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ICTS Portugal — Consultadoria de Aviação Comercial SA, by A.L. Santos, advogado,

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the Portuguese Government, by L. Inez Fernandes, M. Figueiredo and L.C. Oliveira, acting as Agents,

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the Finnish Government, by H. Leppo, acting as Agent,

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the European Commission, by M. França and M. Kellerbauer, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 1(1)(a) of Council Directive 2001/23/EC of 12 March 2001 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 undertakings or businesses (OJ 2001 L 82, p. 16).

2

The request was made in proceedings between (i) Securitas — Serviços e Tecnologia de Segurança SA (‘Securitas’) and (ii) ICTS Portugal — Consultadoria de Aviação Comercial SA (‘ICTS’) and Mr Arthur George Resendes and 16 other persons, in their capacity as former employees of ICTS, concerning Securitas’ refusal to acknowledge that the employment relationships between those employees and ICTS were transferred to Securitas by way of a transfer of a business.

3

Recital 3 of Directive 2001/23 reads as follows:

‘It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded.’

4

Recital 8 of the directive states:

‘Considerations of legal security and transparency required that the legal concept of transfer be clarified in the light of the case-law of the Court of Justice. Such clarification has not altered the scope of Directive 77/187/EEC as interpreted by the Court of Justice.’

5

Article 1(1)(a) and (b) of Directive 2001/23 provides:

6

Under the first subparagraph of Article 3(1) of Directive 2001/23:

‘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.’

7

Article 285 of the Codigo do trabalho (Employment Code), approved by Law No 7/2009 of 12 February 2009, provides:

‘1.   In the event of transfer, by whatever means, of the ownership of an undertaking or business or a part of an undertaking or business that constitutes an economic unit, the capacity of employer under the employment contracts of the employees concerned shall be transferred to the purchaser, together with the liability to pay any fines imposed in respect of employment law infringements.

2.   The transferor shall be jointly and severally liable, in respect of obligations which came into being up to the date of the transfer, for the period of one year following that transfer.

3.   The provisions of the preceding paragraphs shall also apply to the transfer, assignment or resumption of control of the operation of an undertaking, business or economic unit and, in the event of assignment or resumption, the party carrying out that operation immediately before the assignment or resumption shall be jointly and severally liable.

4.   The preceding paragraphs shall not apply to an employee who, before the transfer, has been transferred by the transferor to another business or economic unit, within the meaning of Article 194, while being retained in the transferor’s service, with the exception of matters concerning the liability of the transferor regarding payment of any fines imposed in respect of employment law infringements.

5.   An organised grouping of resources which has the objective of pursuing an economic activity shall be considered to be an economic unit, whether that activity is central or ancillary.

6.   Infringement of the first paragraph and the first part of the third paragraph constitutes an aggravated infringement.’

8

Clause 13 of the Collective Agreement concluded in 2011 by the Associação de Empresas de Segurança Privada (Association of private security undertakings), the Associação Nacional das Empresas de Segurança (National association of security undertakings) and, inter alia, the Sindicato dos Trabalhadores dos Serviços de Portaria, Vigilância, Limpeza, Domésticas e Actividades Diversas (Trade union for security guard services, monitoring services, cleaning services, domestic services and various activities), published in the Boletim do Trabalho e Emprego (Labour and Employment Bulletin) No 17/2011, provides:

9

Mr Resendes and 16 other persons, in their capacity as employees of ICTS, performed security guard duties until 14 July 2013 in the facilities (marina, port, dock) of Portos dos Açores SA located in Ponta Delgada (Portugal), under a contract between Portos dos Açores and ICTS.

10

They were, inter alia, responsible for monitoring the entry and exit of persons and goods, by means of video surveillance devices, in accordance with rules laid down for them by ICTS. Their employer also provided them with uniforms and radio equipment.

11

On 17 January 2013, Portos dos Açores launched a call for tenders for the provision of security guard and preventive security services in its facilities in Ponta Delgada. On 17 April 2013, that contract was awarded to Securitas.

