C-175/99

MAYEUR

OPINION OF ADVOCATE GENERAL LÉGER delivered on 13 June 2000 *

1. The Court has received a request for a I — Legal background preliminary ruling on the interpretation of Article 1(1) of Council Directive 77/187/ EEC of 14 February 1977 on the approx- imation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of under- takings, businesses or parts of businesses. 1 A — Community law

3. As indicated in the second recital in its preamble, the Directive is intended to provide for 'the protection of employees in the event of change of employer, in particular, to ensure that their rights are safeguarded'.

involves a substantial change in working cle L. 122-12 of the Code du Travail conditions to the detriment of the (Labour Code) which provides: employee, the employer shall be regarded as having been responsible for termination of the contract of employment or of the employment relationship'. 'Cessation of an undertaking shall not, except in cases of force majeure, release an employer from his obligation to give notice of dismissal and, where necessary, to pay the compensation prescribed in Arti- cle L. 122-9. 2 5. Article 1 defines the scope of the Direc- tive. Article 1(1) states: '[T]his directive shall apply to the transfer of an under- taking, business or part of a business to another employer as a result of a legal If any change arises in the legal situation of transfer or merger.' the employer, in particular by reason of succession, sale, merger, transformation of business assets or incorporation, all con- tracts of employment in force at the date of that change shall continue to exist as between the new employer and the work- force of the undertaking'. 6. Article 2 defines the principal terms employed. Thus, according to point (b) of that article, 'transferee' means 'any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), becomes the employer in respect of the undertaking, business or part of the busi- II— Facts and procedure ness'.

A — Factual background

B — National law 8. Mr Mayeur was recruited by the Asso- ciation Promotion de l'Information Mes- sine ('APIM') as an employee, with effect from 1 September 1989, under a contract of unspecified duration.

14. He stated that, according to the case- law of the French Cour de Cassation (Court 10. Mr Mayeur was responsible for the of Cassation), Article L. 122-12 of the publicity activities of APIM, and in that French Labour Code does not apply where capacity his duties were to canvass traders the activity carried out by a legal person in the city and advertisers, to collect funds governed by private law is transferred to a for the publishing of the magazine Vivre à 'public institution of an administrative Metz, to draw up contracts and invoices, nature', 3that is, to a legal person estab- and to draft a monthly account detailing lished under and governed by the rules of the commitments entered into. public law. By contrast, that provision, he contended, becomes applicable where the same activity carried out by a legal person governed by private law is transferred to a legal person established under public law 11. Following dissolution of APIM, he was which is subject to the rules of private law informed, on 16 September 1997, that he and regarded as a 'public institution of an had been dismissed for the following eco- industrial or commercial nature', 4within nomic reason: cessation by APIM of its the meaning of French law. activities.

15. He submitted that that case-law runs contrary to both the letter and the objec- tives of the Directive, and requested that B — Procedural background the national tribunal refer the matter to the Court of Justice for a preliminary ruling.

12. On 10 February 1998 Mr Mayeur 3 — Hereinafter [adopting the French acronym], an 'EPA' brought proceedings against APIM before ('établissement public administratif). 4 — Hereinafter [adopting the French acronym], an 'EPIC' the Conseil de Prud'hommes de Metz ('établissement public industriel et commercial'}.

17. The national tribunal approved the 19. Since it considered it necessary, in order statement of the case-law of the Cour de to decide the case before it, to obtain Cassation as set out by the applicant in the clarification as to the meaning of the term main proceedings, and questioned whether 'transfer of an undertaking' within the the distinction made in that case-law was meaning of the Directive, the Conseil de compatible with the provisions and objec- Prud'hommes de Metz, by judgment of tives of the Directive. It states that, by 14 April 1999, referred to the Court, reason of that distinction, only employees pursuant to Article 177 of the EC Treaty of undertakings transferred to EPICs are (now Article 234 EC), the following ques- subject to the provisions of the Directive tions: and wonders whether that interpretation does not have the effect of restricting the scope of Article 1 of the Directive, contrary to the provisions of the Directive, which is general in scope and does not contain this type of exclusion. It points out in this respect that the Court, by a non-literal application of Directive 77/187, gives it a much wider scope in requiring the safe- 'Is Directive 77/187/EEC of 14 February guarding of contracts of employment where 1977 on the approximation of the laws of the transfer results neither from a merger the Member States relating to the safe- nor from a legal transfer, and, indeed, guarding of employees' rights in the event where there is no legal connection between of transfers of undertakings, businesses or successive operators. parts of businesses applicable where the activity of a legal person governed by private law is transferred to a legal person governed by public law? Must application of that directive be excluded where the activity is transferred to a public service of an administrative nature?'

