EU-domstolens avgörande :
Dom av den 7 februari 1985, Botzen m.fl., 186/83, EU:C:1985:58

Grounds

1BY JUDGMENT OF 25 AUGUST 1983 , WHICH WAS RECEIVED AT THE COURT ON 1 SEPTEMBER 1983 , THE KANTONRECHTER , ROTTERDAM , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS AS TO THE INTERPRETATION OF CERTAIN PROVISIONS OF COUNCIL DIRECTIVE NO 77/187 OF 14 FEBRUARY 1977 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE SAFEGUARDING OF EMPLOYEES ’ RIGHTS IN THE EVENT OF TRANSFERS OF UNDERTAKINGS , BUSINESS OR PARTS OF BUSINESSES ( OFFICIAL JOURNAL 1977 L 61 , P . 26 ).

2THOSE QUESTIONS WERE RAISED IN PROCEEDINGS INSTITUTED BY ARIE BOTZEN AND OTHERS AGAINST ROTTERDAMSCHE DROOGDOK MAATSCHAPPIJ BV .

3THE PLAINTIFFS IN THE MAIN PROCEEDINGS WERE EMPLOYEES OF ROTTERDAMSCHE DROOGDOK MAATSCHAPPIJ HEIJPLAAT BV ( HEREINAFTER REFERRED TO AS ’ THE OLD RDM ’ ), WHICH WAS DECLARED INSOLVENT BY JUDGMENT OF 6 APRIL 1983 . IN ORDER TO AVOID TOTAL LIQUIDATION OF THAT UNDERTAKING AND WITH A VIEW TO SAFEGUARDING AS LARGE A PROPORTION AS POSSIBLE OF THE JOBS , A NEW COMPANY , ROTTERDAMSCHE DROOGDOK MAATSCHAPPIJ BV ( HEREINAFTER REFERRED TO AS ’ THE NEW RDM ’ ) WAS CONSTITUTED ON 30 MARCH 1983 .

4ON 7 APRIL 1983 , AN AGREEMENT WAS CONCLUDED BETWEEN THE OLD RDM AND THE NEW RDM . UNDER THAT AGREEMENT , THE NEW RDM TOOK OVER CERTAIN DEPARTMENTS OF THE OLD RDM AND ALL THE STAFF ASSIGNED THERETO , AND IN ADDITION TOOK OVER A NUMBER OF EMPLOYEES OF THE DEPARTMENTS NOT TRANSFERRED TO IT , NAMELY THE GENERAL AND ADMINISTRATIVE DEPARTMENTS . HOWEVER , THE OTHER WORKERS , INCLUDING THE PLAINTIFFS IN THE MAIN PROCEEDINGS , WERE DISMISSED BY THE LIQUIDATORS OF THE OLD RDM .

5CONSIDERING THEIR DISMISSAL TO BE INVALID ON THE GROUND THAT THEY HAD IPSO JURE ENTERED THE SERVICE OF THE NEW RDM ON THE DATE OF THE TRANSFER , THE PLAINTIFFS IN THE MAIN PROCEEDINGS BROUGHT AN ACTION AGAINST THE NEW RDM BEFORE THE KANTONRECHTER , ROTTERDAM , SEEKING PAYMENT OF THE SALARY DUE FROM 7 APRIL 1983 UNTIL SUCH TIME AS THEIR EMPLOYMENT RELATIONSHIP MIGHT BE TERMINATED . THEY ALSO REQUESTED , AS AN INTERIM MEASURE , THAT THE NEW RDM SHOULD BE ORDERED TO PAY THEM , AS FROM 7 APRIL 1983 , OR , IN THE ALTERNATIVE , AS FROM THE DATE OF THE DECISION TO BE GIVEN , A MONTHLY AMOUNT EQUIVALENT TO THEIR SALARY AND TO ALLOW THEM TO CARRY OUT THEIR USUAL WORK . IN SUPPORT OF THEIR ACTION , THEY CLAIMED THAT THE TRANSACTION AT ISSUE WAS TO BE REGARDED AS A TRANSFER OF A BUSINESS OR PART OF A BUSINESS WITHIN THE MEANING OF ARTICLES 1639 AA AND 1639 BB OF THE NETHERLANDS CIVIL CODE , INTRODUCED BY THE LAW OF 15 MAY 1981 FOR THE PURPOSE OF IMPLEMENTING COUNCIL DIRECTIVE NO 77/187 OF 14 FEBRUARY 1977 .

