C-234/98

ALLEN AND OTHERS

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 8 July 1999 *

1. The Leeds Industrial Tribunal, United ment with the respondent, Amalgamated Kingdom, has referred to the Court of Construction Co. Ltd (hereinafter A C C ) . Justice under Article 177 of the EC Treaty To that end, the Tribunal has to decide (now Article 234 EC) two questions on the whether the Transfer of Undertakings (Pro- interpretation of Directive 77/187/EEC 1on tection of Employment) Regulations 1981, the safeguarding of employees' rights in the the purpose of which is to bring national event of transfers of undertakings (herein- law into line with the Directive, is applic- after 'the Directive'). In essence, the issue is able in the case before it. whether there can be a transfer for the purposes of the Directive where an opera- tion takes place between two companies which not only belong to the same corpo- rate group but also have common owner- ship, management and premises and are engaged, in part, in the same activity.

3. According to the findings in the order for reference, following the nationalisation of the coal industry, most deep mining was carried out by British Coal. Initially, the construction and civil engineering work required to enable the mine owner to get I — Facts at and extract minerals was carried out by the mine owner itself using its own work- force. Subsequently, it began to use outside contractors. 2. This question on the interpretation of Community law arose from an application made to the Leeds Industrial Tribunal by a group of workers for a declaration, under Section 11 of the Employment Protection (Consolidation) Act 1978, as to what were the terms and conditions of their employ-

7. The duration of the work was laid down in the specific contracts in each case. When a contract was awarded, its time span was known and redundancy notices were issued to the workforce on a protective basis. 5. ACC's activities consist essentially in the Some of the applicants had been working construction of underground roadways and under these precarious terms for several the driving of tunnels. It is a competitive years. industry, in that contracts are almost always awarded following invitation to tender, without any guarantee that the mine owner will award further contracts to the same firm on expiry of the current In the autumn of 1994, a number of contract. However, it is clear that contracts contracts were due to come to an end and tend to be awarded on a rolling basis, if ACC notified the competent authority of only because the mine owner is familiar 92 potential redundancies. Notification of with the contractor in situ and knows that, those redundancies was also given to the in that way, there will be no transition National Union of Mineworkers 2 (herein- period between contracts, so that continu- after 'the NUM'), which was the Trade ity of the work is ensured. The Industrial Union which represented the majority of Tribunal found that there was no occasion the employees concerned. when ACC lost a contract under a compe- titive tender procedure.

8. In August 1994, British Coal announced an invitation to tender for a contract for

6. In contrast, the history of AMS, the 2 — The national court states in its order that, although neither ACC nor the AMCO Group purports to recognise the other subsidiary involved in these proceed- NUM, it is satisfied that over a number of years the NUM has been treated, for all practical purposes, as being ings, is much shorter. It was established in recognised. It states that it is unable to understand why 1993 for the purpose of competing with the respondent would have thought it appropriate to give notice of the redundancies in the statutory form to the NUM other contractors for work associated with unless it was recognised as a union.

10. After some time, RJB expressed con- cern about the terms and conditions of employment which various contractors, 9. Towards the end of March 1995 another including AMS, were applying and the contract awarded to ACC, which was being deterioration of those terms. It took the view that, in general, their employees lacked motivation, which might be attribu- 3 — Both British Coal and RJB were aware of the intention of table to the fact that the terms and ACC to subcontract the contract to AMS. There had been conditions under which they were now discussions prior to tenders being submitted and it appears that, although neither British Coal nor RJB had any working were much less favourable than objection to AMS being a subcontractor, they preferred that ACC should itself be the tendering contractor. those to which they had previously been 4 — It appears that, in the mining industry, substantial elements of plant and equipment are provided by the mine owner. Once it became the subcontractor, AMS had the use of all the equipment which had previously been provided for ACC 6 — Long gone are the days when Sir Harold Macmillan, 1st and was also able to use other items of plant and equipment Earl of Stockton and British Prime Minister from 1957 to which were the property of ACC, without any charge being 1963, was able to say: 'There are three bodies no sensible made for such use. man directly challenges: the Roman Catholic Church, the 5 — On that point, the Industrial Tribunal is satisfied, on the Brigade of Guards and the National Union of Minewor- basis of the evidence before it, that the employees were kers', The Observer, 22 February 1981. advised of this change simply by being told that they were 7 — The Industrial Tribunal observes that, whatever the start moving from ACC to AMS. There was no formal re- and finish dates of the contracts, the reality was that the engagement by way of job interview, nor were there any of preparatory and tidying-up work at the beginning and end the other procedures which might have been expected if of contracts would overlap so that, during that period, it there had been a genuine break between the two employ- was difficult to say whether an employee was working ments. However, those who moved from ACC to AMS under the old contract or the new one and thus whether he received redundancy payments calculated according to their was working for ACC or AMS, particularly as the day-to- total length of service with ACC, and began to work with day management in that colliery was undertaken by ACC AMS under that firm's terms and conditions, which were managers, who used labour according to the needs of the significantly less favourable that those enjoyed with ACC. day.