A — Preliminary observations 22. It is apparent from the grounds of the order for reference that the national tribu- nal is uncertain as to the compatibility of the French case-law with the provisions of the Directive and the Court's interpretation 20. The questions as formulated in the of those provisions. However, in this case, operative part of the order for reference the national tribunal has not specified the concern two distinct and complementary criteria adopted by the national courts and problems. By the first question, the Court is tribunals for distinguishing between the asked to say whether the substantive scope entities designated in French law as EPAs of the Directive covers the transfer of the or EPICs, nor what a SPIC or a SPA is to be activity of an entity governed by private understood as meaning in French law. law to an entity governed by public law. By the second, the Court is asked whether the transfer of an undertaking envisaged in Article 1 of the Directive is excluded where the activity carried on by a legal person governed by private law is transferred 23. Two observations are called for. First, it to a 'public service of an administrative should be pointed out to the national nature'. 7 tribunal that this Court has consistently held that, within the framework of its jurisdiction under Article 177 of the Treaty, it is not entitled either to interpret provi- sions of national law 1 1or to determine their compatibility with Community law, 12 but solely to rule on the interpretation or 21. The terms 'SPA', 'public service of an validity of provisions of Community law on industrial or commercial nature', 8 'EPA' the basis of the factual and legal elements and 'EPIC' correspond to precise situations which the national court puts before it. 13 in French administrative law. 9The infer- ences which the ordinary and the adminis- 10 — See, in particular, the article of Saint-Jours, Y., 'De l'application de l'article L. 122-12, alinéa 2, du Code du travail en cas de modification du mode de gestion publique 7 — Hereinafter [adopting the French acronym], an 'SPA' ou privée d'un service public', JCP, 1986, p. 159; the ('service public administratif). Opinion of Y. Chauvy, Advocate General at the Cour de Cassation, concerning the judgment of the Chambre 8 — Hereinafter [adopting the French acronym], a 'SPIC' Sociale, of 1 December 1993, n° 3865, PBBS, Spriet, ès ['service public industriel et commercial'). qualité de mandataire liquidateur de l'association Opéra 9 — See, in particular, Juris-Classeur Administratif, fascicule de Lille/AGS-Assedic de Lille et autres, RJS, 94/1. 150, Editions techniques; Chapus, R., Droit Administratif 11 — Case C-37/92 Vanacker and Lesage [19931 ECR I-4947, General; Lombari, M., Droit Administratif Éditions Dal- paragraph 7. loz; Long, M., Weil, P., Braibant, G., Devolve, P., and Genevois, B., Les Grands Arrêts de la Jurisprudence 12 — Case C-62/93 BP Supergas [1995] ECR I-1883, para- Administrative (and especially the commentaries on the graph 13. judgment of the French Conseil d'État of 22 January 1921, 13 — C a s e C-30/93 AC-ATEL Electronics Vertriebs [1994] Société Commerciale de l'Ouest Africain). ECR I-2305, paragraph 16.

By the questions which it asks the Court, and which it is appropriate to consider together, the national tribunal is seeking to ascertain whether, and, if so, in what 25. Second, by reason of the task of circumstances, the Directive applies to the cooperation between the national courts situation of a non-profit-making associa- and the Court of Justice under the proce- tion, a legal person governed by private dure laid down by Article 177 of the law, which transfers its activity of obtaining Treaty, 14 it should further be pointed out publicity for and information on the ser- to the national tribunal that the Court has vices offered by a municipality to its accorded to itself the right to extract from inhabitants, previously carried out in the the wording of the questions asked, having interests of the municipality, to a legal regard to the information set out in the person governed by public law, in this case order for reference, the matters calling for the municipality of Metz. an interpretation of Community law. 15 In other words, from the factual and legal matters set out in the order for reference, the Court considers itself under a duty, in the context of its task as defined in Article 177 of the Treaty, to determine the real nature of the dispute in the main proceedings in order to provide the B — Reply to the question as reformulated national court with an interpretation of Community law which will be useful to it in deciding the case before it. Consequently, if it proves to be necessary, the Court will reformulate the questions put to it. 27. The Directive, as stated in Article 1(1), applies to transfers of undertakings, busi- nesses or parts of businesses to another employer, resulting from a legal transfer or from a merger. On the basis of the provi- sions of that article, the Court has consis- tently held that the transfer of an under- taking within the meaning of the Directive 26. In the light of this second observation, assumes, first, the transfer of an economic the wording of the questions and the activity between two distinct entities as the grounds of the order for reference, I result of a legal transfer. This condition is necessary, but not sufficient. For there to be a transfer, the transferred entity must, 14 — This essentially requires the Court to provide the national court with an answer which assists in the resolution of the secondly, continue the activity after the dispute before it (see, for example, Case 35/85 Tissier transfer. In order to answer the question it [1986] ECR 1207, paragraph 10). 15 — Case 54/85 Mirepoix [1986] ECR 1067, paragraph 6. is therefore necessary to consider whether

