Ángel Somoza Hermo and Ilunión Seguridad SA v Esabe Vigilancia SA and Fondo de Garantia Salarial (Fogasa).
Date: 2018-07-11
26


In that respect, according to well-established case-law, the scope of that provision cannot be determined solely on the basis of a textual interpretation. On account of the differences between the language versions of that directive and the divergences between the laws of the Member States with regard to the concept of legal transfer, the Court has given that concept a sufficiently flexible interpretation in keeping with the objective of that directive, which is, as stated in recital 3 thereof, to provide for the protection of employees in the event of a change of employer (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 29 and the case-law cited).
27


In accordance with settled case-law of the Court, Directive 2001/23 is applicable whenever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the undertaking and entering into the obligations of an employer towards employees of the undertaking. There is thus no need, in order for Directive 2001/23 to be applicable, for there to be any direct contractual relationship between the transferor and the transferee, since the transfer may take place through the intermediary of a third party (judgment of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 23 and the case-law cited).
28


It follows that the lack of a contractual link between the two undertakings successively entrusted with managing the surveillance of the buildings in question has no bearing on the question as to whether or not Directive 2001/23 is applicable to a situation such as that at issue in the main proceedings (see, to that effect, judgment of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 24).
30


In order to determine whether that condition is in fact 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. Those circumstances must be considered as part of the overall assessment of the circumstances of the particular case and cannot therefore be examined in isolation (judgment of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 26 and the case-law cited).
31


In particular, the Court has held that a 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 (judgments of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 33, and of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 27).
32


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 Directive 2001/23 will necessarily vary according to the activity carried on, or indeed according to the production or operating methods employed in the relevant undertaking, business or part of a business (judgment of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 28 and the case-law cited).
33


The Court has previously stated that an economic entity is able, in certain sectors, to function without any significant tangible or intangible assets, and therefore the maintenance of the identity of such an entity following the transaction affecting it cannot, logically, depend on the transfer of such assets (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 35 and the case-law cited).
34


The Court has thus held that, inasmuch as, 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 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 an organised body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 36 and the case-law cited).
35


Thus, a business providing security in a museum, such as that at issue in the main proceedings, which does not require specific tangible assets, can be regarded as essentially a labour-intensive activity and, consequently, a group of workers engaged in a joint security activity on a permanent basis may, in the absence of other factors of production, constitute an economic entity. The identity of that entity must nonetheless be retained after the transfer in question (see, by analogy, judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 39).
38


Furthermore, although the Spanish Government submits in its written observations that the engagement of the staff of Esabe Vigilancia was imposed on VINSA by a collective agreement, that circumstance, in any event, has no bearing on the fact that the transfer concerns an economic entity. It must, moreover, be emphasised that the objective pursued by the collective agreement for security firms is the same as that pursued by Directive 2001/23 and that that 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 at issue in the main proceedings (see, to that effect, judgment of 24 January 2002, Temco, C‑51/00, EU:C:2002:48, paragraph 27).