13. In order to resolve the case, the Leeds Industrial Tribunal decided to suspend proceedings and refer the following ques- 11. ACC submitted further tenders for tions to the Court of Justice for a prelimin- work in the same colliery. Its tenders ary ruling: reflected the changes in the terms and conditions of employment, but there were no plans to subcontract work to AMS. None the less, a workforce was required, as a large part of the workforce had been made redundant when previous contracts '1. Is the Acquired Rights Directive were subcontracted to AMS. It did not (77/187/EEC) capable of applying to attempt to recruit externally but took on, two companies in the same corporate under the then applicable terms and condi- group which have common ownership, tions, those who had been working for management, premises and work, or AMS and whose employment was coming are such companies a single undertak- to an end. Those terms and conditions were ing for the purpose of the Directive ? In better in certain respects than those of AMS particular, can there be a transfer of an but were not as beneficial as those offered undertaking for the purposes of the by ACC before 1994. 8 Directive when Company A transfers a substantial part of its labour force to Company B in the same corporate 8 — As Adam Smith observed, as long ago as 1776, 'What are group ? the common wages of labour, depends everywhere upon the contract usually made between those two parties, whose interests are by no means the same. The workmen desire to get as much, the masters to give as little as possible. The former are disposed to combine in order to raise, the latter in order to lower the wages of labour. It is not, however, difficult to foresee which of the two parties must, upon ali ordinary occasions, have the advantage of the dispute, and force the other into a compliance with their terms.', An 2. If the answer to Question 1 is in the Inquiry into the Nature and Causes of the Wealth of Nations, Ed. A. Skinner, Pelican Classics, 1979, p. 169. affirmative, what are the criteria for

14. The Leeds Industrial Tribunal does not (iv) There was little or no contempor­ seek an interpretation of any specific pro­ aneity between the movement of vision, although it refers to Directive the workers from Company A to 77/187 in a general way. In view of the

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substance of the questions, the Court must Article 4 consider the following provisions:

Article 1 ' 1 . 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 ' 1 . This Directive shall apply to the transfer may take place for economic, technical or of an undertaking, business or part of a organisational reasons entailing changes in business to another employer as a result of the work-force. a legal transfer or merger.

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ALLEN AND OTHERS

ernment of the United Kingdom and the 77/187 in circumstances in which the representative of the Commission presented purported transfer was between companies their oral observations. belonging to the same corporate group has been referred to the Court of Justice.

V — Examination of the questions referred for a preliminary ruling Apart from the respondent undertaking, all those who submitted observations in these proceedings agree that the fact that the 16. By the two questions it has referred, transfer of an undertaking, business, or which I believe should be dealt with part of a business is between companies together, the Leeds Industrial Tribunal is belonging to the same corporate group does asking whether there can be a transfer of an not preclude the applicability of Directive undertaking, business or part of a business, 77/187. I should say here and now that I within the meaning of Article 1(1) of share that view, if only because the Direc- Directive 77/187, between two companies tive does not exclude it and because, since belonging to the same corporate group, these companies can be the subject of a which have common ownership, common legal transfer or merger like any other, there management and premises and undertake is no reason to exclude their employees the same work, when one such company from the protection afforded by the Direc- transfers a substantial part of its labour tive. However, as I will have occasion to force to the other; what the criteria are for explain below, those are not the only determining whether there has been a reasons. transfer; and whether there has been a transfer in the circumstances of the present case.

differences, as they can have a direct effect 21. The Directive is applicable, according on the functioning of the common market. to Article 1(1) thereof, to transfers of Its adoption was proposed in the Council undertakings, businesses or parts of busi- Resolution of 21 January 1974 concerning nesses to another employer as a result of a a social action programme. 9 Its objective is legal transfer or merger. However, it does set out, in the main, in Article 3(1), which not contain a definition of undertaking, provides for the transfer to the transferee of business, part of business, employer or legal the transferor's rights and obligations aris- transfer. It has been the Court of Justice ing from an employment relationship exist- which, in its many judgments, has provided ing on the date of a transfer, and in a Community definition of these terms. 12 Article 4(1), which provides that the trans- fer is not in itself to constitute grounds for dismissal by the transferor or the trans- feree.