32. Second, the French Government sub- mits that the activity carried out by APIM, on behalf of the municipality of Metz, was 29. First, according to the French Govern- not an economic activity. ment, there do not exist in this case two distinct entities, constituted by the trans- feror, APIM, and the transferee, the muni- cipality of Metz.

33. It is thus apparent, in the submission of the French Government, from the docu- ments in the case that the activity of APIM 30. Examination of the facts shows that: consisted essentially in promoting the City of Metz and attracting economic activities to its territory. That activity, carried out on behalf of a local authority and in the general interest, and thus in the public interest, cannot be regarded as an economic — APIM was created by the mayor of the activity, but is akin to a task performed in city; the general interest.

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34. The French Government states that what is concerned is the reorganisation of APIM was therefore a sort of 'public the structures of administrative activities service' responsible for operating a service between public entities responsible for a in the general interest subject to the rules of task in the general interest. It contends that private law. APIM was administered in accordance with the rules of private law and that the activity carried out must be characterised as an economic activity. 35. Lastly, according to the French Gov- ernment, it is apparent from the facts of the case in the main proceedings that the City of Metz decided to take over again the activity previously carried out by APIM. (b) Assessment

44. Furthermore, again on the basis of the purpose of the Directive, the Court held that it can apply in the absence of direct contractual relations between the trans- 42. The Court therefore held that 'the feror and the transferee. 22 directive is applicable wherever, in the context of contractual relations, there is a change in the natural or legal person who is responsible for carrying on the business and who incurs the obligations of an employer towards employees of the undertaking', 18 'regardless of whether or not ownership of 45. In its judgment in Redmond Sticht- the undertaking is transferred'. 19 Having ing, 23 the Court held that a situation such regard to the objective of the Directive, the as that constituted by the pursuit, by the Court held that 'employees of an under- Sigma foundation, of the activity of pro- taking which changes manager, without viding assistance for drug addicts, pre- there being a transfer of ownership, are in a viously carried out by the Redmond foun- situation comparable to that of employees dation thanks to grants accorded for that of an undertaking which is sold, and purpose by a municipality, were such as to require equivalent protection'. 20 constitute a transfer of undertaking within the meaning of Article 1(1) of the Direc- tive, to the extent that the Sigma founda- tion had taken on most of the employees of the Redmond foundation. Thus, the situa- tion in which the transferor, the Redmond 43. This is why in its judgment in Ny Mølle foundation, and the transferee, the Sigma Kro, cited above, the Court held that foundation, were not contractually linked, 'where the owner of a leased undertaking but contractual relations did exist between takes over its operation following a breach the municipality, the authority which allo- of the lease by the lessee, such a takeover cated grants to finance the work of assis- on the basis of the lease... must also be tance to drug addicts, and the Sigma foundation, the entity which carried on the activity of the Redmond foundation, 17 — Joined Cases C-171/94 and C-172/94 Merckx and Neu- huys [1996] ECR I-1253, paragraph 28. 18 — Ibidem, emphasis added. 21 — Paragraph 14. 19 — Case 287/86 Ny Mølle Kro [1987] ECR 5465, para- graph 12. 22 — Merckx and Neubuys, cited above, paragraph 30. 20 — Ibidem. 23 — Case C-29/91 Redmond Stichting [1992] ECR I-3189.

