OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 18 February 1986

My Lords,

This case concerns Council Directive 77/187 on the rights of employees in the event of transfers of undertakings, businesses or parts of businesses (Official Journal 1977, L 61, p. 26).

That Directive has already been considered by the Court on a number of occasions, but none of the judgments has any direct bearing on the questions raised in these proceedings.

In its application brought pursuant to Article 169 of the Treaty, the Commission claimed that Belgium had failed properly to implement the second subparagraph of Article 3 (3) and the second subparagraph of Article 4 (1) of the Directive. The two grounds of complaint were wholly independent of one another.

The Commission has now withdrawn its complaint in relation to Article 3 (3) as the Belgian legislation has been amended and is in force. Accordingly, I need not say anything further about that complaint.

Article 4 (1) reads as follows:

‘The transfer of an undertaking, business or part of a business shall not in itself constitute grounds for dismissal by the transferor or by the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organizational reasons entailing changes in the work force.

Member States may provide that the first subparagraph shall not apply to certain specific categories of employees who are not covered by the laws or practice of the Member States in respect of protection against dismissal.’

It appears that, according to a statement recorded in the minutes of the Council, Member States were to inform the Commission within six months of the notification of the Directive of the categories of employees excluded pursuant to the second subparagraph. By a letter dated 4 August 1977 the Belgian Permanent Representative to the Community informed the Commission that employees undergoing a trial period and employees who had reached the age of retirement would be so excluded. This was duly effected by a Royal Decree of 19 April 1978 which gave the force of law to Collective Bargaining Agreement No 32 of 28 February 1978. Article 7 of that Agreement excluded those two categories of employee as well as persons bound by a student's employment contract.

The Commission maintains that Belgium was and is not entitled to exclude any of these three categories of employee from the protection flowing from the first subparagraph of Article 4 (1) of the Directive. This is because all of them enjoy some protection from dismissal under Belgian law, albeit that they are subject to shorter periods of notice than most employees.

It is not disputed that these categories of employee all enjoy a limited degree of protection. According to Article 48 (4) and 81 of the Law of 3 July 1978, employees undergoing a trial period must be given at least seven days' notice in the absence of serious cause for dismissal expiring in any event not earlier than the last day of the first month of the trial period. The same period of notice is due to employees with less than six months' unbroken service in an undertaking, by virtue of Article 60 of the same Law. Similarly Article 83 of that Law lays down a minimum period of six months' notice for employees other than manual workers who have reached the age of retirement, save that where the employee has completed less than five years' service that period shall be reduced by half. The same rules apply to commercial travellers by virtue of Article 87. No special periods of notice are laid down for manual workers who have reached the age of retirement; the normal periods of notice provided for in Article 59 are applicable. Thus they are subject to 28 days' notice unless they have worked more than 20 years in the undertaking; in the latter case the period of notice is doubled. Finally, Article 130 relates to employed students. In so far as is relevant, it stipulates that: ‘Where a person is engaged for no more than one month, the period of notice to be given by the employer shall be three days ... Where the person is engaged for more than one month, the period of notice to be given by the employer shall be seven days ... ’. If the contract provides for a trial period, then by virtue of Article 127 Article 48 applies.

Belgium contests the admissibility of this part of the Commission's case. It claims to have notified the measures complained of by the letter of 4 August 1977, which was only a few months after the notification of the Directive. Accordingly, the Commission should have objected to those measures within a reasonable time. Instead, the Commission did not do so until its letter of 5 March 1982 initiating the proceedings under Article 169.

This objection is not, in my view, valid. In Case 7/71 (Commission v France [1971] ECR 1003 at p. 1016), an argument to the same effect was rejected by the Court as being inappropriate in relation to Article 141 of the Euratom Treaty. Since the wording of that provision is identical to that of Article 169 of the EEC Treaty, the principle established by that judgment applies equally here. To prevent the Commission from bringing proceedings in relation to a continuing infringement, as Belgium suggests, would undermine the Commission's role in ensuring that Community law is properly applied, as required by Article 155 of the Treaty.

In any case, the Commission could not have brought infringement proceedings until well after receiving the Belgian Government's letter of 4 August 1977. That letter merely informed the Commission of the measures which the Government intended to take. The ensuing Royal Decree was not adopted until 19 April 1978. Moreover, according to Article 8 of the Directive, Member States were not required to implement it until two years after it was notified to them. Accordingly, it does not seem to me as a matter of fact that the Commission delayed unreasonably in this case.

Next, Belgium contests the substance of the Commission's claim. In its view the purpose of protecting employees is to dissuade employers from dismissing them. No such element of dissuasion is necessary or relevant in relation to employees undergoing a trial period and employees who have reached the age of retirement. Belgium concludes that these categories of employee may be excluded pursuant to the second subparagraph of Article 4 (1) of the Directive even though under Belgian law they enjoy a limited degree of protection.

I do not accept this argument. The subparagraph concerned speaks of ‘certain specific categories of employees who are not covered by the laws or practice of the Member States in respect of protection against dismissal’. It thus refers only to persons who enjoy no protection against dismissal under the national laws and practices concerned. Thus Belgium's suggestion that the subparagraph extends to persons enjoying only a limited degree of protection against dismissal runs counter to the clear wording of the provision in question.

The purpose of the Directive is to ensure that so far as possible an employee's rights and obligations are maintained intact in the event of a transfer. The Directive does not aim to confer increased rights on him in that event. Consequently the Directive merely requires that the period of notice and the other conditions under which a person may be dismissed after the transfer remain the same as they were before it. This is of course without prejudice to the right of Member States contained in Article 7 of the Directive to apply or introduce laws or regulations or administrative provisions which are more favourable to employees.

The same considerations apply to persons bound by a student's employment contract.

Accordingly, by excluding these three categories of persons, Belgium failed to give effect to the Directive.

Belgium concedes that its legislation infringes the Directive with respect to students on another ground. As already mentioned, a statement in the Council's minutes recorded that Member States were to inform the Commission of the persons excluded pursuant to the second subparagraph of Article 4 (1). Belgium's letter of 4 August 1977 did not mention students. In consequence of this, Belgium accepts that it was not entitled to exclude students from the protection flowing from the first subparagraph of Article 4 (1). It is not necessary to decide this point, but I am not satisfied that it is right. I doubt whether failure to comply with the statement in the Council minutes is sufficient to prevent an otherwise valid restriction from being relied on.

However, for the reasons given, I conclude that Belgium has infringed the second subparagraph of Article 4 (1) of Council Directive 77/187 in that it has excluded from the benefit of that Article employees undergoing a trial period, employees who have reached the age of retirement and persons bound by a student's employment contract.

Belgium should in my view pay the costs of these proceedings.