Summary
Parties
Grounds
Decision on costs
Operative part
Keywords

Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of employees' rights - Directive 77/187 - Scope - Termination by an employer of a cleaning contract with an independent contractor in order to conclude a contract with another - No transfer of significant assets or taking over by the new employer of a major part of the workforce - Excluded

(Council Directive 77/187, Art. 1(1))

Summary

Article 1(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses is to be interpreted as meaning that the directive does not apply to a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking, if there is no concomitant transfer from one undertaking to the other of significant tangible or intangible assets or taking over by the new employer of a major part of the workforce, in terms of their numbers and skills, assigned by his predecessor to the performance of the contract.

The concept of transfer within the meaning of the directive relates to cases in which an economic entity - that is to say an organized grouping of persons and assets facilitating the exercise of an economic activity which pursues an objective specific to it - retains its identity following the transaction in question. In those circumstances, the mere loss of a service contract to a competitor cannot by itself indicate the existence of such a transfer. Furthermore, whilst it is conceivable that, in certain sectors in which the business is based essentially on the workforce, an economic entity is able to function without any significant tangible or intangible assets and may be constituted by a group of workers engaged in a joint activity on a permanent basis, it is necessary in addition, for there to be a transfer within the meaning of the directive, for that group to continue to exist after the taking over of an essential part of the workforce by the new awardee of the contract.

Parties

In Case C-13/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Arbeitsgericht, Bonn, for a preliminary ruling in the proceedings pending before that court between

Ayse Süzen

and

Zehnacker Gebäudereinigung GmbH Krankenhausservice, Lefarth GmbH, party joined

on the interpretation of Council Directive 77/187/EEC 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, businesses or parts of businesses (OJ 1977 L 61, p. 26),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.C. Moitinho de Almeida, J.L. Murray and L. Sevón (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann, D.A.O. Edward, J.-P. Puissochet (Rapporteur), G. Hirsch, P. Jann and H. Ragnemalm, Judges,

Advocate General: A. La Pergola,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

- Zehnacker Gebäudereinigung GmbH Krankenhausservice, by Christof Brößke, Rechtsanwalt, Villingen,

- the German Government, by Ernst Röder, Ministerialrat in the Federal Ministry of the Economy, and Gereon Thiele, Assessor in the same ministry, acting as Agents,

- the Belgian Government, by Jan Devadder, Director of Administration in the Legal Service of the Ministry of Foreign Affairs, acting as Agent,

- the French Government, by Edwige Belliard, Assistant Director, Directorate of Legal Affairs in the Ministry of Foreign Affairs, and Anne de Bourgoing, Chargé de Mission in the same directorate, acting as Agents,

- the United Kingdom Government, by John E. Collins, Assistant Treasury Solicitor, acting as Agent, and Derrick Wyatt QC,

- the Commission of the European Communities, by Christopher Docksey, of its Legal Service, and Horstpeter Kreppel, a national civil servant on secondment to that service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mrs Süzen, represented by Christoph Krämer, Rechtanswalt, Bonn; Zehnacker Gebäudereinigung GmbH Krankenhausservice, represented by Christof Brößke; Lefarth GmbH, represented by Nikolaus Christ, Rechtsanwalt, Rösrath; the German Government, represented by Ernst Röder; the French Government, represented by Anne de Bourgoing; the United Kingdom Government, represented by Derrick Wyatt; and the Commission of the European Communities, represented by Klaus-Dieter Borchardt, of its Legal Service, acting as Agent, at the hearing on 18 June 1996,

after hearing the Opinion of the Advocate General at the sitting on 15 October 1996,

gives the following

Judgment

Grounds

1 By order of 30 November 1994, received at the Court Registry on 18 January 1995, the Arbeitsgericht (Labour Court), Bonn, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Council Directive 77/187/EEC 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, businesses or parts of businesses (OJ 1977 L 61, p. 26, hereinafter `the directive').

2 Those questions were raised in proceedings brought by Mrs Süzen against Zehnacker Gebäudereinigung GmbH Krankenhausservice (hereinafter `Zehnacker').

3 Mrs Süzen was employed by Zehnacker, which assigned her to cleaning operations in the premises of the Aloisiuskolleg, a secondary school in Bonn-Bad-Godesberg, Germany, under a cleaning contract concluded between that school and Zehnacker. Zehnacker dismissed Mrs Süzen, together with seven other employees who, like her, worked as cleaners at the school, by reason of the fact that the Aloisiuskolleg terminated the contract between it and Zehnacker with effect from 30 June 1994.

4 The Aloisiuskolleg then contracted the cleaning of its premises to Lefarth GmbH (hereinafter `Lefarth'), the party joined in the main proceedings, with effect from 1 August 1994. The order for reference does not state whether Lefarth offered to re-engage the employees dismissed by Zehnacker.

5 Mrs Süzen instituted proceedings before the Arbeitsgericht, Bonn, for a declaration that the notice of dismissal served on her by Zehnacker had not brought to an end her employment relationship with the latter.

6 Considering that the decision to be given depended on an interpretation of the directive, the Arbeitsgericht stayed proceedings pending a preliminary ruling from the Court of Justice on the following questions:

`1. On the basis of the judgments of the Court of Justice of 14 April 1994 in Case C-392/92 Schmidt [1994] ECR I-1311 and of 19 May 1992 in Case C-29/91 Redmond Stichting [1992] ECR I-3189, is Directive 77/187/EEC applicable if an undertaking terminates a contract with