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ALLEN AND OTHERS

For that reason, I must base my answers to same or similar activities, is of crucial the questions referred for a preliminary significance. ruling by the Leeds Industrial Tribunal on the case-law rather than on that new text.

25. The Court refined its definition of economic entity in subsequent decisions. In its judgment in Rygaard18 it held that in order for the Directive to be applicable, the 23. The Court of Justice did not attempt to transfer had to relate to a stable economic define separately the terms used by the entity whose activity was not limited to Directive to describe the entities which performing one specific works contract, could be transferred to another employer, and went on to rule, in its judgment in namely 'undertakings', 'businesses' or Siizen,19 that the term entity thus referred 'parts of businesses'. Instead, it devised to an organised grouping of persons and the term 'economic entity'. assets facilitating the exercise of an eco- nomic activity which pursues a specific objective.

27. In its judgment in Botzen, the Court considered whether the scope of the Direc­ tive extends to a transferor's rights and obligations arising from a contract of employment or employment relationship 29. The Court has held that, in view of the existing on the date of the transfer and differences between the various language entered into with employees who, although versions of Article 1(1) of the Directive and not belonging to the part of the under­ the divergences between national legisla­ taking which was transferred, carry on tion on the concept of legal transfer, its certain activities using the assets assigned scope cannot be appraised solely on the to the transferred part. Since an employ­ basis of a textual interpretation. 25 In its ment relationship is essentially character­ judgment in Bork International,26 the ised by the link existing between the Court interpreted that concept fairly flex­ employee and the part of the undertaking ibly to meet the objective of the Directive, or business to which he is assigned to carry which is to protect workers in the event of a out his duties, in order to decide whether transfer of their undertaking, and declared the rights and obligations under an employ­ that the Directive is applicable wherever, in ment relationship are transferred under the context of contractual relations, there is Directive No 77/187 by reason of a trans­ a change in the legal or natural person who fer, it is sufficient to establish to which part is responsible for carrying on the business of the undertaking or business the and who incurs the obligations of an employee was assigned. 2 3 employer towards employees of the under­ taking.

which takes place in the course of a continue trading for as long as that decision procedure such as a 'surséance van betal- remains in force; 32 to a situation in which ing' (judicial leave to suspend payment of a public authority decides to terminate the debts); 27 where the owner of a leased subsidy paid to a foundation set up to assist undertaking takes over its operation fol- drug addicts, which is its only source of lowing a breach of the lease by the lessee; 28 income, as a result of which its activities are where, upon the termination of a non- fully and definitively terminated, and to transferable lease, the owner of an under- transfer it to another foundation with a taking leases it to a new lessee who carries similar aim; 33 to a situation in which one on the business without interruption with businessman, by a contract, assigns to the same staff, who had been given notice another businessman responsibility for run- on the expiry of the initial lease; 29 to the ning a facility for staff, which was formerly transfer of an undertaking pursuant to a managed directly, in return for a fee and lease-purchase agreement and to the various advantages, details of which are retransfer of the undertaking upon the laid down by the agreement between termination of the lease-purchase agree- them; 34 to a situation in which an under- ment by a judicial decision; 30 where, after taking holding a motor vehicle dealership giving notice bringing the lease to an end or for a particular territory discontinues its upon termination thereof, the owner of an activities and the dealership is then trans- undertaking retakes possession of it and ferred to another undertaking which takes thereafter sells it to a third party who on part of the staff and is recommended to shortly afterwards brings it back into operation, which had ceased upon termina- tion of the lease, with just over half of the staff that was employed in the undertaking by the former lessee; 31 when, in accor-

creditors. 33 — Judgment in Redmond Stichting, cited above in footnote 2 1 , paragraph 2 1 . 34 — C a s e C-209/91 Watson Rask and Others [1992] ECR 27 — Judgments in Abels, cited above in footnote 25, paragraph I-5755, paragraph 2 1 . The agreement between Philips and 30; Case 179/83 FNV [1985] ECR 5 1 1 , paragraph 7; and ISS provided that ISS would assume responsibility for Botzen, cited above in footnote 2 3 , paragraph 9. However, managing Philips's canteens (including menu planning, the Directive does not apply to transfers made in insol- purchasing, preparation, dispatch and all administrative vency proceedings in which the assets of the insolvent functions, together with staff recruitment and training), transferor are wound up under the control of the taking over Pnilips's permanent canteen staff on the same competent judicial authority. terms and conditions as regards wages and seniority. 28 — J u d g m e n t in Ny Mølle Kro, cited above in footnote 10, Philips agreed to pay ISS a fixed monthly fee to cover all paragraph 1 5 . . ordinary operating expenditure and the costs of various 29 — Judgment in Daddy's Dance Hall, cited above in footnote products, such as disposable plates and packaging, servi- ettes and cleaning materials.

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The Court took 31. In contrast, the taking over, with a view the — to my mind quite radical — view to completing, with the consent of the •that neither the fact that the activity awarder of the main building contract, transferred was, for the transferor, only an works started by another undertaking, of ancillary activity not necessarily connected two apprentices and an employee, together with its objects, nor the fact that the with the materials assigned to those works, activity in question was performed, prior does not constitute a transfer of an under- to the transfer, by a single employee, nor taking, business or part of a business, the absence of any transfer of tangible within the meaning of Article 1(1) of the assets, was sufficient to preclude the appli-

The applicant was employed by a bank to clean the premises of one of its branches. She was dismissed because the cleaning was in future to be carried out by a specialist firm which already undertook the cleaning or most of the bank's offices. The 35—Joined Cases C-171/94 and C-172/94 Merckx and Neu- cleaning firm offered to employ the applicant for a huys [1996] ECR 1-1253, paragraph 32. monthly wage which was higher than that which she had 36 — Case C-319/94 Dethier [1998] ECR 1-1061, paragraph 32. previously been receiving. However, she was not prepared to work on those terms, as she calculated that her hourly 37 — Case C-399/96 Europièces [1998] ECR 1-6965, paragraph wage would in fact be lower as a result of the increase in 36. the surface area to be cleaned, and brought an action 38 — Cited above in footnote 18, paragraphs 20 to 23. challenging her dismissal.

In its judgment in Hernández Vidal, con- cerning an undertaking which employed another undertaking to clean its premises and decided to end the contract and there- In its judgment in Süzen, the Court stated after carry out the work itself, the Court that, where a contract for cleaning services, made it clear that, whilst such an entity concluded with an outside undertaking, is must be sufficiently structured and auton- cancelled and awarded to another outside omous, it need not necessarily have signifi- undertaking, the mere fact that the service cant assets, tangible or intangible. Indeed, provided by the old and the new awardees in certain sectors, such as cleaning, these of a contract is similar is not sufficient to assets are often reduced to their most basic support the conclusion that an economic and the activity is essentially based on entity has been transferred: an entity can- manpower. Thus, an organised grouping of not be reduced to the activity entrusted to wage earners who are specifically and it. Its identity also emerges from other permanently assigned to a common task factors, such as its workforce, its manage- may, in the absence of other factors of ment staff, the way in which its work is production, amount to an economic organised, its operating methods or indeed, entity. 44 where appropriate, the operational resources available to it. That reasoning