47. The decisive test for determining whe- ther the requirement of a 'legal transfer' within the meaning of the Directive is satisfied is not therefore the existence of a direct contractual link between the trans- (ii) Two distinct entities feror and the transferee, but the change of the person — legal or natural — responsi- ble for operating the undertaking and who assumes the obligations of employer vis-à- vis the employees of the undertaking. 50. The Court has already replied to the argument of the French Government to the effect that the requirement that there be two distinct entities is not satisfied in this 48. The situation described in the orders case owing to the very close links, as from for reference is that of a non-profit-making the creation of APIM, between that asso- association, APIM, which was dissolved ciation and the municipality of Metz. In its and the activity of which was wholly taken judgment in Allen and Others 25the Court over by the municipality of Metz, which was asked to rule on the question whether continues to produce and distribute, in the the Directive applied to a transfer between same form and with the majority of the two companies within the same group, which had the same owners, the same

24 — Case 324/86 Tellerup v Daddy's Dance Hall [1988] ECR 739. 25 — Case C-234/98 Allen and Others [1999] ECR I-8643.

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53. I conclude from this that APIM is an entity distinct from that which took over its 51. The Court did not accept that argu- activities, and that the Directive is applic- ment 27 and held, in particular, that 'the able to a situation such as that in point in Directive is intended to cover any legal the main proceedings provided that the change in the person of the employer if the other conditions laid down by the Directive other conditions it lays down are also met are satisfied. and that it can, therefore, apply to a transfer between two subsidiary companies in the same group, which are distinct legal persons each with specific employment relationships with their employees. The fact that the companies in question not (iii) Transfer of an economic activity only have the same ownership but also the same management and the same premises and that they are engaged in the same works makes no difference in this regard'. 28 54. The Court has consistently held that, 'in order for Directive 77/187 to be applic- 26 — Case C-73/95 P Viho v Commission [1996] ECR I-5457. able,... the transfer must relate to a stable 27 — See, for the grounds of that decision, Allen and Others, paragraphs 19 and 20, cited above. economic entity whose activity is not 28 — Ibidem, paragraph 17. limited to performing one specific works

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contract... The term "entity" thus refers to offices in no way affecting their economic an organised grouping of persons and nature. 31 assets facilitating the exercise of an eco- nomic activity which pursues a specific objective'. 29

57. According to settled case-law of the Court, 30 any activity involving the offer of goods and services in a given market 59. Furthermore, the transfer of non- constitutes an economic activity. The Court profit-making bodies has been held to fall has thus characterised as an 'economic within the material scope of Article 1(1) of activity' an activity in the form of place- Directive 77/187. 34 ment of workers, the fact that such activ- ities were normally entrusted to public 31 — Case C-55196 Job Centre [1997] ECR I-7119. 32 — Redmond Stichting, cited above. 29 — Joined Cases C-173/96 and C-247/96 Hidalgo and Others 33 — Hidalgo, cited above. [1998] ECR I-8237, paragraph 25, emphasis added. 34 —Case C-382/92 Commission v United Kingdom [1994] 30 —Case 118/85 Commission v Italy [1987] ECR 2599 and ECR I-2435, paragraph 44, or, again, Redmond Stichting, Case C-35/96 Commission v Italy [1998] ECR I-3851. cited above.

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MAYEUR

63. Furthermore, as regards Mr Mayeur's post within APIM, it is apparent from the order for reference that he was responsible for the publicity activities of APIM and, to this end, he had to canvass traders and The Court has however given a strict advertisers and collect funds for advertise- definition to that type of post. It only ments placed in the magazine Vivre à Metz, covers posts which involve a genuine parti- to draft contracts, to draw invoices and to cipation, directly or indirectly, in the exer- prepare monthly accounts showing the cise of public authority and in the functions commitments entered into. Those tasks intended to safeguard the general interests are also economic activities. of the State or other public bodies. 3 7 This definition encompasses posts which contri- bute to particular tasks of the public administration — for example, national defence, internal security, public finances, the judicial system and home affairs, posts 64. It follows from the foregoing that, in in ministries and central banks — provided the circumstances in point in the case in the that the activities in question are specifi- main proceedings, APIM — the transfer- cally centred on a political or judicial ring entity — and the municipality of power. Metz — the transferee — are indeed two distinct entities, and that the activities transferred by APIM do not fall within 35 — Henke, cited above, paragraph 17. the prerogatives of the public authority and 36 — Ibidem. See also Hidalgo, cited above, paragraph 24. 37 — Case C-290/94 Commission v Greece [1996] ECR I-3285; are economic activities. Accordingly, the C a s e C - 1 7 3 / 9 4 Commission v Belgium [1996] French Government's argument founded on ECR I-3265; and Case C-473/93 Commission v Luxem- bourg [1996] ECR I-3207. the administrative reorganisation or trans-

