C-324/86
ECLI:EU:C:1987:537
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- Súdny dvor Európskej únie
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- 61986CC0324
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OPINION OF MR DARMON — CASE 324/86
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 9 December 1987*
Mr President, including Mr Tellerup. Those employees, Members of the Court, who had been dismissed by Irma Catering with the statutory period of notice, continued to work for Irma Catering throughout that period.
1. The two questions concerning the inter pretation of Council Directive 77/ 187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, busi 3. The question whether the directive is nesses or parts of businesses 1 which have applicable arises because the lease between been referred to this Court by the Danish the owner and the first lessee was not trans Supreme Court may lead this Court to give ferable. That is to say, there was no direct a ruling regarding two points not expressly transfer or legal connection between Irma Catering and Daddy's Dance Hall. The covered by the directive. In the first operation was triangular: Irma Catering was question, which relates to Article 1 (1), the obliged to give up the lease, and a new national court seeks to ascertain the scope contract was therefore concluded between of the directive; more specifically, it asks Palads Teatret and Daddy's Dance Hall. It whether it is applicable when an under must be pointed out, however, that after taking has been transferred, in certain terminating its contract Irma Catering circumstances, in two consecutive stages. In continued to run the restaurant until the the second question, which does not refer to lease in favour of Daddy's Dance Hall took any specific provision, this Court is asked to effect. state to what extent an employee may waive a right conferred on him by the directive.
2. The facts of the case in which these 4. The United Kingdom and the questions were raised are stated in the Commission, which were the only parties to Report for the Hearing, and I need not submit observations in this case, argue, reiterate them here. However, in dealing although for somewhat different reasons, with the first question it must be recalled that the directive is applicable in a case such that Mr Tellerup was engaged by Daddy's as this. In the view of the United Kingdom Dance Hall as the manager of a restaurant the situation should be analysed in terms of which initially had been leased by the a double transfer, albeit a notional one: the owner, Palads Teatret, to Irma Catering. first from the lessee to the owner, the After the first lease was terminated the new second from the owner to the new lessee. lessee re-employed the first lessee's staff, However, the United Kingdom stresses that such a solution is only justifiable when the * Translated from the French. operation of the leased business has not 1 — Official Journal 1977, L 61, p. 26. been interrupted. For its part, the
TELLERUP v DADDY'S DANCE HALL
Commission relies on the Court's case-law, would have the effect of considerably in particular the judgment in Spijkers, 2in reducing its scope and consequently its which the Court declared that 'the decisive effectiveness. criterion for establishing whether there is a transfer for the purposes of the directive is whether the business in question retains its 6. The essence of the second question is identity'. 3 whether, with regard to his new employer, an employee may waive rights conferred on him by the directive if the benefits which he derives from such an alteration of his The Commission is concerned by the fact employment relationship place him in a that a different solution would allow the situation which, viewed as a whole, is not provisions of the directive to be evaded; it less favourable than his previous situation. considers that where the undertaking's acti The United Kingdom and the Commission vities are continued without interruption the consider that that question turns on the employees are in a situation identical to that interpretation of the first subparagraph of resulting from a direct transfer. Article 3 (1) of the directive. That provision states as follows:
5. I am happy to adopt the solution 'The transferor's rights and obligations advocated by the United Kingdom and the arising from a contract of employment or Commission. Indeed, it is dictated by the from an employment relationship existing scope and the spirit of the directive. As the on the date of a transfer within the meaning Court held in Spijkers, 2, the directive of Article 1 (1) shall, by reason of such transfer, be transferred to the transferee'.
'is intended to ensure the continuity of 7. In the view of the United Kingdom such a possibility should be available to the employment relationships existing within a employee provided that it existed with business, irrespective of any change of respect to his former employer. In the view ownership'. of the Commission an employee may only waive rights conferred by provisions of the directive which are not mandatory, in other The purpose of the directive 4 is to words those which are not a matter of guarantee stability of employment and to public policy. Furthermore, the Commission ensure that employees' rights are safe maintains that such a waiver may never place the employee in a situation which is guarded in the event of transfers of under less favourable, viewed as a whole, than his takings. This objective explains the dero previous situation. gation from the rule that contracts are binding only on the parties to them. To limit the application of the directive solely 8. As the Commission points out, the to cases of direct transfer, disregarding the provisions of the directive, in particular the fact that the activities of the transferred first subparagraph of Article 3 (1), are a undertaking were at no time interrupted, matter of public policy. This means that a worker cannot waive the transfer of his 2 — Judgment of 18 March 1986 in Case 24/85 [1986] ECR 1119. rights against his former employer so as to 3 — Ibid., at paragraph 11. bind his new employer. It does not mean, 4 — The adoption of this directive was provided for by the on the other hand, that the rights thereby Council Resolution of 21 January 1974 concerning a social action programme (Official Journal 1974, C 13). safeguarded are all sacrosanct. On the latter
OPINION OF MR DARMON —CASE 324/86
point reference must be made to national viewed as a whole. In other words the law to determine whether the employee may transfer of rights and obligations following waive some of those rights and, if so, on the transfer is, pursuant to the first what conditions. It is clear that pursuant to subparagraph of Article 3 (1) of the Article 7 of the directive a Member State directive, neutral with regard to those rights may adopt provisions 'which are more and obligations. This neutrality also covers favourable to employees'. It is with that in the possibility of amending the contract; as mind that it must be assessed whether the the United Kingdom points out, such waiver of certain rights in return for new amendments must be possible with regard to benefits granted by the employer places the the new employer if they were possible with employee 'in a less favourable situation' regard to his predecessor.
9. I therefore propose that the Court should rule as follows:
'(1) It follows from Article 1 (1) of Council Directive 77 / 187 / EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses that the directive is applicable where, upon the termination of a lease of an undertaking, the undertaking is transferred without any interruption in its activities to a new lessee who continues to employ the same staff;
(2) In his relations with his new employer an employee may not waive rights conferred by the directive which are a matter of public policy, in particular those flowing from the first subparagraph of Article 3 (1). It is for national law to determine whether and under what conditions it is possible to waive rights which are not a matter of public policy and in particular to what extent a general assessment of the employee's situation should be made.