Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. In the instant cases, the Court has had referred to it a number of questions by two German courts, the Arbeitsgericht Bamberg (Case C-132/91) and the Arbeitsgericht Hamburg (Cases C-138/91 and C-139/91). The questions are concerned with the compatibility with Articles 3 and 7 of Council Directive 77/187/EEC (hereinafter referred to as "the directive") (1) of case-law of the Bundesarbeitsgericht, according to which an employee has a right to object to the transfer of his employment relationship in the event of a transfer or a merger of undertakings.
Facts and relevant legislation
2. Subparagraphs 1 and 2 of Paragraph 613a of the Buergerliches Gesetzbuch [German Civil Code ° BGB], which were inserted into the BGB by the Betriebsverfassungsgesetz of 15 January 1972 [Law on the organization of businesses] (2) before the directive was adopted provide as follows:
"(1) Where an undertaking or a part of an undertaking is transferred by means of a legal transaction to another owner, the latter shall take over the rights and obligations arising under the employment relationships existing at the time of the transfer ... .
(2) The former employer shall be jointly and several liable together with the new owner for the obligations referred to in subparagraph 1 in so far as they arose before the date of the transfer and have to be fulfilled no later than one year after that date. However, where those obligations have to be performed after the date of the transfer, the former employer shall be liable only to the extent corresponding to the part of the period which had elapsed at the time of the transfer to which those obligations relate."
3. By a law of 13 August 1980, (3) Paragraph 613a of the BGB was amended as part of the process of implementing the directive. However, the excerpt from subparagraphs 1 and 2 of that paragraph which is reproduced above was not amended. In 1974, shortly after the introduction of Paragraph 613a of the BGB, the Bundesarbeitsgericht, which is the highest German court with jurisdiction over labour cases, evolved case-law according to which, where part of an undertaking is transferred by means of a legal transaction to another owner, employees are not bound to accept the automatic transfer of their contracts of employment to the transferee. Employees have a right of objection in so far as they may declare that the legal effects of the transfer are not to apply as far as they are concerned. (4) In subsequent judgments, the Bundesarbeitsgericht has confirmed that case-law and defined the rules governing the right of objection. (5) The Bundesarbeitsgericht initially identified the legal basis of the right of objection as the principle of protection of workers, as embodied in Paragraph 613a of the BGB. Subsequently, it identified as its legal basis the civil-law principle that no one can be obliged against his will to accept a change of debtor, the personal nature of an employment relationship, and the personal freedoms and freedom to chose one' s occupation enshrined in the German Basic Law. (6)
4. The facts of Case C-132/91 are as follows. Mr Katsikas, the plaintiff in the main proceedings, was employed as a cook by the Greek restaurant "Fischtaverne" at Lichtenfels, which was owned by Mr Konstantinidis, the defendant in the main proceedings. By a contract concluded between Mr Konstantinidis and a Mr Mitossis, the operation of the business was transferred to Mr Mitossis with effect from 2 April 1990. In that contract, Mr Mitossis undertook to discharge Mr Konstantinidis with effect from that date from all obligations arising in connection with the operation of the restaurant, in particular, from obligations relating to the payment of wages and salaries. Mr Katsikas objected to being transferred to a new employer and asked Mr Konstantinidis to take him on at another of his restaurants. On 26 June 1990, Mr Konstantinidis dismissed him on behalf, he claims, of Mr Mitossis. Thereupon, Mr Katsikas brought an action in the Arbeitsgericht (Labour Court) Bamberg for the payment of remuneration to which he considered he was entitled for the period prior to his dismissal and for the period of notice which he should have been given. In his defence, Mr Konstantinidis claimed that he was not Mr Katsikas' employer at the date of his dismissal, since he had transferred the employment relationship with Mr Katsikas to Mr Mitossis along with his restaurant.
