C-336/95
ECLI:EU:C:1997:80
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BURDALO TREVEJO AND OTHERS v FONDO DE GARANTÍA SALARIAL
OPINION OF ADVOCATE GENERAL COSMAS delivered on 20 February 1997
1. In this case, the Juzgado de lo Social N o business to another employer as a result of a 16 (Social Court N o 16), Barcelona, has legal transfer or merger. referred to the Court for a preliminary rul- ing a question on the interpretation of Council Directive 77/187/EEC of 14 Febru- ary 1977 on the approximation of the laws of the Member States relating to the safeguard- ing of employees' rights in the event of 2. This directive shall apply where and in so transfers of undertakings, businesses or parts far as the undertaking, business or part of the of businesses ' ('the Directive'). business to be transferred is situated within the territorial scope of the Treaty.
I — The legal framework
3. ...'
A — Community law
3. Article 2 states:
2. In Section I of the Directive, entitled 'Scope and definitions', Article 1 provides as follows: 'For the purposes of this directive:
' 1 . This directive shall apply to the transfer (a) "transferor" means any natural or legal of an undertaking, business or part of a person who, by reason of a transfer within the meaning of Article 1(1), ceases to be the employer in respect of * Original language: Greek. the undertaking, business or part of the 1 — OJ 1977 L 61, p. 26. business;
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(b) "transferee" means any natural or legal 3. Paragraphs 1 and 2 shall not cover person who, by reason of a transfer employees' rights to old-age, invalidity or within the meaning of Article 1(1), survivors' benefits under supplementary becomes the employer in respect of the company or inter-company pension schemes undertaking, business or part of the outside the statutory social security schemes business; in Member States.
» Member States shall adopt the measures nec- essary to protect the interests of employees and of persons no longer employed in the transferor's business at the time of the trans- fer within the meaning of Article 1(1) in respect of rights conferring on them immedi- ate or prospective entitlement to old-age benefits, including survivors' benefits, under 4. In Section II, which relates to 'Safeguard- supplementary schemes referred to in the ing of employees' rights', Article 3 provides: first subparagraph.'
' 1 . The transferor's rights and obligations 5. Article 4(1) states as follows: arising from a contract of employment or from an employment relationship existing on the date of a transfer within the meaning of Article 1(1) shall, by reason of such transfer, be transferred to the transferee.
'The transfer of an undertaking, business or part of a business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organizational reasons entailing changes in the workforce.
2. ... >
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6. Article 7 states: been transferred from one employer to another, for the reasons referred to therein, the employees in that undertaking retain their rights arising from their employment relationship with it, 2 provided that the transfer took place after the Directive had acquired full force and effect in the internal legal order of the Member State concerned. 'This directive shall not affect the right of The Member States may additionally grant Member States to apply or introduce laws, employees greater protection than that pro- regulations or administrative provisions vided for by the Directive. which are more favourable to employees.'
7. Article 8 states:
' 1 . Member States shall bring into force the laws, regulations and administrative provi- sions needed to comply with this directive 9. Also, the Court has consistently held that within two years of its notification and shall a directive may not be relied on by individu- forthwith inform the Commission thereof. als before national courts where the perti- nent events, in so far as they relate to them, took place before expiry of the time-limit for implementation of the directive. 3
2 — According to the settled case-law of the Court, 'the purpose of Directive 77/187 is to ensure that the rights of employees 2. ...' arc 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 trans- feror. The directive is therefore applicable wherever, in the context of contractual relations, there is a change in the legal or natural person who is responsible for carrying on the business and who incurs the obligations of an employer towards employees of the undertaking' (sec Case 101/87 Bork International v Foreningen af Arbejdsledere i Danmark [1988] ECR 3057, paragraph 13). See also Joined Cases 144/87 and 145/87 Bėrį and Busschers v Besehen [1988] ECR 2559, paragraph 12, and Case C-305/94 Rotsart de Hertaing v Benoidt [1996] ECR 1-5927, paragraphs 16 to 21. 8. It follows from an interpretation of the 3 — Sec, for example, Joined Cases C-140/91, C-141/91, above provisions read in conjunction with C-278/91 and C-279/91 Suffrüti and Others v INPS [1992] ECR 1-6337, paragraphs 11, 12 and 13, and Case C-316/93 each other that where an undertaking has Vaneetveld v Le Foyer [1994] ECR 1-763, paragraph 16).