6DIRECTIVE NO 77/187 , WHICH WAS ADOPTED BY THE COUNCIL ON THE BASIS OF , IN PARTICULAR , ARTICLE 100 OF THE TREATY , IS INTENDED , IN THE TERMS OF ITS PREAMBLE , ’ TO PROVIDE FOR THE PROTECTION OF EMPLOYEES IN THE EVENT OF A CHANGE OF EMPLOYER , IN PARTICULAR , TO ENSURE THAT THEIR RIGHTS ARE SAFEGUARDED ’ . FOR THAT PURPOSE , ARTICLE 3 ( 1 ) THEREOF PROVIDES THAT : ’ THE TRANSFEROR ’ S RIGHTS AND OBLIGATIONS ARISING FROM A CONTRACT OF EMPLOYMENT OR FROM AN EMPLOYMENT RELATIONSHIP EXISTING ON THE DATE OF A TRANSFER … SHALL , BY REASON OF SUCH TRANSFER , BE TRANSFERRED TO THE TRANSFEREE . ’ ARTICLE 4 ( 1 ) PROVIDES FOR THE PROTECTION OF THE WORKERS CONCERNED AGAINST DISMISSAL BY THE TRANSFEROR OR THE TRANSFEREE , BUT DOES NOT STAND IN THE WAY OF ’ DISMISSALS THAT MAY TAKE PLACE FOR ECONOMIC , TECHNICAL OR ORGANIZATIONAL REASONS ENTAILING CHANGES IN THE WORK-FORCE ’ . IN ADDITION , ARTICLE 6 OF THE DIRECTIVE REQUIRES THE TRANSFEROR AND THE TRANSFEREE TO INFORM AND CONSULT THE REPRESENTATIVES OF THE WORKERS AFFECTED BY THE TRANSFER . FINALLY , ARTICLE 7 PROVIDES THAT THE DIRECTIVE IS NOT TO ’ AFFECT THE RIGHT OF MEMBER STATES TO APPLY OR INTRODUCE LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS WHICH ARE MORE FAVOURABLE TO EMPLOYEES ’ .

7CONSIDERING THAT THE DECISION TO BE GIVEN DEPENDED ON THE INTERPRETATION OF DIRECTIVE NO 77/187 , THE KANTONRECHTER , ROTTERDAM , STAYED THE PROCEEDINGS AND SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :

THE FIRST QUESTION

8THE FIRST QUESTION IS IDENTICAL TO A QUESTION SUBMITTED IN CASE 135/83 ( ABELS ), IN WHICH JUDGMENT HAS TODAY BEEN DELIVERED .

9IN THAT JUDGMENT , THE COURT RULED , WITH RESPECT TO THAT QUESTION , THAT :

10FOR THE GROUNDS OF THAT RULING , REFERENCE SHOULD BE MADE TO THE JUDGMENT IN THAT CASE , THE TEXT OF WHICH IS ANNEXED TO THIS JUDGMENT .

THE SECOND AND THIRD QUESTIONS

11THE SECOND AND THIRD QUESTIONS ARE ESSENTIALLY INTENDED TO ASCERTAIN WHETHER ARTICLE 3 ( 1 ) OF DIRECTIVE NO 77/187 MUST BE INTERPRETED AS EXTENDING TO A TRANSFEROR ’ S RIGHTS AND OBLIGATIONS ARISING FROM A CONTRACT OF EMPLOYMENT OR EMPLOYMENT RELATIONSHIP EXISTING ON THE DATE OF THE TRANSFER AND ENTERED INTO WITH EMPLOYEES WHO , ALTHOUGH NOT BELONGING TO THE PART OF THE UNDERTAKING WHICH WAS TRANSFERRED , CARRY ON CERTAIN ACTIVITIES USING THE ASSETS ASSIGNED TO THE TRANSFERRED PART , OR WHO , BEING ASSIGNED TO AN ADMINISTRATIVE DEPARTMENT OF THE UNDERTAKING WHICH WAS NOT ITSELF TRANSFERRED , CARRIED OUT CERTAIN DUTIES FOR THE BENEFIT OF THE TRANSFERRED PART OF THE UNDERTAKING .