12

The employees of ICTS maintain before the referring court that, on 17 June 2013, ICTS informed them in writing that, following the award of the contract to Securitas with effect from 15 July 2013, their employment contracts would, from that date, be transferred to Securitas.

13

On 14 July 2013, an employee of ICTS surrendered to an employee of Securitas the radio equipment used by the employees of ICTS in the facilities of Portos dos Açores, having received instructions from his employer to that effect. Securitas then surrendered that equipment to Portos dos Açores.

14

Securitas began performing its security guard services on 15 July 2013. It provided the security guards assigned to the performance of those services with radio equipment belonging to it and identical uniforms featuring the logo of the undertaking.

15

Securitas also informed Mr Resendes and the other 16 persons concerned that they were not part of its staff and that ICTS remained their employer. Consequently, they brought actions before the Tribunal do Trabalho de Ponta Delgada (Labour Court, Ponta Delgada, Portugal) against Securitas and ICTS requesting that Securitas or, in the alternative, ICTS be ordered to acknowledge that they are part of its staff and to pay their salaries plus interest for late payment from 15 July 2013 or, for three of them, compensation for wrongful dismissal.

16

That court upheld the actions. It held that there had been a transfer of a business between the two companies and that the employment contracts of the former employees of ICTS had been transferred to Securitas. As a result, it classified their dismissal by Securitas as ‘wrongful’ and ordered that company to reinstate the majority of the persons concerned and pay them various salary claims and compensation.

17

Securitas brought an appeal against that judgment before the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon), which upheld the judgment given at first instance.

18

Securitas consequently brought an exceptional appeal on a point of law before the Supremo Tribunal de Justiça (Supreme Court, Portugal). That court has doubts, in essence, as to whether the replacement of ICTS by Securitas for the provision of security guard services in the facilities of Portos dos Açores, following the award to Securitas of a service contract, falls within the notion of a ‘transfer of an undertaking [or] business’ within the meaning of Article 1(1)(a) of Directive 2001/23.

19

In those circumstances, the Tribunal Supremo de Justiça (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

20

By order of the President of the Court of 24 May 2016, the referring court’s request for a ruling to be given in this case under the expedited procedure provided for in Article 105(1) of the Rules of Procedure of the Court of Justice was dismissed.

21

By its first two questions, which should be examined together, the referring court asks, in essence, whether Article 1(1)(a) of Directive 2001/23 must be interpreted as meaning that, where a contracting entity has terminated the contract concluded with one undertaking for the provision of security guard services at its facilities, then concluded a new contract for the supply of those services with another undertaking, which refuses to take on the employees of the first undertaking, that situation falls within the concept of a ‘transfer of an undertaking [or] business’ within the meaning of that provision.

22

Under Article 1(1)(a), Directive 2001/23 applies to any transfer of an undertaking, business or part of an undertaking or business to another employer as a result of a legal transfer or merger.

23

It that regard, it should be recalled that, in accordance with the settled case-law of the Court, Directive 2001/23 is applicable whenever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the undertaking and entering into the obligations of an employer towards employees of the undertaking. Thus there is no need, in order for Directive 2001/23 to be applicable, for there to be any direct contractual relationship between the transferor and the transferee: the transfer may take place through the intermediary of a third party (see, inter alia, judgments of 7 March 1996, Merckx and Neuhuys, C‑171/94 and C‑172/94, EU:C:1996:87, paragraphs 28 and 30, and of 20 November 2003, Abler and Others, C‑340/01, EU:C:2003:629, paragraph 39).

24

It follows that the lack of a contractual link between the two undertakings successively entrusted with managing the surveillance and security of port facilities has no bearing on the question as to whether or not Directive 2001/23 is applicable to a situation such as that at issue in the main proceedings.

25

It should also be noted that, in accordance with Article 1(1)(b) of Directive 2001/23, the applicability of that directive is also subject to the condition that the transfer concerns ‘an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether that activity is central or ancillary’.

26

In order to determine whether that condition is met, it is necessary to consider all the facts characterising the transaction in question, including in particular the type of undertaking or business, whether or not its tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended. Those circumstances must be considered as part of the overall assessment of the circumstances of the particular case and cannot therefore be considered in isolation (see, to that effect, judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 32 and the case-law cited).

