1.

In the present case, the arbeidshof te Antwerpen (Higher Labour Court, Antwerp, Belgium) has referred a question to the Court of Justice for a preliminary ruling on the interpretation of Articles 3 to 5 of Directive 2001/23/EC. ( 2 )

2.

That question was raised in proceedings between Christa Plessers and Prefaco NV, a company having its registered office in Belgium, concerning the lawfulness of Ms Plessers’ dismissal.

3.

Examining that question will lead the Court to address, for the second time, whether the exception under Article 5(1) of Directive 2001/23 applies to a national undertaking restructuring procedure. Specifically, the Court is asked to examine, in the light of that article, the transfer of an undertaking in the context of judicial restructuring proceedings by transfer under judicial supervision. If the Court finds that the proceedings in question do not fall within the exception under Article 5(1) of Directive 2001/23, it will have to rule, from the perspective of the employee protection scheme under Articles 3 to 4 of that directive, on whether, as established by the national legislation, the transferee is entitled to choose the employees it wishes to keep on at the time of the transfer.

4.

Article 3 of Directive 2001/23 provides as follows:

‘1.   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.

…’

5.

Article 4(1) of that directive provides as follows:

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

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.’

6.

Article 5(1) of that directive reads as follows:

‘1.   Unless Member States provide otherwise, Articles 3 and 4 shall not apply to any transfer of an undertaking, business or part of an undertaking or business where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of a competent public authority (which may be an insolvency practitioner authorised by a competent public authority).’

7.

Article 22 of the wet betreffende de continuïteit der ondernemingen (Belgian Law on the continuity of undertakings) ( 3 ) of 31 January 2009 (‘the WCO’) provides as follows:

‘Until such time as the court has ruled on the application for judicial reorganisation, irrespective of whether the proceedings were instituted or an enforcement procedure was commenced before or after the application was filed:

8.

Article 60 of the WCO provides as follows:

‘The judgment ordering the transfer will appoint a court officer responsible for organising and performing the transfer for and on behalf of the debtor. That judgment will determine the subject matter of the transfer or leave it at the discretion of the court officer. …’

9.

According to Article 61(4) of the WCO:

‘The transferee is entitled to choose the employees it wishes to keep on. That choice must be determined by technical, economic or organisational reasons and must be made without any prohibited differentiation, in particular on the basis of any activity carried on as a staff representative in the undertaking or part of an undertaking transferred.

There will be deemed to be no prohibited differentiation in that respect if the proportion of employees and their representatives who were active in the undertaking or part of an undertaking transferred who are chosen by the transferee remains the same in the total number of employees chosen.’

10.

Ms Plessers worked at Echo NV in Houthalen-Helchteren (Belgium) from 17 August 1992 as head of management accounting.

11.

On 23 April 2012, on the application of Echo, the rechtbank van koophandel te Hasselt (Commercial Court, Hasselt, Belgium) initiated judicial restructuring proceedings with a view to a consent procedure under the WCO. That company was granted a stay of proceedings until 23 October 2012 inclusive. The stay of proceedings was subsequently extended up to and including 22 April 2013.

12.

On 19 February 2013, before that period had expired, the rechtbank van koophandel te Hasselt (Commercial Court, Hasselt) granted Echo’s application to change the transfer by consent to a transfer under judicial supervision.

13.

On 22 April 2013, the rechtbank van koophandel te Hasselt (Commercial Court, Hasselt) authorised judicial officers to proceed with the transfer of movable and immovable property to Prefaco, one of the two companies bidding to take over Echo. In its bid, Prefaco had offered to keep on 164 employees, that is to say, around two thirds of Echo’s total staff. The transfer agreement was signed on 22 April 2013. A list of the employees to be taken over was appended as Annex 9 to that agreement. Ms Plessers’ name was not on that list.

14.

That agreement also provided that the transfer date would be ‘two working days after the date of the authorisation decision’ by the rechtbank van koophandel te Hasselt (Commercial Court, Hasselt).

15.

On 23 April 2013, Prefaco contacted the employees covered by the transfer by telephone, asking them to attend the following day to perform their duties. Prefaco confirmed that transfer in writing on 24 April 2013. Similarly, the employees who were not taken over were contacted by telephone and informed by the court officers, by letter of 24 April 2013, that they had not been taken over by Prefaco. That letter read as follows:

‘This letter serves as official notification under Article 64(2) of the WCO. Echo’s activities ceased from 22 April 2013. Since you have not been taken over by the transferees referred to above, you must regard this letter as a termination of contract by your employer, [Echo]. As a potential creditor [of Echo], you are advised to file a claim with the undersigned court officers …’.