12ARTICLE 3 ( 1 ) PROVIDES THAT : ’ THE TRANSFEROR ’ S RIGHTS AND OBLIGATIONS 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 ’ .

13IN THAT CONNECTION , ROTTERDAMSCHE DROOGDOK MAATSCHAPPIJ CLAIMS THAT ONLY EMPLOYEES WORKING FULL-TIME OR SUBSTANTIALLY FULL-TIME IN THE TRANSFERRED PART OF THE UNDERTAKING ARE COVERED BY THE TRANSFER OF EMPLOYMENT RELATIONSHIPS , TO THE EXCLUSION OF THOSE ENGAGED IN PARTIAL TASKS IN VARIOUS BUSINESSES OR PARTS OF BUSINESSES AND THOSE WHO , ALTHOUGH WORKING FOR SEVERAL BUSINESSES OR PARTS OF BUSINESSES , FORM PART OF THE REMAINING STAFF .

14 ON THE OTHER HAND , THE COMMISSION CONSIDERS THAT THE ONLY DECISIVE CRITERION REGARDING THE TRANSFER OF EMPLOYEES ’ RIGHTS AND OBLIGATIONS IS WHETHER OR NOT A TRANSFER TAKES PLACE OF THE DEPARTMENT TO WHICH THEY WERE ASSIGNED AND WHICH FORMED THE ORGANIZATIONAL FRAMEWORK WITHIN WHICH THEIR EMPLOYMENT RELATIONSHIP TOOK EFFECT .

15THE COMMISSION ’ S VIEW MUST BE UPHELD . AN EMPLOYMENT RELATIONSHIP IS ESSENTIALLY CHARACTERIZED BY THE LINK EXISTING BETWEEN THE EMPLOYEE AND THE PART OF THE UNDERTAKING OR BUSINESS TO WHICH HE IS ASSIGNED TO CARRY OUT HIS DUTIES . IN ORDER TO DECIDE WHETHER THE RIGHTS AND OBLIGATIONS UNDER AN EMPLOYMENT RELATIONSHIP ARE TRANSFERRED UNDER DIRECTIVE NO 77/187 BY REASON OF A TRANSFER WITHIN THE MEANING OF ARTICLE 1 ( 1 ) THEREOF , IT IS THEREFORE SUFFICIENT TO ESTABLISH TO WHICH PART OF THE UNDERTAKING OR BUSINESS THE EMPLOYEE WAS ASSIGNED .

16THE ANSWER TO THE SECOND AND THIRD QUESTIONS MUST THEREFORE BE THAT ARTICLE 3 ( 1 ) OF DIRECTIVE NO 77/187 MUST BE INTERPRETED AS NOT COVERING THE TRANSFEROR ’ S RIGHTS AND OBLIGATIONS ARISING FROM A CONTRACT OF EMPLOYMENT OR AN EMPLOYMENT RELATIONSHIP EXISTING ON THE DATE OF THE TRANSFER AND ENTERED INTO WITH EMPLOYEES WHO , ALTHOUGH NOT EMPLOYED IN THE TRANSFERRED PART OF THE UNDERTAKING , PERFORMED CERTAIN DUTIES WHICH INVOLVED THE USE OF ASSETS ASSIGNED TO THE PART TRANSFERRED OR WHO , WHILST BEING EMPLOYED IN AN ADMINISTRATIVE DEPARTMENT OF THE UNDERTAKING WHICH HAS NOT ITSELF BEEN TRANSFERRED , CARRIED OUT CERTAIN DUTIES FOR THE BENEFIT OF THE PART TRANSFERRED .