27

In particular, the Court has held that a national court, in assessing the facts characterising the transaction in question, must take into account among other things the type of undertaking or business concerned (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 33).

28

It follows that the degree of importance to be attached to each criterion for determining whether or not there has been a transfer within the meaning of Directive 2001/23 will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 34).

29

The Court has therefore held that, in a sector where the activity is based essentially on manpower, the identity of an economic entity cannot be retained if the majority of its employees are not taken on by the alleged transferee (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 35).

30

Where, however, the activity is based essentially on equipment, the fact that the former employees of an undertaking are not taken over by the new contractor to perform that activity, as in the case in the main proceedings, is not sufficient to preclude the existence of a transfer of an economic entity which retains its identity, within the meaning of Directive 2001/23. Any other conclusion would run counter to the principal objective of Directive 2001/23, which is to ensure the continuity, even against the wishes of the transferee, of the employment contracts of the employees of the transferor (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 41).

31

Consequently, it is for the referring court to determine, in the light of the foregoing considerations and taking into account all the facts characterising the transaction at issue in the main proceedings, whether that transaction must be regarded as a transfer of an undertaking within the meaning of Directive 2001/23.

32

To that end, it will be for that court, inter alia, to verify whether ICTS transferred to Securitas, directly or indirectly, equipment or tangible or intangible assets for the purpose of carrying out security guard activities in the facilities in question.

33

The referring court will also have to determine whether such assets were made available to ICTS and Securitas by Portos dos Açores. In that regard, it should be recalled that the fact that the tangible assets essential to the performance of the activity at issue in the main proceedings and taken over by the new contractor did not belong to its predecessor but were merely provided by the contracting entity cannot preclude the existence of a transfer of an undertaking within the meaning of Directive 2001/23 (judgment of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraphs 38 and 39). However, only the equipment that is actually used in order to provide the security guard services, excluding the facilities that are the subject of those services, must, where appropriate, be taken into consideration for the purpose of establishing the existence of a transfer of an entity which retains its identity within the meaning of Directive 2001/23 (judgment of 29 July 2010, UGT-FSP, C‑151/09, EU:C:2010:452, paragraph 31).

34

In the light of all the foregoing considerations, the answer to the first two questions is that Article 1(1)(a) of Directive 2001/23 must be interpreted as meaning that, where a contracting entity has terminated the contract concluded with one undertaking for the provision of security guard services at its facilities, then concluded a new contract for the supply of those services with another undertaking, which refuses to take on the employees of the first undertaking, that situation falls within the concept of a ‘transfer of an undertaking [or] business’ within the meaning of that provision, when the equipment essential to the performance of those services has been taken over by the second undertaking.

35

By its third question, the referring court asks, in essence, whether Article 1(1) of Directive 2001/23 must be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, which provides that the loss of a customer by an operator following the award of a service contract to another operator does not fall within the concept of a ‘transfer of an undertaking [or] business’ within the meaning of Article 1(1).

36

In that regard, the Court has already held that the mere loss of a service contract to a competitor cannot by itself indicate the existence of a transfer within the meaning of Directive 2001/23 (judgment of 11 March 1997, Süzen, C‑13/95, EU:C:1997:141, paragraph 16). However, a provision of national law that generally excludes the loss of a customer by an operator following the award of a service contract to another operator from the scope of that concept does not allow all the facts characterising the transaction in question to be taken into consideration.

37

Therefore, bearing in mind, first, the settled case-law of the Court, recalled in paragraphs 26 and 27 of the present judgment, and, secondly, the objective of Directive 2001/23 which, as is apparent from recital 3 thereof, is to protect employees by ensuring that their rights are safeguarded in the event of a change of employer, it must be held that Article 1(1) of that directive is to be interpreted as precluding such a provision of national law.

38

In those circumstances, the answer to the third question is that Article 1(1) of Directive 2001/23 must be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, which provides that the loss of a customer by an operator following the award of a service contract to another operator does not fall within the scope of the concept of a ‘transfer of an undertaking [or] business’ within the meaning of Article 1(1).

39

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules: