Case C‑458/12

Lorenzo Amatori and Others

v

Telecom Italia SpA

and

Telecom Italia Information Technology Srl

(Request for a preliminary ruling from the Tribunale di Trento)

‛Reference for a preliminary ruling — Social policy — Transfer of undertakings — Safeguarding of employees’ rights — Directive 2001/23/EC — Transfer of employment relationships in the event of a legal transfer of part of a business that cannot be identified as a pre-existing autonomous economic entity’

Summary — Judgment of the Court (Ninth Chamber), 6 March 2014

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Identification of the subject-matter of the question

   (Art. 267 TFEU)

2. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees' rights — Directive 2001/23 — Scope — Transfer of employment relationships in the event of a legal transfer of part of a business that cannot be identified as a pre-existing autonomous economic entity — Not included — Assessment by the national court

   (Council Directive 2001/23)

3. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees' rights — Directive 2001/23 — National legislation permitting the transferee to take over the employment relationship from the transferor if that part of the undertaking does not constitute a functionally autonomous economic entity existing before the transfer — Provision more favourable than the directive — Lawfulness

   (Council Directive 2001/23, Arts 1(1)(a) and (b) and 8)

4. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees' rights — Directive 2001/23 — Scope — Take over by the transferee of the employment relationships from the transferor if, after the transfer of part of an undertaking, the transferor exercises extensive, overriding powers over the transferee — Included

   (Council Directive 2001/23)

5. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees' rights — Directive 2001/23 — National legislation enabling the takeover by the transferee of the employment relationships from the transferor, if, after the transfer of part of an undertaking, the transferor exercises extensive, overriding powers over the transferee — Lawfulness

   (Council Directive 2001/23, Art. 1(1)(a) and (b)

1.  See the text of the decision.

   (see paras 24-28, 45, 46)

2.  See the text of the decision.

   (see paras 29-35)

3.  Article 1(1)(a) and (b) of Directive 2001/23 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 must be interpreted as not precluding national legislation which, on the transfer of part of the undertaking, permits the transferee to take over the employment relationship from the transferor if that part of the undertaking does not constitute a functionally autonomous economic entity existing before the transfer.

   Although it is true that, should prove that the entity transferred did not, before the transfer, have sufficient functional autonomy, that transfer would not be covered by Directive 2001/23.

   However, the mere lack of functional autonomy of the entity transferred cannot, in itself, prevent a Member State from ensuring in its national law for the safeguarding of employees’ rights after the change of employer.

   That finding is supported by Article 8 of Directive 2001/23, which provides that the directive does not affect the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees.

   That directive is intended to achieve only partial harmonisation of the area in question and is not intended to establish a uniform level of protection throughout the European Union on the basis of common criteria, but to ensure that the employee is protected in his relations with the transferee to the same extent as he was in his relations with the transferor under the legal rules of the Member State concerned.

   (see paras 35, 39-42, operative part 1)

4.  See the text of the decision.

   (see paras 47-51)

5.  Article 1(1)(a) and (b) of Directive 2001/23 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 must be interpreted as not precluding national legislation which enables the transferee to take over the employment relationships from the transferor if, after the transfer of part of the undertaking concerned, it exercises extensive, overriding powers over the transferee.

   (see para. 52, operative part 2)