16.

The court officers also issued Ms Plessers with a form, indicating 23 April 2013 as the date of termination of her contract.

17.

Ms Plessers claimed that Prefaco had begun exploiting the business at Houthalen-Helchteren from 22 April 2013, the date on which the rechtbank van koophandel te Hasselt (Commercial Court, Hasselt) issued its judgment, a claim that Prefaco has disputed.

18.

In a letter of 7 May 2013, Ms Plessers put Prefaco on formal notice that it had to employ her.

19.

Prefaco responded by a letter of 16 May 2013, referring to application of Article 61(4) of the WCO, which entitles the transferee to choose which employees it wishes to keep on and which employees it does not, provided, first, that such a choice is determined by technical, economic or organisational reasons and, secondly, that there is no prohibited differentiation. Prefaco also referred, inter alia, to the fact that it had no obligation to re-employ Ms Plessers after her employment contract with Echo was terminated.

20.

No agreement having been reached, by application of 11 April 2014 Ms Plessers instituted proceedings before the arbeidsrechtbank te Antwerpen (Labour Court, Antwerp, Belgium).

21.

Furthermore, on 24 July 2015, Ms Plessers applied for the Belgian State to be joined as a third party.

22.

By a judgment of 23 May 2016, the arbeidsrechtbank te Antwerpen (Labour Court, Antwerp) declared all Ms Plessers’ claims to be unfounded and ordered her to pay the costs in full. Ms Plessers appealed against that judgment to the arbeidshof te Antwerpen, afdeling Hasselt (Labour Court, Antwerp, Hasselt Division, Belgium).

23.

In those circumstances, by a decision of 14 August 2017, received by the Registry of the Court of Justice on 21 August 2017, the arbeidshof te Antwerpen, afdeling Hasselt (Labour Court, Antwerp, Hasselt Division) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is the right of option for the transferee under Article 61(4) of the [WCO], in so far as that “judicial reorganisation by transfer under judicial supervision” is applied with a view to maintaining all or part of the transferor or its activities, consistent with Council Directive [2001/23], in particular with Articles 3 and 5 of that directive?’

24.

The parties to the main proceedings, the Belgian Government and the European Commission submitted written observations. At the hearing, on 3 October 2018, all the parties, with the exception of Prefaco, presented oral argument.

25.

Prefaco submits in its written observations that Ms Plessers cannot rely on Directive 2001/23 in order to disapply a clear provision of national law and that, therefore, the question referred is irrelevant for the purposes of determining the dispute in the main proceedings.

26.

According to settled case-law, whilst it is true that, in relation to disputes between individuals, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual, the fact nonetheless remains that the Court has also consistently held that the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts. It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive. ( 4 )

27.

It is therefore my view that, in the light of that obligation on the national courts, the referring court’s question is relevant for the purposes of determining the dispute in the main proceedings.

28.

By its question, the referring court is asking the Court of Justice, essentially, whether Article 61(4) of the WCO is consistent with Articles 3 and 5 of Directive 2001/23. By that question, as it is worded, the referring court invites the Court of Justice to rule on whether a provision of national law is compatible with EU law. ( 5 )

29.

According to settled case-law, the system of cooperation established by Article 267 TFEU is based on a clear division of responsibilities between the national courts and the Court of Justice. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter not for the Court of Justice but for the courts of the Member States, and the Court of Justice has no jurisdiction to rule on the compatibility of rules of national law with EU law. However, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to determine whether those national rules are compatible with EU law. Although it is true that, as I have just stated, on a literal reading of the referring court’s question, the Court of Justice is being asked to rule on the compatibility of a provision of national law with EU law, there is nothing to prevent the Court of Justice from giving an answer that will be of use to the referring court, by providing the latter with guidance as to the interpretation of EU law that will enable that court to rule itself on the compatibility of the national rules with EU law.

30.

I also note that, in the context of that cooperation between national courts and the Court of Justice, the Court has a duty to interpret all provisions of EU law that national courts need in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts. ( 6 )

31.

Consequently, even if, formally, the referring court has limited its question to the interpretation of Articles 3 and 5 of Directive 2001/23 alone, that does not prevent the Court of Justice from providing the referring court with all the elements relating to the interpretation of EU law that may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its question. ( 7 )

32.

In the light of that case-law and having regard to the factors referred to in the order for reference, I believe that the Court of Justice should reformulate the question put to it. I therefore propose that the referring court’s question should be understood as enquiring, essentially, whether Directive 2001/23, and in particular Articles 3 and 4 of that directive, should be interpreted as meaning that it precludes national legislation, such as that at issue in the main proceedings, that, where there is a transfer of an undertaking in the context of judicial restructuring proceedings by transfer under judicial supervision applied with a view to maintaining all or part of the transferor or its activities, establishes that the transferee is entitled to choose which employees it wishes to keep on.

33.

In order to answer that question, it appears essential to examine, at the outset, whether Article 5(1) of Directive 2001/23 applies to transfers of undertakings taking place in the context of judicial restructuring proceedings by a transfer under judicial supervision and whether, accordingly, the exception in that article applies in the present case. Only if that procedure does not satisfy the requirements laid down in that article must the safeguarding of employee rights established, in particular, in Articles 3 and 4 of that directive be complied with as part of the transfer of the undertaking.

34.

The parties that submitted observations to the Court represent opposing positions on how the question referred should be answered.

35.

Ms Plessers and the Commission argue, essentially, that the transfer at issue in the main proceedings does not satisfy the requirements of Article 5(1) of Directive 2001/23. They contend that it is apparent from the case-law of the Court of Justice, in particular from Federatie Nederlandse Vakvereniging and Others, ( 8 ) that the judicial restructuring procedure at issue in the main proceedings was initiated not with a view to compensating creditors by liquidating assets but to the undertaking concerned continuing to trade. They accordingly believe that Article 5(1) of Directive 2001/23 does not apply to that procedure.

36.

The Belgian Government and Prefaco submit, in contrast, that the judicial reorganisation by transfer under judicial supervision procedure must be regarded as winding up proceedings and, therefore, that the transfer at issue in the main proceedings does satisfy the requirements in Article 5(1) of Directive 2001/23.

37.

That being so, it is in my view necessary, first of all, to make a number of general points relating to the development of undertaking restructuring processes in the European Union. Those points seem relevant not only in order to define the regulatory context of Directive 2001/23 but also in order to understand the context of the procedure in question. On the basis of those considerations, I will then address whether or not Article 5(1) of Directive 2001/23 applies and the reasons justifying a derogation from the exception under that article. Lastly, I will examine the scope that Articles 3 and 4 of that directive give to the scheme for the protection of employee rights.

38.

In 1974, against a background of economic crisis, the Council of the European Union adopted a resolution establishing a series of measures that the Commission undertook to submit to the Council in the course of that year. ( 9 ) Those measures included two proposals for directives seeking to approximate the laws of the Member States relating, in the case of the first proposal, to collective redundancies ( 10 ) and, in the case of the second, to safeguarding rights and advantages on a change in the ownership of an undertaking, particular in the event of merger. ( 11 ) Those directives were brought in during the 1970s with the aim of protecting workers’ rights in response to the restructurings that occurred after the economic crisis of the early 1970s. ( 12 ) In the 1980s, a third directive was adopted, Directive 80/987/EEC, ( 13 ) on employer insolvency, thereby completing the ‘restructuring directives’. It was apparent from the recitals of each of those directives that the differences still existing in the Member States in terms of the types and procedures for collective redundancy and the scope of worker protection in the areas of the restructuring and the insolvency of their employers, could have a direct impact on the functioning of the common market.

39.

Those directives were revised during the 1990s and early 2000s. ( 14 ) The amendments made to them addressed the transnational dimension of restructurings by enhancing their mechanisms for anticipating restructuring. ( 15 ) In particular, Directive 77/187 was first amended by Directive 98/50/EC ( 16 ) and then codified by Directive 2001/23. ( 17 )

40.

Those three directives sought, first, to facilitate the restructuring of undertakings in order to make them more competitive and efficient and, secondly, to address the adverse consequences of restructuring decisions and to mitigate their effects. ( 18 ) Those directives thereby contributed to absorbing the shock of the recession and to mitigating the adverse social consequences of the restructuring operations carried out during the crisis. ( 19 ) It is worth noting that the Commission recently presented, following on from those directives, ( 20 ) a proposal for a directive on preventive restructuring frameworks aimed at strengthening undertakings’ safeguarding culture. ( 21 )

41.

Those references to changes in the undertaking restructuring process both nationally and at EU level will make it possible fully to understand the context in which Directive 2001/23 operates for the purposes of analysing the referring court’s question.