66. In their written observations, the French Government and APIM point out that, according to the settled case-law of the Court, Directive 77/187 can apply only if the transferred entity retains its identity. That situation presupposes not only that 68. The French Government and APIM the activity carried out by the transferee is submit that that interpretation has been identical to that previously carried out by upheld by the French Cour de Cassation. the transferor, but also that the entity itself That court has unfailing held that Arti- remains unchanged notwithstanding the cle L. 122-12 of the Labour Code must be transfer. construed as meaning that the method by which the activity carried out by the transferor, a legal or natural person gov- erned by private law, is taken over by the 38 — This position is supported by the positive law of the various Member States. transferee, a legal person governed by

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MAYEUR

72. The Commission stated at the hearing 39 — The French Government thus cites the judgment of the that it had adopted a very cautious position Chambre Sociale of the Cour de Cassation of 7 October 1992, Compagnie des Eaux et de l'Ozone v M. Elie e.a. in its written observations pending certain (Bulletin 1992, n° 500, p. 317), in which it was held that '[T]he provisions of Article L. 122-12, second subpara- clarification of the case-law of the French graph, of the Labour Code apply to the taking over by a Cour de Cassation. In particular it wished municipality of an autonomous economic entity preserving its identity, in the form of a public service of an industrial to understand the reasons for which that or commercial nature...'. court has held that Directive 77/187 may 40 — The French Government thus cites, in an annex to its be applied where an economic activity is written observations, the judgment of the Chambre Sociale of the Cour de Cassation of 24 October 1989, Société taken over by a public-sector entity char- clinique de Nouméa e.a. v M. Rousseau (Bulletin, 1989, n° 609), in which it was held that 'the liquidation of the acterised as an EPIC, but not where such an company Clinique de Nouméa at the time when its activity was taken over by a public institution of an administrative activity is taken over by a public-sector nature entailed the cessation of the undertaking...', or again, judgment n° 1389 of the Chambre Sociale of the entity characterised as an EPA. It observed Cour de Cassation, of 30 June 1983, in which it was held that no such clarification had been sup- that 'the town of Vandœuvre, in taking over the day nursery, assumed the management of a public service of an plied, either by the national tribunal or in administrative nature;... consequently the party concerned the written observations or oral argument was assumed a public-law status, which excluded the application of Article L. 122-12 of the Labour Code'. submitted to the Court. Furthermore, it

74. Mr Mayeur maintains that the purpose (b) Assessment of Directive 77/187 is to ensure the con- tinuity of employment relationships exist- ing within the framework of an economic entity, irrespective of any change of own- ership. 78. According to the settled case-law of the Court, 'the decisive criterion for establish- ing whether there is a transfer for the purposes of the Directive is whether the business in question retains its identity'. 41 75. He submits that neither the wording of Article 1 of Directive 77/187 nor the Court's case-law allow the status of the 41 — Case C-48/94 Rygaard [1995] ECR I-2745, paragraph 15, transferor or the transferee of the economic emphasis added, and the judgment cited therein.

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79. In order to determine whether that (i) The identity of the activity carried on by condition is satisfied, the Court recom- the two entities mends that the national court first consider 'whether the operation of the entity in question is actually continued or resumed by the new employer, with the same or similar economic activities'. 42 82. It is clear from the order for reference that the activity carried out by APIM was wholly taken over and continued by the City of Metz which continues, in the same form, to produce and distribute the maga- zine Vivre à Metz.

80. However, the fact that the activities carried on by the old and new employer are similar does not in itself justify the conclu- 83. I must therefore conclude that the sion that there has been a transfer of an condition as to the identity of the activity economic entity. An entity cannot be carried on by the former and new entity is reduced to the activity entrusted to it. 43 satisfied. 45

89. There is nothing in the wording of that article which allows the taking over by a 85. The national tribunal wishes to know if legal person governed by public law of an the Directive falls to be applied in a economic activity carried out by a natural situation where the transferee is a legal or legal person governed by private law to person governed by public law. be excluded from the scope of the Direc- tive.

