Case C‑688/13

Gimnasio Deportivo San Andrés SL

(Request for a preliminary ruling from the Juzgado de lo Mercantil No 3 de Barcelona)

‛Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Transfer of undertaking — Safeguarding of employees’ rights — Interpretation of Directive 2001/23/EC — Transferor that is subject to insolvency proceedings — Guarantee that the transferee is not to be liable for certain debts of the undertaking transferred’

Summary — Order of the Court (Sixth Chamber), 28 January 2015

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Examination of the compatibility of national law with EU law — Not included — Providing the national court with full guidance on the interpretation of EU law — Included — Reformulation of the questions

   (Art. 267 TFEU)

2. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees' rights — Directive 2001/23 — Exceptions — Transfer during insolvency proceedings — Member State opted to make use of Article 5(2) of Directive 2001/23 — National legislation providing or allowing for no transfer of liability in respect of the transferor’s debts, including those related to the statutory social security system, arising from contracts of employment or employment relationships — Whether applicable to charges arising from contracts of employment terminated before the date of transfer — Lawfulness — Conditions

   (Council Directive 2001/23, Arts. 3(4)(b) and 5(2))

1.  See the text of the decision.

   (see paras 30-33)

2.  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 meaning that:

   —

   in a situation where, in the context of the transfer of an undertaking, the transferor is the subject of insolvency proceedings which are under the supervision of a competent public authority and where the Member State concerned has chosen to make use of Article 5(2) of Directive 2001/23, that Article does not prevent that Member State from prescribing or permitting that charges payable by the transferor on the date of the transfer or the opening of the insolvency proceedings as a result of contracts of employment or employment relationships — including charges relating to the statutory social security system — are not to be transferred to the transferee, provided that such proceedings ensure a level of protection for employees which is at least equivalent to that resulting from Directive 80/987 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer. Nevertheless, that Member State is not precluded from prescribing that such charges are to be borne by the transferee, even where the transferor is insolvent;

   —

   subject to the provisions laid down in Article 3(4)(b), Directive 2001/23 does not lay down any obligations so far as concerns the charges payable by the transferor as a result of contracts of employment or employment relationships terminated before the date of transfer, but it does not preclude national legislation of Member States which permits such charges to be transferred to the transferee.

   (see para. 59, operative part)

Case C‑688/13

Gimnasio Deportivo San Andrés SL

(Request for a preliminary ruling from the Juzgado de lo Mercantil No 3 de Barcelona)

‛Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Transfer of undertaking — Safeguarding of employees’ rights — Interpretation of Directive 2001/23/EC — Transferor that is subject to insolvency proceedings — Guarantee that the transferee is not to be liable for certain debts of the undertaking transferred’

Summary — Order of the Court (Sixth Chamber), 28 January 2015

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Examination of the compatibility of national law with EU law — Not included — Providing the national court with full guidance on the interpretation of EU law — Included — Reformulation of the questions

   (Art. 267 TFEU)

2. Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees' rights — Directive 2001/23 — Exceptions — Transfer during insolvency proceedings — Member State opted to make use of Article 5(2) of Directive 2001/23 — National legislation providing or allowing for no transfer of liability in respect of the transferor’s debts, including those related to the statutory social security system, arising from contracts of employment or employment relationships — Whether applicable to charges arising from contracts of employment terminated before the date of transfer — Lawfulness — Conditions

   (Council Directive 2001/23, Arts. 3(4)(b) and 5(2))

1.  See the text of the decision.

   (see paras 30-33)

2.  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 meaning that:

   —

   in a situation where, in the context of the transfer of an undertaking, the transferor is the subject of insolvency proceedings which are under the supervision of a competent public authority and where the Member State concerned has chosen to make use of Article 5(2) of Directive 2001/23, that Article does not prevent that Member State from prescribing or permitting that charges payable by the transferor on the date of the transfer or the opening of the insolvency proceedings as a result of contracts of employment or employment relationships — including charges relating to the statutory social security system — are not to be transferred to the transferee, provided that such proceedings ensure a level of protection for employees which is at least equivalent to that resulting from Directive 80/987 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer. Nevertheless, that Member State is not precluded from prescribing that such charges are to be borne by the transferee, even where the transferor is insolvent;

   —

   subject to the provisions laid down in Article 3(4)(b), Directive 2001/23 does not lay down any obligations so far as concerns the charges payable by the transferor as a result of contracts of employment or employment relationships terminated before the date of transfer, but it does not preclude national legislation of Member States which permits such charges to be transferred to the transferee.

   (see para. 59, operative part)