5. In those circumstances, the Arbeitsgericht Bamberg requested the Court to give a preliminary ruling on the following questions:
"1. Is it possible under Article 3(1) of the Council Directive 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 (Directive 77/187/EEC) for an employee of the transferor at the date of transfer within the meaning of Article 1(1) of Directive 77/187/EEC to object to the transfer of rights and obligations from the transferor to the transferee, with the result that the transferor' s rights and obligations are not transferred to the transferee?
2. If Question I is answered in the negative:
Is a right of objection as referred to above, which is provided for under the national law of a Member State, a more favourable rule for employees within the meaning of Article 7 of Directive 77/187/EEC?
3. If Question 2 is answered in the affirmative:
Is Article 7 of Directive 77/187/EEC to be interpreted as meaning that it must refer to express provisions of laws, regulations or administrative measures (which are more favourable to employees)?
4. If Question 3 is answered in the negative:
Is Article 7 of Directive 77/187/EEC to be interpreted as meaning that the courts and tribunals in the Member States may, in interpreting national laws, regulations or administrative provisions, create 'rules' within the meaning of Article 7 of Directive 77/187/EEC?"
6. The facts in Cases C-138/91 and C-139/91 are as follows. Mr Skreb and Mr Schroll were employees of PCO Stauereibetrieb Paetz & Co. Nachfolger GmbH (hereinafter referred to as "Paetz"). Mr Skreb had worked there since 1968 as a docker, stack-driver and heavy stack-driver, whilst Mr Schroll had been employed as a docker for about nine years. On 1 October 1990, Paetz transferred the stevedoring department of its business to Carl Tiedemann GmbH & Co. (hereinafter referred to as "Tiedemann"). Mr Skreb and Mr Schroll, along with a number of other employees, objected pursuant to Paragraph 613a(1) of the BGB to the transfer of their employment relationships to Tiedemann. By letter dated 8 October 1990, Paetz terminated Mr Skreb' s and Mr Schroll' s employment relationships, giving the relevant notice.
They therefore brought an action to protect themselves against dismissal. They maintained that their employment relationship with Paetz remained unchanged; they had not been transferred to Tiedemann under Paragraph 613a of the BGB or brought to an end by termination on 8 October 1990. They claimed that their objection prevented the transfer of their employment relationships to the new owner of the relevant part of the business as a result of the case-law of the Bundesarbeitsgericht. They claimed that their dismissal as notified by the aforementioned letter was baseless and socially unjustified, and that they should continue to be employed by Paetz.
For its part, Paetz argued that there was no employment relationship between it and the plaintiffs in the main proceedings. Their objection to the transfer of their employment relationships was contrary to Community law and therefore invalid. Under the directive, an employee' s employment relationship was automatically transferred to the transferee of a business, and the employee could not object to this.
7. The Arbeitsgericht Hamburg considered that the proceedings raised a question relating to the interpretation of the directive and referred the following question to the Court in Cases C-138/91 and C-139/91:
"Does the grant to an employee of a right of objection by which, in the event of a transfer of the business, he can prevent the transfer of his employment relationship to the transferee of the business, constitute a more favourable legal provision within the meaning of Article 7 of Council Directive 77/187/EEC?"
Elucidation of the questions
8. The three cases raise the same key question, namely whether the grant to an employee of a right of objection, the exercise of which has the effect of preventing the employee' s employment relationship with the transferor from being transferred to the transferee, is compatible with the directive. However, the two German courts have taken somewhat different approaches to the issue. The Arbeitsgericht Bamberg takes Article 3(1) of the directive as its starting point, and asks whether the right of objection is compatible with that provision. In the event that it is not compatible therewith, it goes on to ask whether such a right of objection may be provided for in accordance with Article 7 of the directive by a law, regulation or administrative provision expressly or impliedly, namely by means of a judicial interpretation. In contrast, in Cases C-138/91 and C-139/91, the Arbeitsgericht Hamburg makes its question turn directly on Article 7 of the directive.