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B — National law employment relationship for economic or technological reasons or for reasons oí force majeure, whose amount is calculated on the basis of 20 days' salary for each year of ser- vice. For periods shorter than a year, a pro rata monthly calculation is carried out. The 10. Real Decreto N o 505/1985 of 6 March total amount may not exceed the sum 1985 ('the Royal Decree') relates to the orga- allowed as a year's salary. The years of ser- nization and operation of the Fondo de vice used to calculate the payment are those Garantía Salarial (Wages Guarantee Fund). 4 shown by the certificate issued by the The Fondo de Garantía Salarial is a public Tesorería General de la Seguridad Social administrative body falling under the Minis- (Social Security General Fund) relating to try of Labour and Social Security and consti- the period spent by the dismissed worker tutes one of the guarantee institutions envis- with the debtor undertaking, unless the aged by Directive 80/987 for the payment of employee proves an employment relation- outstanding claims from employees in the ship of greater duration. event of the insolvency of their employer. 5
13. Finally, Article 19(3) of the Royal Decree provides that, in the case of under- takings which employ fewer than 25 11. Article 2 of the Royal Decree provides, employees, the Fondo de Garantía Salarial is inter alia, that the Fondo de Garantía Salarial to pay an amount equivalent to 40% of the is to pay to employees the compensation compensation due on account of termination awarded to them for dismissal or termination of an employment relationship for economic of their employment relationship by judicial or technological reasons or for reasons of or administrative decision, in accordance force majeure in accordance with with Articles 50 and 51 of the Estatuto de los Article 19(1), without it being necessary to Trabajadores (Law on Workers). 6 prove that the business is insolvent, has ceased the making of payments, is in liquida- tion or has collectively settled its debts.
12. Under Article 19(1) of the Royal Decree, the Fondo de Garantía Salarial pays compen- II — The facts sation awarded on termination of an
4 — Baletin Oficial del Estado ('BOE') of 17 April 1985, N o 92, as corrected on 27 May 1985 (BOE N o 126) and 19 June 14. The plaintiffs in the main proceedings, 1985 (BOE N o 146). 5 — Council Directive 80/987/EEC of 20 October 1980 on the Pedro Burdalo Trevejo, José Soriano Marco, approximation of the laws of the Member States relating to Miguel Casa Alonso and Vicente Pérez de la the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23). Cruz, worked for the limited liability com- 6 — The legislation in question is Real Decreto Legislativo pany Hiades, which employed fewer than 25 (Royal Legislative Decree) N o 1/1995 of 24 March 1995 (BOE of 29 March 1995, N o 75). permanent workers.
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15. Their employment relationships with the 19. The Fondo de Garantía Salarial refused textile undertaking had begun on 14 July to take into account, for the purposes of cal- 1969, 14 November 1966, 13 August 1950 culating the compensation, periods of work and 3 June 1957 respectively. The undertak- prior to 19 May 1978, the date of the first ing had been founded by Enrique Capella transfer of the undertaking, because that time and subsequently changed ownership on a was not recorded on the certificate issued by number of occasions. In particular, that the social security institution (the Tesorería occurred on 19 May 1978 when Hijos de de la Seguridad Social) and it was not Enrique Capella SA was set up, which required to pay compensation when under- became Ennoblecimiento Textil SA on 29 takings had replaced one another before 19 June 1981 and Hiades SA on 7 January 1986. May 1978. It relied in that regard on the Those transfers did not, however, affect the case-law of the Tribunal Superior de Justicia employment relationships of the above de Catalunya (High Court of Justice of employees, which continued under the new Catalonia) and the Tribunal Supremo owner. (Supreme Court).
16. O n 10 May 1993, the employment rela- tionships between them and Hiades were declared terminated by a decision of the Ministry of Labour of the local government for Catalonia. 20. The Court of Justice put a question to the Spanish Government seeking clarification of the relevant case-law of the Tribunal Supremo referred to by the national court. The written reply of the Spanish Govern- ment and the judgments of the Tribunal 17. It fell to the Fondo de Garantía Salarial Supremo of 31 October 1983 and 17 Decem- to pay the dismissed employees the compen- ber 1985 annexed thereto show, inter alia, sation laid down by Spanish law. that in the case-law of that court a distinc- tion is drawn between length of service, that is to say the period actually spent in a specific undertaking, and experience {'antigüedad'), which refers to the total time spent in a given occupation. That distinction is important inasmuch as length of service is taken into account in order to calculate com- 18. O n 24 January 1994, the Administrative pensation for dismissal, whereas experience Unit of the Fondo de Garantía Salarial, is taken into account in order to determine Barcelona, issued a decision upholding in the period which forms the basis for calcula- part the decision previously adopted by the tion of the amount of pay, allowances and so Ministry. forth.
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21. The abovementioned employees brought undertaking which took place in 1978 gives an action against the decision of the Fondo rise to rights in favour of the employees de Garantía Salarial. The case was assigned to which fall within the scope of the Directive, the Juzgado de lo Social N o 16, Barcelona. that is to say whether the Directive applies to that transfer.
III — The question referred for a prelimi- nary ruling
24. As the Spanish Government states, and is not disputed, the Kingdom of Spain acceded to the Communities on 1 Janu- 22. Since the national court considered that ary 1986 7 and thereafter was, in principle, the case raised a question of interpretation of bound by Community law, including the certain provisions of the Directive, it decided Directive. It also points out that the date on to refer the following question to the Court which the transfer at issue took place (19 of Justice: May 1978) precedes not only the accession by the Kingdom of Spain but also the expiry of the two-year time-limit laid down for implementation of the Directive by the exist- ing Member States. According to the Spanish 'Is it compatible with Article 1(1) and the Government, therefore, the Directive may second subparagraph of Article 3(3) of not be relied on in relation to a transfer of an Council Directive 77/187/EEC of 14 Febru- undertaking which took place before those ary 1977 for the legislation or the courts of a dates. 8 Member State to reduce the payments to be made by the Fondo de Garantía Salarial by excluding certain periods of employment from the total experience to be taken into account, notwithstanding the fact that the employment continued without interruption for an undertaking which was transferred?' 25. That view is correct. Since the Kingdom of Spain acceded to the Communities on 1 January 1986 and was, thereafter, bound in principle by Community law, including the Directive, Community rules formed part of IV — Reply to the question referred for a the legal order in Spain and began to pro- preliminary ruling duce legal effects for the Kingdom of Spain and for individuals from that date onwards. Employees may thus seek the protection
23. It is apparent from the pertinent facts, as set out in the order for reference, that, in 7 — The Treaty and the Act of Accession to the European Econ- omic Community and the European Atomic Energy Com- order to resolve the dispute brought before munity were signed on 12 June 1985 (OJ 1985 L 302); Spain's accession to the Communities took effect on 1 Janu- it, the national court is essentially interested ary 1986. in the question whether the transfer of the 8 — 1 February 1986 and 14 February 1979 respectively.
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which the Directive confers upon them only by the Directive, protection of employees' in the case of transfers of undertakings rights is governed by national law as regards which took place after the Directive had the transfer at issue (which took place in taken effect in the abovementioned Member 1978). For that reason, it also serves no pur- State. pose to examine the point raised by the Commission as to whether the purpose or the effect of the national law governing the Fondo de Garantía Salarial is to nullify or to restrict the rights of employees referred to above, because the answer given would be to 26. Accordingly, since the question referred a general question and would not help to for a preliminary ruling relates to a time at resolve the dispute pending before the which the Kingdom of Spain was not bound national court. 9
V — Conclusion
27. In view of the above analysis, I p r o p o s e that the C o u r t reply as follows to the question referred for a preliminary ruling:
A n e m p l o y e e m a y n o t rely o n t h e p r o t e c t i o n p r o v i d e d for b y C o u n c i l Directive 7 7 / 1 8 7 / E E C of 14 F e b r u a r y 1977 o n the a p p r o x i m a t i o n of t h e laws of t h e M e m b e r States relating t o the safeguarding of e m p l o y e e s ' rights in t h e event of transfers of u n d e r t a k i n g s , businesses or parts of businesses w h e r e the transfer t o o k place at a time w h e n the directive had n o t b e g u n t o have full effect in the internal legal o r d e r of the M e m b e r State in question.
9 — The Court Has repeatedly made it clear that the task assigned to it is not that of delivering advisory opinions on general or hypothetical questions unrelated to resolution of the dispute before it but of assisting in the administration of justice in the Member Sutes; sec, for example, Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 18, Case 149/82 Robaras v Insurance Ofiìcer [1983] ECR 171, paragraph 19, and Joined Cases C-422/93, C-423/93 and C-424/93 Žabala Erasun and Others v Instituto Nacional de Empleo [1995] ECR 1-1567, paragraph 29).
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