private undertakings and decided, on the obligations of an employer towards expiry of the contracts, not to renew them employees of the entity; the economic with the same undertakings but to conclude entity must retain its identity, which is contracts with other undertakings. In that marked both by the continuation by the judgment, the Court observed in addition new employer of the same activities and by that the presence of a sufficiently structured the continuity of its workforce, its manage- and autonomous entity within the under- ment staff, the way in which its work is taking awarded the contract is, in principle, organised, its operating methods or the not affected by the circumstance, which operational resources available to it. occurs quite frequently, that the undertak- ing is subject to observance of precise obligations imposed on it by the contract- awarding body. Although the influence which the contract-awarding body has on the service provided by the undertaking concerned may be extensive, the service- providing undertaking nevertheless nor- mally retains a certain degree of freedom, albeit reduced, in organising and perform- ing the service in question, without its task being capable of being interpreted as sim- ply one of making personnel available to 35. According to the order of the Leeds the contract-awarding body. 45 Industrial Tribunal, that court is satisfied that ACC had been active for many years in driveage work in the mining industry and that it decided to stop doing the work itself because of the high cost of its workforce. It seems that its workforce was dismissed as the works contracted for were completed 34. It is clear from the judicial reasoning and, at the same time, in response to RJB's set out above that the criteria identified tenders, it submitted bids based on the hitherto by the Court for determining labour costs of AMS to which it intended to whether there has been a transfer within subcontract and to which it did subcontract the meaning of Article 1(1) of Directive the performance of the contracts with the 77/187 are the following: there must be an consent of the colliery owner. The redun- economic entity, defined as an organised dant workers, who were paid the compen- grouping of persons and assets for the sation due to them, were taken on, without exercise of an economic activity which any break in continuity but under less pursues a specific objective; that entity favourable conditions than those they had must be organised in a stable manner and previously enjoyed, by AMS, which not limited to performing one specific required manpower to carry out the con- works contract; there must be a change, tracts. This state of affairs, which went on in terms of contractual relations, in the for several years, did not appear temporary legal or natural person who is responsible but could be described as stable, particu- for carrying on the business and who incurs larly bearing in mind that it only changed when the colliery owner insisted that the working conditions of the employees con- 45 — Cited above in footnote 42, paragraph 27. cerned be improved. From that moment

36. In determining whether or not there was a transfer of part of a business from ACC to AMS, the Leeds Industrial Tribunal will have to decide whether the driveage work in the Prince of Wales colliery, 38. The Court has been telling national originally carried out by ACC, which, in courts that, in determining whether the August 1994, ACC decided to begin sub- conditions for the transfer of an economic contracting to AMS, a company set up in entity are met, it is necessary to consider all 1993, constituted an identifiable economic the facts characterising the transaction in entity within ACC, organised in a stable question, including in particular the type of manner, defined as an organised grouping undertaking or business, whether or not its of persons and assets which pursues a tangible assets, such as buildings and specific objective; whether that decision to movable property, are transferred, the subcontract was temporary in being con- value of its intangible assets at the time of fined to the execution of specific works or the transfer, whether or not the majority of whether it was of an indefinite nature; its employees are taken over by the new whether the employees dismissed by one employer, whether or not its customers are undertaking and taken on immediately by transferred, the degree of similarity the other were precisely the ones who had between the activities carried on before been assigned permanently to the perfor- and after the transfer, and the period, if any, mance of that activity; whether, as a result for which those activities were suspended. of the subcontracting of the activity and However, all those circumstances are subsequent dismissal and re-engagement of merely single factors in the overall assess- employees, AMS assumed an employer's ment to be made and cannot therefore be obligations towards the workers assigned considered in isolation. 46 to that activity. Finally, if the driveage work in the Prince of Wales colliery constituted an economic entity, the national court will have to determine whether it retained its identity when it was subcontracted to AMS and when ACC took it on again having decided to end that arrangement. 39. As regards the seven facts which the national court puts before this Court in its

I cannot formulate an opinion regarding point (vi) of the second question referred for a preliminary ruling, according to which, after being employed by AMS, the employees carried out work for both ACC and AMS as needed by the local manage- ment who were responsible for both com- panies, as there is not sufficient informa- tion. If the work undertaken by ACC was the driving of tunnels in the Prince of Wales collieries and it ceased such work when it 40. For instance, the fact that there was no subcontracted it to AMS, presumably dis- transfer of assets between ACC and AMS missing the majority of its workforce, (point (ii)) may be due to the fact that it is which was taken on by AMS, I have to common in that industry for plant and ask to what activity ACC could be assign- equipment to be provided by the colliery ing the staff which AMS employed. owner. In any event, according to the order for reference, AMS had the use of equip- ment which previously ACC had used and the absence of any transfer of premises, management or infrastructure may be explained by the fact that both companies 41. It remains for me to consider point (i) shared them. Whilst there was no transfer of the second question, which deals with of customers (point (iii)), it is clear that the dismissal of the workers by ACC and there was a sole client and that the their subsequent engagement by AMS for operation took place with its consent. The the driveage work which ACC had been fact that there was little or no contempor- carrying out. aneity between the movement of the work- ers of ACC to AMS and the beginning or end of the contracts (point (iv)) may very well be due, as the Commission observes, to the fact that a transfer of undertakings is a complex legal operation which may take 42. As I have already said, Article 4(1) of some time to complete. The fact that ACC the Directive provides that the transfer is and AMS share the same management and not in itself to constitute grounds for premises (point (v)) does not preclude one dismissal by the transferor or the trans- transferring to the other an economic entity feree, although this provision is not to having the characteristics described. The stand in the way of dismissals that may fact that the work undertaken was contin- take place for economic, technical or uous and there was no suspension of organisational reasons entailing changes in activities or change in the manner in which the workforce. The applicants in the main they were conducted (point (vii)) is a proceedings were dismissed by ACC pur-