9. For the sake of a proper understanding of the questions, I shall reproduce the articles of the directive which are mentioned in the questions.
Article 3(1) of the directive provides as follows:
"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.
Member States may provide that, after the date of transfer within the meaning of Article 1(1) and in addition to the transferee, the transferor shall continue to be liable in respect of obligations which arose from a contract of employment or an employment relationship."
Comparison of Article 3(1) of the directive and subparagraphs 1 and 2 of Paragraph 613a of the BGB shows that the first subparagraph of Article 3(1) corresponds more or less to the part of Paragraph 613a(1) set out above and that Paragraph 613a(2) contains more precise rules within the meaning of the second subparagraph of Article 3(1) of the directive.
As for Article 7 of the directive, it states as follows:
"This Directive shall not affect the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees."
10. Having regard to the background legislation, I take the view that the Arbeitsgericht Bamberg was right to connect the issue in the first place with Article 3(1) of the directive and only secondly with Article 7. The issue concerns essentially the question as to the extent to which Article 3(1) and hence also the national provision implementing Article 3(1) ° that is to say, in the case of Germany Paragraph 613a of the BGB, which was adapted to suit the directive by the Law of 13 August 1980 ° authorizes employees to dispose over the legal protection afforded by the directive by means of a legal transaction (namely, a unilateral legal transaction adopted by the employee alone).
I would add forthwith, however, that as far as the principle of the right of objection is concerned it does not make much difference whether that right, as created by the case-law of the Bundesarbeitsgericht, is assessed directly in the light of Article 3(1) of the directive or in the light of Article 7. As in the case of Article 7, it also turns in the case of Article 3(1) (see section 16, above) essentially on whether or not such a right of objection is more favourable to employees.
11. I shall deal with the national courts' questions as follows. I shall first consider whether under Article 3(1) of the directive as such an employee is entitled to object to the transfer of his employment relationship to the transferee or whether that provision precludes a priori such a right of objection. In that connection, I shall give my views on whether the right of objection is, or is not, more favourable to employees than the system laid down by the directive and, if I find that it is, on what conditions. Lastly, I shall be considering whether the case-law of the Bundesarbeitsgericht can be described as a more favourable provision within the meaning of Article 7 of the directive. Before answering those questions, it seems worth calling to mind again the aim and system of the directive and the relevant case-law of the Court of Justice.
Aim and system of the directive
12. The Court has already explained the aim and system of the directive on several occasions. Since the restructuring operations and mergers entailed by the establishment of the Common Market cannot be carried out at the expense of the social protection of employees, the purpose of the directive is to
"ensure, as far as possible, that the rights of employees are safeguarded in the event of a change of employer by allowing them to remain in employment with the new employer on the terms and conditions agreed with the transferor". (7)
Consequently, the directive manifestly has a social aim: in the event of a transfer of an undertaking, it aims to safeguard, in the employee' s interest, existing employment relationships and social rights acquired in the context of such relationships. (8) It is from that aim that the provisions of Article 3(1) and Article 4(1) ° which provides that the transfer shall not in itself constitute grounds for dismissal by the transferor or the transferee ° flow. (9)
13. The only restriction on the protection afforded by the directive which the Court has recognized to date relates to the situation in which the employee voluntarily terminates his contract after the transfer of the undertaking. As the Court held in the judgment in Danmols Inventar and confirmed in D' Urso, the protection which the directive is intended to guarantee is
"redundant where the person concerned decides of his own accord not to continue the employment relationship with the new employer after the transfer. That is the case where the employee in question terminates the employment contract or employment relationship of his own free will with effect from the date of the transfer, or where that contract or relationship is terminated with effect from the date of the transfer by virtue of an agreement voluntarily concluded between the worker and the transferor or the transferee of the undertaking. In that situation Article 3(1) of the directive does not apply." (10)
It may appear from that judgment that the directive seeks to protect employees provided that at the date of the transfer they are still employed in the business or the part of the business transferred by the transferor, which is not the case where they have terminated their employment relationship of their own accord at the date of the transfer.
