of the Member States with regard to the concept of legal transfer.
11 It has therefore given that concept 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, and has held that the directive is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person who is responsible for carrying on the business and who incurs the obligations of an employer towards employees of the undertaking (see, most recently, the judgment in Case 101/87 Bork International v Foreningen af Arbejdsledere i Danmark [1988] ECR 3057, paragraph 13).
15 Admittedly, the national court asks in its sixth question whether the fact that the transfer decision was taken unilaterally by the public authority and was not the result of an agreement concluded by it with the subsidized bodies renders the directive inapplicable in this case.
16 That question must be answered in the negative.
17 In the first place, there is a unilateral decision both where an owner decides to change his lessee and where a public body changes its policy on subsidies. In that connection, it is inappropriate to take account of the nature of the subsidy, which is granted by a unilateral act coupled with certain conditions in some Member States and by subsidy contracts in others. In every case, the change in the recipient of the subsidy is carried out in the context of contractual relations within the meaning of the directive and the relevant case-law (judgments in Berg, cited above, paragraph 19, and in Bork International, cited above, paragraphs 13 and 14). What is more, although the Redmond Foundation, in its observations to the Court, disputes that any agreements were concluded, the Kantongerecht expressly observes in the grounds of its order that "both the plaintiff and the Sigma Foundation have declared themselves ready to cooperate actively in the 'transfer' of the plaintiff' s clients/patients to the Sigma Foundation and a working party for the 'Incorporation of the Activities of the Redmond Foundation into the Sigma Foundation' has come into being".
18 Secondly, as the Commission emphasizes in its observations, moreover, the fact that in this case the origin of the operation lies in the grant of subsidies to foundations or associations whose services are allegedly provided without remuneration does not exclude that operation from the scope of the directive. The directive, as has already been stated, is designed to ensure that employees' rights are safeguarded, and covers all employees who enjoy some, albeit limited, protection against dismissal under national law (judgments in Case 105/84 Foreningen af Arbejdsledere i Danmark v Danmols Inventar [1985] ECR 2639, paragraph 27, and in Case 237/84 Commission v Belgium [1986] ECR 1247, paragraph 13). According to the order for reference, the employees concerned are subject to the Dutch Civil Code.
19 At the hearing, counsel for the plaintiff in the main proceedings put forward another argument, based on the fact that the Redmond Foundation is in a situation comparable to insolvency, which is expressly excluded from the scope of the directive by the Court' s case-law owing to the serious risk, in the event of the application of the directive to insolvency, of a general deterioration in the working and living conditions of workers, contrary to the social objectives of the Treaty (judgment in Abels, cited above, paragraph 23).
21 Accordingly, the answer to the national court' s questions or parts of questions relating to the interpretation of the expression "legal transfer" within the meaning of Article 1(1) of Directive 77/187 must be that that provision is to be interpreted as meaning that the expression covers a situation in which a public authority decides to terminate the subsidy paid to one legal person, as a result of which the activities of that legal person are fully and definitively terminated, and to transfer it to another legal person with a similar aim.
The expression "transfer of an undertaking, business or part of a business"
23 First, the decisive criterion for establishing whether there is a transfer for the purposes of the directive is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (judgment in Spijkers, cited above, paragraphs 11 and 12).
24 Secondly, in order to determine whether those conditions are met, it is necessary to consider all the facts characterizing the transaction in question, including the type of undertaking or business, whether or not the business' s 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 and 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. It should be noted, however, that all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (judgment in Spijkers, cited above, paragraph 13).
25 Lastly, it is for the national court to make the necessary factual appraisal, in the light of the criteria for interpretation specified by the Court, in order to establish whether or not there is a transfer in the sense indicated (judgment in Spijkers, cited above, paragraph 14).