C-13/95

SÜZEN ν ZEHNACKER GEBÄUDEREINIGUNG

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 15 October 1996

I — Introduction defendant from April 1987 as a cleaner at Aloisiuskolleg GmbH, a private church-run secondary school in Bonn-Bad Godesberg, whose premises the defendant had con- tracted to clean.

1. The questions which form the subject- matter of this case call upon the Court to define the scope of Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member By letter of 15 February 1994 the defendant States relating to the safeguarding of informed the plaintiff that the contract in employees' rights in the event of transfers of question was expected to end on 30 June undertakings, businesses or parts of busi- 1994 and that it was therefore compelled, as nesses 1 and to determine, in particular, a precautionary measure, to terminate the whether the termination of a cleaning con- plaintiff's employment, in compliance with tract with an undertaking and its subsequent the statutory period of notice, with effect award to another undertaking constitutes a from 30 June 1994. In that letter, however, 'transfer of an undertaking, business or part the defendant offered to continue to employ of a business' as a result of a 'legal transfer' the plaintiff if it was again awarded the within the meaning of the aforesaid directive. cleaning contract in question.

II — Background

The defendant's contractual relationship with Aloisiuskolleg in fact came to an end on 30 June 1994. Aloisiuskolleg thereupon transferred the contract to Lefarth GmbH, which has intervened in the main proceed- ings in support of the defendant, with effect 2. The plaintiff in the main proceedings, from 1 August 1994. The plaintiff accord- Mrs Ayse Stizen, was employed by the ingly instituted proceedings against the defendant before the national court for a declaration that the dismissal was invalid on * Original language: Italian. the ground that the time-limits prescribed by 1 — OJ 1977 L 61, p. 26. law had not been complied with.

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SÜZEN ν ZEHNACKER GEBÄUDEREINIGUNG

O n the other hand, the facts of the case consti- tute an opportunity to reflect on the criteria laid down in the relevant rulings. The con- cept of transfers of undertakings set out in the directive calls for a better definition. The interpretation of Community law admittedly involves defining that concept as required by 5. It is clear from the case-law that the the system and in particular the provision of Court has sought not to treat transfers of the directive laid down for the protection of undertakings, businesses or parts of busi- workers in order to prevent the transfer nesses in a formalistic manner, thereby from constituting in itself a ground for dis- avoiding a firm definition based on strict cri- missal by the transferor or the transferee. teria, but has instead revealed a tendency to The transfer of an undertaking or business examine the concept in question and to constitutes a transaction whose standard define it while applying it, in the light of the content has not been expressly provided for specific features of each individual case.

. . . divergences between the laws of the Mem- transaction. The Court has often confined ber States with regard to the concept of legal itself to setting forth the criteria which the transfer'. 2 However, the fact that the con- national court will have to apply in order to cept of transfers of undertakings varies from classify a particular case in one or other of one national legal system to another, and that the categories covered by Community law. Community law has not referred to any of By the same token, the Court leaves to the those systems for a definition, does not in national court, the dominus litis in that it my view rule out the possibility that the decides whether to make a reference for a directive may still have endowed the concept preliminary ruling, the task of carrying out that classification, since that court has at its disposal factual data relevant for the exact reconstruction of the underlying transac- 2 — Case 135/83 Abels [1985] ECR 469, and Case C-29/91 Red- mond Stichting [1992] ECR 1-3189. tions.

7. As I noted earlier, the criteria laid down by the Court on other occasions, in particu- 6. It is also apparent from the Court's case- lar in the Schmidt case, may be used in order law 5 that an ancillary facility in an undertak- to treat the case under consideration on the ing, when the service it provides is entrusted same footing as those decided in the past and to a third party, takes on for that reason bring it within the scope of the directive. alone an independent economic and func- That would be an easy solution. I have mis- tional identity in its own right, and the activ- givings, however, for several reasons. To ity so classified is brought within the rel- transfer the facilities (of whatever kind) evant category for the purposes of the required by an undertaking to another body directive. In Schmidt, 6expressly cited by the national court in its order for reference, the is a decision made in competitive circum- Court goes so far as to hold that even an stances, which ensures a choice between sev- activity carried on by a single employee falls eral competing rivals. I fail to see how there within that sphere. can be any justification for the transferee of the service being required to keep on such staff of the undertaking as provided services of that kind in the past, if it has been excluded or, in any event, whose tender, sub- mitted on that occasion, has been unsuccess- ful.