14. Although, according to the preamble, (11) the directive seeks to reduce the differences remaining in the Member States as regards the extent of the protection of employees, it is settled that the protective rules which it lays down are merely minimum Community rules. In other words, as the Court held in the judgments in Danmols Inventar and Daddy' s Dance Hall, the directive is not intended to establish a uniform level of protection throughout the Community on the basis of common criteria: essentially it simply aims to extend the protection guaranteed to workers independently by the laws of the individual Member States to cover the case where an undertaking is transferred. (12) Consequently, and given that the aim of the directive is essentially a social one, the Member States may, under Article 7 of the directive, apply or introduce provisions which are more favourable to employees.
Compatibility of a right of objection with Article 3(1) of the directive
15. In common with the Commission, I consider that no right of objection, the exercise of which would result in the employment relationship being maintained with the transferor, arises for the employee under Article 3(1) of the directive. This clearly follows from the judgment in Berg v Besselsen. In that case, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) asked the Court whether it followed from Article 3(1) of the directive that, after the date of the transfer, the transferor is released from his obligations under the contract of employment or the employment relationship (solely by reason of the transfer), even where the employees of the undertaking do not consent to that effect or oppose it. The Court' s answer was clear:
"An analysis of Article 3(1) and, more particularly, the relationship between the first and second subparagraphs of this paragraph show that the transfer of an undertaking entails the automatic transfer from the transferor to the transferee of the employer' s obligations arising from a contract of employment or an employment relationship, subject however to the right of Member States to provide for joint liability of the transferor and transferee following the transfer. It follows that, unless the Member States avail themselves of this possibility, the transferor is released from his obligations as an employer solely by reason of the transfer and that this legal consequence is not conditional on the consent of the employees concerned." (13)
The Court rejected the employers' argument that such an interpretation would not be consistent with the aim of the directive. After calling to mind that which it had consistently held (see section 12 et seq., above), the Court stated as follows with regard to the aims of the directive:
"Its purpose is not, however, to ensure that the contract of employment or the employment relationship with the transferor is continued where the undertaking' s employees do not wish to remain in the transferee' s employ." (14)
16. It is quite a different question whether Article 3(1) also precludes such a right of objection on the part of employees or, in other words, whether it opposes it. (15) That does not seem to me to result as such from the case-law of the Court. It is clear only that in the judgment in Daddy' s Dance Hall the Court expressly held that employees could not consent, even voluntarily, to a diminution of the rights granted to them by the directive, in particular as regards protection against dismissal. In making that determination, the Court referred to the social aim of the directive:
"Since this protection is a matter of public policy, and therefore independent of the will of the parties to the contract of employment, the rules of the directive, in particular those concerning the protection of workers against dismissal by reason of the transfer, must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees." (16)
The Court went on to hold that
"It follows that the employees concerned are not entitled to waive the rights conferred on them by the directive and that those rights cannot be restricted even with their consent. This interpretation is not affected by the fact that, as in this case, the employee obtains new benefits in compensation for the disadvantages resulting from an amendment to his contract of employment so that, taking the matter as a whole, he is not placed in a worse position than before." (17)
The Court added that the position would be different only in so far as national law allowed the employment relationship to be altered in a manner unfavourable to employees in situations other than the transfer of an undertaking. If, under national law, the transferor of the undertaking is entitled to alter (with the employee' s agreement) the rights and duties arising under the employment relationship, the transferee may do the same within the same limits, although the transfer of the undertaking itself may never constitute the reason for that amendment. (18) However, these cases do indeed relate to transfers of undertakings and hence the rule that parties to a contract of employment may not derogate from the provisions of the directive in a manner which is unfavourable to the employee and therefore may not restrict his rights applies unabated.
