Landsorganisationen i Danmark for Tjenerforbundet i Danmark v Ny Mølle Kro.
Date: 1987-12-17
12 IT FOLLOWS FROM THE PREAMBLE AND FROM THOSE PROVISIONS THAT THE PURPOSE OF THE DIRECTIVE IS TO ENSURE, SO FAR AS POSSIBLE, THAT THE RIGHTS OF EMPLOYEES ARE SAFEGUARDED IN THE EVENT OF A CHANGE OF EMPLOYER BY ENABLING THEM TO REMAIN IN EMPLOYMENT WITH THE NEW EMPLOYER ON THE TERMS AND CONDITIONS AGREED WITH THE TRANSFEROR . THE DIRECTIVE IS THEREFORE APPLICABLE WHERE, FOLLOWING A LEGAL TRANSFER OR MERGER, THERE IS A CHANGE IN THE LEGAL OR NATURAL PERSON WHO IS RESPONSIBLE FOR CARRYING ON THE BUSINESS AND WHO BY VIRTUE OF THAT FACT INCURS THE OBLIGATIONS OF AN EMPLOYER VIS-A-VIS EMPLOYEES OF THE UNDERTAKING, REGARDLESS OF WHETHER OR NOT OWNERSHIP OF THE UNDERTAKING IS TRANSFERRED . EMPLOYEES OF AN UNDERTAKING WHOSE EMPLOYER CHANGES WITHOUT ANY CHANGE IN OWNERSHIP ARE IN A SITUATION COMPARABLE TO THAT OF EMPLOYEES OF AN UNDERTAKING WHICH IS SOLD, AND REQUIRE EQUIVALENT PROTECTION .
19 IN ORDER TO DETERMINE WHETHER THOSE CONDITIONS ARE SATISFIED IT IS NECESSARY TO TAKE ACCOUNT OF ALL THE FACTS CHARACTERIZING THE TRANSACTION IN QUESTION . THE FACT THAT THE UNDERTAKING IN QUESTION WAS TEMPORARILY CLOSED AT THE TIME OF THE TRANSFER AND THEREFORE HAD NO EMPLOYEES CERTAINLY CONSTITUTES ONE FACTOR TO BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER A BUSINESS WAS TRANSFERRED AS A GOING CONCERN . HOWEVER, THE TEMPORARY CLOSURE OF AN UNDERTAKING AND THE RESULTING ABSENCE OF STAFF AT THE TIME OF THE TRANSFER DO NOT OF THEMSELVES PRECLUDE THE POSSIBILITY THAT THERE HAS BEEN A TRANSFER OF AN UNDERTAKING WITHIN THE MEANING OF ARTICLE 1 ( 1 ) OF THE DIRECTIVE .
24 ACCORDING TO LANDSORGANISATIONEN I DANMARK THAT QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE . ON THE OTHER HAND, DANSK ARBEJDSGIVERFORENING, THE UNITED KINGDOM AND THE COMMISSION EMPHASIZE THAT ONLY PERSONS WHO ARE EMPLOYED BY THE UNDERTAKING AT THE TIME OF THE TRANSFER MAY TAKE ADVANTAGE OF THE DIRECTIVE, AND NOT PERSONS WHO ARE ENGAGED AFTER THE TRANSFER .
25 AS THE COURT HAS ALREADY STATED, IN PARTICULAR IN ITS JUDGMENT OF 11 JULY 1985 IN CASE 105/84 FORENINGEN AF ARBEJDSLEDERE I DANMARK V DANMOLS INVENTAR (( 1985 )) ECR 2639, THE PURPOSE OF THE DIRECTIVE IS TO ENSURE, AS FAR AS POSSIBLE, THAT THE CONTRACT OF EMPLOYMENT OR EMPLOYMENT RELATIONSHIP CONTINUES UNCHANGED WITH THE TRANSFEREE, IN ORDER TO PREVENT THE WORKERS CONCERNED FROM BEING PLACED IN A LESS FAVOURABLE POSITION SOLELY AS A RESULT OF THE TRANSFER . IT IS THEREFORE CONSISTENT WITH THE SCHEME OF THE DIRECTIVE TO INTERPRET IT AS MEANING THAT UNLESS OTHERWISE EXPRESSLY PROVIDED IT MAY BE RELIED ON SOLELY BY WORKERS WHOSE CONTRACT OF EMPLOYMENT OR EMPLOYMENT RELATIONSHIP IS IN EXISTENCE AT THE TIME OF THE TRANSFER, SUBJECT, HOWEVER, TO COMPLIANCE WITH THE MANDATORY PROVISIONS OF THE DIRECTIVE CONCERNING PROTECTION OF EMPLOYEES FROM DISMISSAL AS A RESULT OF THE TRANSFER .
26 IT FOLLOWS THAT ARTICLE 3 ( 2 ) OF THE DIRECTIVE IS INTENDED TO ENSURE THE CONTINUED OBSERVANCE BY THE TRANSFEREE OF THE TERMS AND CONDITIONS OF EMPLOYMENT AGREED IN A COLLECTIVE AGREEMENT ONLY IN RESPECT OF WORKERS WHO WERE ALREADY EMPLOYED BY THE UNDERTAKING AT THE DATE OF THE TRANSFER, AND NOT AS REGARDS PERSONS WHO WERE ENGAGED AFTER THAT DATE .