Case C‑416/16

Luís Manuel Piscarreta Ricardo

v

Portimão Urbis EM SA and Others

(Request for a preliminary ruling from the Tribunal Judicial da Comarca de Faro)

(Reference for a preliminary ruling — Directive 2001/23 — Article 1(1)(b) — Article 2(1)(d) — Transfer of undertakings — Safeguarding of employees’ rights — Scope — Concepts of ‘employees’ and ‘transfer of a business’)

Summary — Judgment of the Court (Eighth Chamber), 20 July 2017

1. Social policy—Approximation of laws—Transfers of undertakings—Safeguarding of employees’ rights—Directive 2001/23—Scope—Public-law body—Included

   (Council Directive 2001/23, Art. 1(1))

2. Social policy—Approximation of laws—Transfers of undertakings—Safeguarding of employees’ rights—Directive 2001/23—Scope—Entity engaged in economic activities—Meaning—Criteria

   (Council Directive 2001/23, Art. 1(1))

3. Social policy—Approximation of laws—Transfers of undertakings—Safeguarding of employees’ rights—Directive 2001/23—Scope—Transfer as a result of a legal transfer or merger—Meaning—Criteria

   (Council Directive 2001/23, Art. 1(1))

4. Social policy—Approximation of laws—Transfers of undertakings—Safeguarding of employees’ rights—Directive 2001/23—Scope—Transfer of an economic entity which retains its identity—Meaning—Criteria

   (Council Directive 2001/23, Art. 1(1))

5. Social policy—Approximation of laws—Transfers of undertakings—Safeguarding of employees’ rights—Directive 2001/23—Scope—Winding up of a municipal undertaking and transfer of its activities in part to the municipality, the sole shareholder in that undertaking, and in part to another municipal undertaking—Included—Condition—Retention of the identity of the undertaking in question—Verification by the national court

   (Council Directive 2001/23, Art. 1(1))

6. Social policy—Approximation of laws—Transfers of undertakings—Safeguarding of employees’ rights—Directive 2001/23—Employee—Meaning—Person who is not actually performing his duties because his employment contract is suspended but who is protected as an employee by the national law concerned—Included—Verification by the national court

   (Council Directive 2001/23, Art. 2(1)(d))

7. Questions referred for a preliminary ruling—Admissibility—Conditions—Questions related to the actual facts of the action or its purpose

   (Art. 267 TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 94)

1.  See the text of the decision.

   (see para. 32)

2.  See the text of the decision.

   (see paras 33-35)

3.  See the text of the decision.

   (see paras 36-39)

4.  See the text of the decision.

   (see paras 40, 41, 43, 44)

5.  Article 1(1) 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 must be interpreted to the effect that, where a municipal undertaking, whose sole shareholder is a municipality, is wound up by a decision of the municipality’s executive body and its activities are transferred in part to the municipality to be carried on directly by it and in part to another municipal undertaking re-formed for that purpose, whose sole shareholder is also that same municipality, that situation falls within the scope of the directive, provided that the identity of the undertaking in question is preserved after the transfer, which is a matter for the referring court to determine.

   (see para. 46, operative part 1)

6.  A person such as the applicant in the main proceedings who, because his employment contract is suspended, is not actually performing his duties, is covered by the concept of ‘employee’ within the meaning of Article 2(1)(d) of Directive 2001/23 in so far as that person is protected as an employee under the national law concerned, which is, however, a matter for the referring court to verify. Subject to that verification, in circumstances such as those at issue in the main proceedings, the rights and obligations arising from that person’s employment contract must be considered to have been transferred to the transferee, in accordance with Article 3(1) of the directive.

   (see para. 54, operative part 2)

7.  See the text of the decision.

   (see paras 56, 59-61)