17. It should therefore be considered whether the employee' s right to oppose the transfer of his employment relationship to a new employer in the event of a transfer of an undertaking gives rise to a diminution of his rights by comparison with the situation in which he would find himself if the rules of the directive were applied simpliciter.
Both the Arbeitsgericht Hamburg in its order for reference and the Commission in its written observations to the Court are somewhat hesitant about the answer to be given to this question. The Arbeitsgericht observes that from the point of view of the possibilities open to the individual employee ° that is to say, from the point of view of his freedom ° the right of objection is unquestionably a provision that is more favourable to employees, but that, having regard to the potentially greater risk of dismissal by his present employer after the transfer, the employee' s situation is not necessarily more favourable from the point of view of social protection. For its part, the Commission considers that, in order for the right of objection to be regarded as being more favourable in every case, it would be necessary to subject its exercise to certain conditions. (19) However, it concedes that such a solution would not be easy to put into actual practice, and goes on to conclude that the right of objection, as laid down and justified in the Bundesarbeitsgericht' s case-law, nevertheless constitutes a more favourable provision within the meaning of Article 7 of the directive.
18. It seems clear to me that a right of objection on the part of the employee does not in principle worsen his situation, quite the contrary. Where, as in Germany, the exercise of that right results in the employment relationship with the present employer continuing, while all the employee' s rights, including those laid down in collective agreements, are retained, I take the view that the possibility thereby afforded to the employee of continuing his relationship with his present employer rather than moving to a new one constitutes a substantial advantage to the employee. He may have good reasons for opting for this solution, for example if he has no confidence in the transferee' s business strategy, solvency or personnel policy (including his policy on maintaining and paying pensions) or, in the case of a legal person, in the management of the corporate transferee.
Of course, if the transferor closes down the activities of his business completely and has no other business capable of taking the employee on, maintaining his employment relationship with his former employer entails an increased risk of the employee' s being dismissed by that employer on economic grounds ("betriebsbedingte Kuendigung"). However, even in that case, the transfer of the undertaking cannot itself, under Article 4(1) of the directive, constitute grounds for dismissal. In any event, I consider that the employee himself is best placed to assess that risk in liaison with the transferor.
19. This brings me to a point which seems to me to be essential. I consider, in common with the Commission, that the exercise of a right of objection is not unconditionally more favourable to employees. It can only be more favourable if it is exercised in a context embodying a number of guarantees for the employee. To my mind, those guarantees consist either of an agreement with the transferor, setting out the consequences of the exercise of the right of objection, or in a set of rules of law which, in accordance with Article 7 of the directive, particularize that right of objection in a manner which is favourable to the employee.
I shall be returning later to the second part of that alternative. The first part, namely the conclusion of an agreement, may, in my opinion, be clarified as follows. (20) It is obvious that, where an employee wishes to exercise his right of objection, he will discuss it with his employer, the transferor. Such a discussion is in the interests of both parties, certainly where a number of employees, or even whole groups, wish to exercise their right of objection. In such case, both the employees and transferor need to have an accurate picture of the stability of the employment situation in the transferor' s undertaking and to know whether, how and where the employees may be assigned after the transfer of the business. However, in order for such a discussion to afford a guarantee for the employees, the outcome must be set out in a binding agreement. The fact that an employee may validly conclude such an agreement is implicit in the case-law of the Court, according to which the employee may, without infringing Article 3(1) of the directive, terminate his employment relationship with effect from the date on which the undertaking is transferred (see section 13, above). If an employee is entitled to bring his employment relationship completely to an end, he may, a fortiori, agree with his present employer to maintain his employment relationship with him after the transfer.