Another feature of the rulings given by the Court in this area is the irrelevance of the method of transfer. More specifically, no sig- nificance has been attached to the fact that the transfer of an undertaking or part of it takes place directly between two individuals, In this case, moreover, there is no relation- the transferor and the transferee, or that the ship whatsoever between the two firms transfer of ownership, which may be effected which have alternated in providing the

service. The only factor which they do in businesses and which is evidently lacking in some respects have in common is that the this case. contracting body for which the service is provided is the same. 1 1It does not seem to me, however, that that is sufficient to treat this case on the same footing as those previ- ously examined by the Court in Daddy's Dance Hall, Schmidt and Merckx. It is note- worthy, as the defendant in this case has pointed out moreover, that in previous cases 8. A further key aspect of this case, however, decided by the Court there was always in which is connected with the second question any event a link with a body to which the raised by the national court, calls for further undertakings between whom the transfer reflection: it concerns the very concept of was deemed to take place were accountable. transfers of undertakings, businesses or parts That was also the case, for instance, in Red- of businesses. As we have seen, the Court mond Stichting where two foundations were views that concept in broad terms, whilst funded by the State (the Municipality of considering that the details of the transfer are Groningen, to be precise), which was thus to be verified in each individual case. That the arbiter of their existence and determined approach allows for a suitable degree of flex- their conduct. It was thus possible to take ibility in applying the relevant criteria to the the view, albeit by implication, that the various economic circumstances that may transfer in that case had been carried out arise in the Community. Notwithstanding because the interests involved coincided and that merit, however, it is still necessary, as I were informed by a single purpose, that of have noted, to identify the essential content the State, from which the foundations of the transfer of an undertaking. The core derived their means of support. The two requirement for applying the directive must foundations cooperated with each other be determined. However, it does not seem to within the framework of their accountability me that the criterion laid down by the Court to the public authority and concluded an in Spijkers has drawn a definitive distinction agreement for the transfer of know-how and between a situation in which an undertaking resources. or business is transferred and a situation where the features of that transaction are not present.

At the very least, a transfer must — and on this point I agree with the observations of the United Kingdom, French and German Governments, as well as those of the defen- 10. A final consideration regarding the dant in the main proceedings — involve the re-employment of staff. The aim pursued by actual transfer of tangible or intangible the directive is undoubtedly to safeguard assets, always evidently on the voluntary employment in the circumstances provided basis of the relationship which must exist for. However, the fact that the majority of between transferor and transferee. Any other workers engaged in a particular activity may criterion, such as the mere pursuit of the subsequently have been employed, with cor- activity previously carried on by another responding duties, by another undertaking, undertaking, without any assets or rights is not in my view the decisive criterion (or being transferred, is not sufficient to distin- controlling test) for establishing whether the guish the two situations involved. 12 Instead, activity in question exhibits the characteris- the converse is true: the transfer by one indi- tics of organizational independence which vidual to another of tangible or intangible distinguish the concept of undertaking, busi- assets, coupled with the pursuit of the activ- ness or part of a business. That factor alone does not point to the existence of a transfer ity in question, can undoubtedly constitute of an undertaking, which necessarily leaves the decisive factor when it comes to estab- intact the employment relationship of staff lishing whether the conditions for the appli- not taken on by the transferee in carrying on cation of the directive are fulfilled. the activity or providing the service in ques- tion. If anything, as the Court has frequently stated, 13 the re-employment by the latter undertaking of essential staff can be no more than a criterion for assessment, to be taken into account alongside the other criteria laid down in the case-law, in order to establish whether or not the activity in question is My conclusion is not, as I see it, in any way being pursued. There is a transfer of an invalidated by the consideration that the undertaking, business or part of a business undertakings which provide services of the within the meaning of the directive only if type under consideration have negligible the activity is being pursued and at the same fixed assets. Even though the transfer of time one undertaking has transferred tan- rights and assets which contribute to the for- gible and intangible assets to the other. mation and identity of the undertaking may

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