86. All of the participants in the proceed- ings before the Court consider that the 90. That reading is confirmed by the pur- Directive is applicable to the transfer of an pose of the Directive, which is 'to ensure, so economic entity, a legal person governed by far as possible, that the rights of employees private law, to another entity, a legal person are safeguarded in the event of a change of governed by public law, which continues employer by allowing them to remain in the economic activity transferred. In other employment with the new employer on the words, the legal nature of the transferee terms and conditions agreed with the matters little if the identity of the entity is transferor'. 47 retained after the transfer. 46

87. I share that view for reasons relating to 91. In other words, the essential factor the wording of the provisions of the determining the existence of a transfer directive and its purpose, and to the case- within the meaning of Article 1(1) of the law of the Court. Directive is not the legal nature or status of the person responsible for operating the business, but the taking over of the activity 46 — It should moreover be noted that the national laws of the various Member States do not a priori exclude the application of the Directive merely because the entity which continues the activity is a legal person governed by 47 — See, in particular, Daddy's Dance Hall, cited above, public law. paragraph 9.

94. I am at a loss to find the reasons which should lead me to a different conclusion if the transferee is a legal person governed by public law. 97. As we have seen, according to the Court, the decisive criterion for determin- 48 —Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Case C-244/94 Fédération Française des Sociétés d'Assurance and Others [1995] ECR I-4013, 50 —Council Directive 98/50/EC of 29 June 1998 amending paragraph 14, and Job Centre, cited above, paragraph 21. Directive 77/187 (OJ 1998 L 201, p. 88). 49 — Paragraph 24. 51 — Subparagraph (c).

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ing a transfer within the meaning of the 100. Furthermore, the Court has also Directive is whether the transferee con- pointed out that, in carrying out that task, tinues the activity of the transferred entity, the national court or tribunal will have to or a similar activity, and whether the means assess the degree of importance to be necessary for the functioning of the under- attached to the various factors involved, taking — personnel, tangible assets (pre- having regard to all the circumstances 54, mises, stock, tools, machines...) and intan- and to the particular circumstances of the gible assets (goodwill...) — have been transferred entity 55, having regard, in par- transferred to the entity which continues ticular, to the sector of activity in which it the activity. 52 operates.

98. It is therefore for the national tribunal to determine, in the light of that definition, 101. Thus, although, in general, an orga- whether the conditions for the transfer of nised economic entity presupposes the an economic entity are satisfied. existence of a workforce and significant assets — both tangible and intangible —, such an entity may exist even though the former undertaking had no assets. 56 This was held to be so in the case of cleaning and security undertakings. 57

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of, and the rules of law applicable to, the undertaking' within the meaning of Arti- transferred entity could specifically charac- cle 1(1) of the Directive. terise an economic entity. I am thinking in particular of an undertaking operated in a specific way, 58 the transferee of which, following the transfer of the undertaking, only takes over a tiny part of the structures, as regards both staff and material. In such a case the national court might in fact be led 104. In any event, it is for the national to hold that there was no transfer, on the tribunal, in the light of the Court's defini- ground that the two entities are not iden- tion of 'identity of entity', to determine tical. such matters, and to decide whether, in a situation such as that in point in the main proceedings, having regard to the specific circumstances of the economic entity con- cerned, and in particular to the sector of activity in which it operates, the transferred entity has retained its identity after the transfer.

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harmonisation of the rights of Community substantial change in working conditions to workers in the event of a change of the detriment of the employee, brought employer following a transfer of an under- about solely by the transfer. 60 Accordingly, taking, but only to ensure, as far as in accordance with Article 1(1), read in possible, that the contract of employment conjunction with Article 4(2), of the Direc- or employment relationship continues tive, a situation such as that thus described unchanged with the transferee. The pur- would fall within the scope of the Directive. pose of the Directive is, therefore, to As a result, there would indeed be a prevent employees affected by a transfer transfer of an undertaking and it would of an undertaking from being placed in a be incumbent on the new employer, the less favourable position solely by reason of transferee of the activity previously carried the transfer. Consequently, the Directive on by the former entity, to assume respon- could not be interpreted as meaning that it sibility for the dismissal brought about by requires the Member States to amend their reason of his act. 61 national law in order to enable an entity governed by public law to maintain in force contracts of employment governed by pri- vate law, contrary to the applicable national rules.

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