Of course, it is for the national courts to assess whether the agreement concluded does not involve concessions on the part of the employees which would diminish their rights. It is only where the right of objection is hedged about in this way with guaranties set out in an agreement binding on the present employer that it will, in my view, comply with the rule that the parties to a contract of employment are not entitled to derogate from the mandatory rules of the directive in a manner which is unfavourable to the employees. (21)
Is the right of objection a provision which is more favourable to employees within the meaning of Article 7 of the directive?
20. The guarantees which, in my view, should be given to the employee when he exercises his right of objection may ° in the absence of an agreement between the employee and the transferor, as is the case here, ° obviously also ensue from a general law, regulation or administrative provision applicable in the Member State in question which is more favourable to employees within the meaning of Article 7 of the directive. That is the situation in Germany, at least if an affirmative answer is given to the national courts' questions as to whether a judicial interpretation of a law, regulation or administrative provision can be equated with such a provision.
In common with the German Government and the Commission, I consider that that question can in fact be answered in the affirmative in cases such as those before the national courts, that is to say, cases in which the judicial interpretation is based on the consistent case-law of the highest court having jurisdiction over employment disputes, the provision in question (here Paragraph 613a of the BGB) is itself a legal provision within the meaning of Article 7 of the directive and the consistent case-law is part and parcel of that provision. Since that case-law already existed when Paragraph 613a of the BGB was adapted to suit the directive (see section 3, above), it can be regarded as having been impliedly approved by the national legislator when the directive was transposed into national law, and can therefore be considered to be a provision which the Member State can continue to apply within the meaning of Article 7.
21. Of course, additionally the judicial rules must be in all respects "more favourable to employees" within the meaning of Article 7 of the directive. I have already mentioned that that is true of the actual principle of the right of objection as it has been laid and justified in the case-law of the Bundesarbeitsgericht (see section 18, above). In so far as the Court has been informed about them, (22) the rules governing the right of objection, as they have been evolved by the Bundesarbeitsgericht, do not seem to be incompatible with the directive either. As a rule, that right has to be exercised expressly before the transfer; only if the employee has not been informed in due time of the intended transfer, may he make his choice in a short period following the transfer. (23) Since, therefore, the employee must express his objection before the transfer, there is no infringement of the principle contained in the directive of the automatic transfer (24) of his rights and obligations to the transferee: the exercise of the right of objection results in the employment relationship between the employee and the transferor being maintained and the employment relationship no longer forms part of the business or part of a business which has been transferred. In my view, the limited exception in cases where the employee is not informed or informed belatedly does not alter matters: it is perfectly proper that such negligence on the part of the employer should not place the employee at a disadvantage. (25)
Conclusion
22. I propose that the Court should answer the questions referred by the Arbeitsgericht Bamberg and the Arbeitsgericht Hamburg as follows:
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 does not prevent a Member State from conferring on employees the right to declare that the legal effects of a transfer of an undertaking are not to apply with regard to them, as a result of which their contracts of employment with the transferor will be maintained, provided that it is guaranteed ° by means of an agreement between the employees and the employer or under a law, regulation or administrative provision within the meaning of Article 7 of the directive ° that that right of objection is more favourable to employees, not only in principle but also in practice.
Case-law of the highest national court with jurisdiction over employment disputes laying down a right of objection as defined above may be regarded as being a provision within the meaning of Article 7 of the directive where it relates to the interpretation of a national legislative provision and was already consistent case-law at the time when the directive was transposed into national law, as is the case here.
(*) Original language: Dutch.
(1) ° 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).
(2) ° Bundesgesetzblatt I, p. 13.
(3) ° Bundesgesetzblatt I, p. 1308.
(4) ° Judgment of the Bundesarbeitsgericht of 2 October 1974, BAG AP, Paragraph 613a of the BGB, paragraph 1.
(5) ° Judgments of 21 July 1977, BAG AP, Paragraph 613a of the BGB, paragraph 8, of 17 November 1977, BAG AP, Paragraph 613a of the BGB, paragraph 10, of 6 February 1980, BAG AP, Paragraph 613a of the BGB, paragraph 21, of 15 February 1984, BAG AP, Paragraph 613a of the BGB, paragraph 37, and, most recently, of 30 October 1986, BAG AP, Paragraph 613a of the BGB, paragraph 55.