However, this provision applies to a trans- fer of an undertaking within the meaning of the Directive, and ACC denies that such a transfer took place. In my opinion, that Similarly, the Court has held that employ- undertaking not only dismissed its work- ees unlawfully dismissed by the transferor shortly before the undertaking is transfer- force because, having the intention to red and not taken on by the transferee may subcontract the work to AMS, it would claim, as against the transferee, that their not need them any more, but apparently dismissal was unlawful.48 also in order to meet that company's requirement for a specialist workforce to carry out the contracts without having to go in search of it. It cannot, therefore, be ruled out that there was an intention to evade the obligations imposed by the Directive by transferring workers, accord- ing to the requirements of the works 44. If the Leeds Industrial Tribunal arrives contracts, from one undertaking to another, at the conclusion that there was a transfer reducing their salaries in order to bring within the meaning of Article 1(1) of the down labour costs. Directive, this will mean that the dismissal of the employees concerned by ACC was void and that their terms and conditions of employment should have been maintained by the transferee undertaking. Since the transferee is subrogated to the transferor's rights and obligations under the employ- ment relationship, that relationship may be 43. In any event, the Court has held that, if altered with regard to the transferee to the the employees of an undertaking are dis- same extent as it could have been with missed solely as a result of a transfer, regard to the transferor, provided that the contrary to Article 4(1) of the Directive, transfer of the undertaking itself may never those employees must be regarded as still in constitute the reason for that amendment. the employ of the undertaking, with the Nevertheless, the Directive does not pre- result that the employer's obligations clude an agreement with the new employer towards them are automatically transferred to alter the employment relationship, in so from the transferor to the transferee in far as such an alteration is permitted by the accordance with Article 3(1) of the Direc- tive. In order to determine whether the employees were dismissed solely by reason 47 — Judgment in Bork, cited above in footnote 24, paragraph of the transfer, it is necessary to take into 18. 48 — Judgment in Dethier, cited above in footnote 36, para- consideration the objective circumstances graph 42.

45. Finally, the respondent in the main proceedings claims, in its observations, that the Directive is not applicable to two companies such as ACC and AMS, both subsidiaries of AMCO, which functioned as a single economic unit working together towards common commercial objectives 51 — Case C-73/95 Ρ Viho ν Commission [1996] ECR 1-5457, paragraph 16. and that, for the purposes of competition 52 — In these proceedings, it was found that the parent company law, they would be regarded as a single owned 100% of the capital of its subsidiaries established in various Member States and that the sales and marketing undertaking. Moreover, AMS did not have activities of the subsidiaries were directed by an area team which was appointed by the parent company and which real autonomy in determining its course of controlled, in particular, sales targets, gross margins, sales action in the market, being merely an costs, cash flow and stocks. That team also laid down the range of products to be sold, monitored advertising and instrument whereby the commercial objec­ issued directives concerning prices and discounts. tives of the group were realised. 53 — Case-law established in the judgments in Case 48/69 ICI ν Commission [1972] ECR 619, paragraphs 133 and 134; Case 15/74 Sterling Drug [1974] ECR 1147, paragraph 41; Case 16/74 Winthrop [1974] ECR 1183, paragraph 32; Case 30/87 Bodson [1988] ECR 2479, paragraph 19; 49 — Judgment in Daddy's Dance Hall, cited above in footnote and Case 66/86 Ahmed Saeed Flugreisen and Others [1989] ECR 803, paragraph 35. 10, paragraphs 17 and 18. 50 — This analysis was confirmed by the replies given by the 54 — Case 170/83 Hydrotherm [1984] ECR 2999, paragraph representatives of the applicants in the main proceedings 11. and by the Government of the United Kingdom to the 55 — Case T-102/92 Vibo ν Commission [1995] ECR II-17, questions I put to them at the hearing. paragraph 50.

(2) It is for the Leeds Industrial Tribunal to determine whether, in the present case, the relevant criteria have been fulfilled and whether, therefore, an economic entity has been transferred and has retained its identity.

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