42.

Directive 77/187 did not originally provide for an exception from its application for transfers of undertakings in the context of insolvency or analogous proceedings. That exception was only inserted in the text of Directive 77/187 by Directive 98/50, by its Article 4a, which is now contained in Article 5(1) of Directive 2001/23. The third recital of Directive 98/50 stated that the objective of that exception was to amend Directive 77/187, in particular ‘in the light of the case-law of the Court of Justice’, which I shall therefore summarise briefly. ( 22 )

43.

It was in the Abels ( 23 ), d’Urso and Others ( 24 ), Spano and Others ( 25 ) and Dethier Équipement ( 26 ) judgments that the Court of Justice established that exception from the safeguards laid down by Directive 77/187. Initially, having pointed out that the purpose of that directive was to ensure that the restructuring of undertakings within the single market did not adversely affect workers, ( 27 ) and justifying that exception on the grounds of the specific nature of insolvency law, the Court held that Directive 77/187 did not apply ‘to transfers [of undertakings] effected in bankruptcy proceedings designed to liquidate the transferor’s assets under the supervision of the competent judicial authority’, ( 28 ) although without prejudice to the Member States’ freedom to apply the principles of that directive autonomously to such a transfer. ( 29 ) The Court stated that Directive 77/187 did nevertheless apply to the transfer of an undertaking in the context of suspension of payments proceedings taking place ‘before the declaration of insolvency, involving more limited supervision by the court, and which was intended primarily to preserve the assets of the undertaking and, if possible, to keep the undertaking in business in the future’. ( 30 )

44.

The Court then specified that, in view of the national differences between the legal systems of the Member States, the criterion based on the extent of court supervision of the procedure did not, of itself alone, enable the scope of Directive 77/187 to be ascertained. ( 31 ) It therefore held that the determining factor to be taken into consideration in order to establish whether Directive 77/187 applied to a transfer of an undertaking taking place as part of an administrative or judicial procedure was therefore that of the objective pursued by the procedure in question. ( 32 ) On that basis, it found that a transfer taking place in the context of a procedure designed to liquidate the debtor’s assets in order to satisfy the body of creditors, was excluded from the scope of Directive 77/187 and that, in contrast, a transfer taking place in the case of a procedure where ‘the primary purpose of that procedure’ was to ensure that the undertaking could continue trading, did fall within the scope of application of that directive. ( 33 )

45.

The Court subsequently confirmed that criterion and clarified that, given that the procedure at issue was designed to promote the continuation of the undertaking’s business with a view to its subsequent recovery and, unlike insolvency proceedings, did not involve any judicial supervision, or any measure whereby the assets of the undertaking were put under administration, or any suspension of payments, the social and economic objectives pursued could neither explain or justify the circumstance that, where there was a transfer of all or part of the undertaking, ‘its employees lose the rights which [Directive 77/187] confers on them’. ( 34 )

46.

Lastly, to the criterion consisting of the objective pursued by the procedure in question, the Court added a subsidiary criterion in which ‘the form of the procedure’ is taken into account. It accordingly held that ‘account should also be taken of the form of the procedure in question, in particular in so far as it means that the undertaking continues or ceases trading, and also of [Directive 77/187’s] objectives. ( 35 )

47.

The exception contained in Article 5(1) of Directive 2001/23 must be interpreted in the light of those case-law principles, developed by the Court of Justice and codified in that article.

48.

After the case-law principles described in the preceding points had been codified, in Article 5(1) of Directive 2001/23, the Court of Justice interpreted that article for the first time in its judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others. ( 36 ) In that judgment, the Court ruled on whether Directive 2001/23 was applicable to the transfer of an undertaking that took place following a declaration of insolvency in the context of a ‘pre-pack’ under Netherlands law, prepared before that declaration. ( 37 )

49.

In that context, the Court noted, first, that it is clear from recital 3 of Directive 2001/23 that the objective of that directive is to protect employees, and in particular to ensure that their rights are safeguarded in the event of a change of employer. To that end, first of all, the first subparagraph of Article 3(1) of the directive provides that the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of the transfer are, by reason of that transfer, transferred to the transferee. Secondly, Article 4(1) of Directive 2001/23 protects employees from any dismissal solely on the basis of the transfer by either the transferor or the transferee. The Court also noted that, by way of derogation, Article 5(1) of Directive 2001/23 states that the protection scheme referred to in Articles 3 and 4 of the directive does not apply to transfers of undertakings carried out in the circumstances specified within that provision, unless Member States provide otherwise. ( 38 )

50.