(6) ° In its written observations, the German Government also claims that the right of objection is based on the prohibition of forced or compulsory labour set out in Article 4(2) of European Convention on Human Rights.
(7) ° Judgments in Case 287/86 Ny Moelle Kro [1987] ECR 5465, paragraph 12, in Case 324/86 Foreningen af Arbejdsledere i Danmark v Daddy' s Dance Hall [1988] ECR 739, paragraph 9, in Joined Cases 144/87 and 145/87 Berg v Besselsen [1988] ECR 2559, paragraph 12, in Case 101/87 Bork [1988] ECR 3057, paragraph 13, and in Case 326/89 D' Urso [1991] ECR I-4105, paragraph 9.
(8) ° Judgments in Berg v Besselsen, paragraph 13, and in D' Urso, paragraph 9.
(9) ° For an outline of the system of the directive, see, inter alia, the judgments in Case 19/83 Wendelboe [1985] ECR 457, paragraph 15, and in Ny Moelle Kro, paragraph 11.
(10) ° Judgments in Case 105/84 Foreningen af Arbejdsledere i Danmark v Danmols Inventar [1985] ECR 2639, paragraph 16, and in D' Urso, paragraph 11.
(11) ° Third recital in the preamble to the directive.
(12) ° Judgments in Danmols Inventar, paragraph 26, and Daddy' s Dance Hall, paragraph 16.
(13) ° Judgment in Berg v Besselsen, paragraph 11.
(14) ° Judgment in Berg v Besselsen, paragraph 12.
(15) ° Yet another question has been raised in Case C-126/92 Esser ° which is still pending ° that is to say whether, in so far as it does not provide for a right of objection, Article 3(1) is incompatible with the right freely to exercise one' s occupation. I shall not consider that issue in this Opinion. Suffice it to say that, if it appeared at first blush to be incompatible with that fundamental right, Article 3(1) could still be interpreted consistently with it, at least in so far as the view is taken (as taken by myself later in this Opinion) that Article 3(1) does not preclude such a right of objection on the part of employees.
(16) ° Judgment in Daddy' s Dance Hall, paragraph 14; this passage has recently been confirmed in paragraph 11 of the judgment in D' Urso.
(17) ° Judgment in Daddy' s Dance Hall, paragraph 15.
(18) ° Ibid., paragraph 17.
(19) ° For a summary of the Commission' s views, see the Report for the Hearing.
(20) ° This part of the alternative is not really relevant to the present cases, since the other part of the alternative affords a solution in Germany (see sections 20 and 21, above). It may, however, be relevant in the case of other Member States in which, according to the data made available to the Court, there are no rules laid down by law, administrative provision or case-law on any right of objection.
(21) ° Judgment in Daddy' s Dance Hall, cited in section 16, paragraphs 14 and 15.
(22) ° There is plainly no need to consider here ° and the national courts have not asked the Court to do so ° whether other aspects of the case-law of the Bundesarbeitsgericht on transfers of undertakings comply with the directive. This applies in particular to Article 4(1) of the directive, under which the transfer shall not in itself constitute grounds for dismissal by the transferor or the transferee (see Paragraph 613a(4) of the BGB), and to the manner in which that provision is applied with regard to employees who exercise their right of objection so as to remain in the employ of their former employers and whom those employers subsequently wish to dismiss.
(23) ° The precise duration of that period is not specified in the case-law. Some academic writers suggest that it is one month, others two weeks.
(24) ° See the passage from the judgment in Berg v Besselsen reproduced in section 15, above.
(25) ° Moreover, failure to inform employees about the transfer in due time before it is to take place infringes the employer' s obligations referred to in Article 6(1) of the directive.
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