The Court examined, secondly, whether the procedure at issue in that case satisfied the conditions laid down in Article 5(1) of Directive 2001/23. After finding that, according to the national rules, the ‘pre-pack’ operation was prepared before the declaration of insolvency but was put into effect after it and that, therefore, that operation could be covered by the concept of ‘bankruptcy proceedings’ within the meaning of Article 5(1) of Directive 2001/23, the Court nevertheless found that, in so far as the primary objective of that operation was to safeguard the insolvent undertaking, it did not satisfy the requirement that the procedure in question must have been instituted with a view to the liquidation of the assets of the transferor. In the light of the foregoing, the Court stated that the mere fact that the ‘pre-pack’ procedure may also be aimed at maximising satisfaction of creditors’ collective claims did not make it a procedure instituted with a view to the liquidation of the assets of the transferor within the meaning of Article 5(1) of Directive 2001/23. The Court also found that, in the context of that operation, because no public authority supervised the prospective insolvency administrator and the prospective supervisory judge, the requirement for supervision by a public authority laid down in Article 5(1) of Directive 2001/23 was not satisfied. ( 39 )

51.

In the light of the foregoing, the Court held that a ‘pre-pack’ procedure of that kind does not satisfy all the conditions laid down in Article 5(1) and that, accordingly, there can be no derogation from the scheme of protection laid down in Articles 3 and 4 of Directive 2001/23. ( 40 )

52.

In so doing, the Court of Justice confirmed the interpretative criteria that emerged from its earlier case-law, ( 41 ) adapting them to the specific features of the ‘pre-pack’ operation under Netherlands law at issue, in particular in relation to the degree of public supervision ( 42 ) and the purpose of the procedure, which, in the case of the latter the Court found to be the principal criterion, whilst it did not take into account, in the context of that procedure, the subsidiary criterion relating to the specific arrangements of that operation. ( 43 )

53.

In the light of the foregoing, I will now examine whether or not a transfer of undertaking that takes place in the context of a judicial reorganisation by transfer under judicial supervision procedure, such as that at issue in the main proceedings, falls within the exception in Article 5(1) of Directive 2001/23 and, accordingly, whether or not the worker protection scheme laid down in Articles 3 and 4 of that directive applies to such a situation. It is therefore necessary to determine whether the procedure at issue in the main proceedings satisfies all the requirements laid down in Article 5(1) of Directive 2001/23. ( 44 )

54.

It should be noted in that respect that Article 5(1), in so far as, in principle, it renders inapplicable the scheme for the protection of employees in relation to certain transfers of undertakings and thus negates the main objective underlying Directive 2001/23, must necessarily be interpreted strictly. ( 45 )

55.

None of the parties in the main proceedings has argued that judicial restructuring proceedings by transfer under judicial supervision may be regarded as insolvency proceedings. ( 46 ) Nevertheless, Prefaco contends that the procedure laid down by the WCO is ‘a provisional bulwark against insolvency’ and that insolvency is very similar to the proceedings at issue in the main proceedings.

56.

The Belgian government submits that the procedure for judicial reorganisation by transfer under judicial supervision is explicitly listed among the winding-up proceedings mentioned for Belgium in Annex B to Regulation (EC) No 1346/2000 ( 47 ) and that, consequently, since the nature of that procedure has been established in that annex, the procedure falls within Article 5(1) of Directive 2001/23.

57.

I do not share that view. To my mind the fact that Annex B to Regulation No 1346/2000 mentions the procedure at issue in the main proceedings is not decisive as regards possibly classifying the procedure at issue in the main proceedings as winding up proceedings.

58.

It should be noted here, first of all, that the rules on jurisdiction and applicable law laid down by the provisions of EU private international law are completely without prejudice to the provisions of national substantive law. Regulation No 1346/2000 forms part of the legal framework which the European Union constructed in order to develop judicial cooperation in civil and commercial matters having cross-border implications, whereas Directive 2001/23 harmonises provisions of substantive law and applies, in principle, to all transfers of undertakings. Directive 2001/23 therefore establishes a ‘universal standard’ of worker protection in the context of a transfer of undertaking within the European Union. ( 48 ) Secondly, if insolvency or winding up proceedings are listed in Annex A or B to Regulation No 1346/2000, that procedure must be regarded as falling within the scope of application of that regulation and, therefore, as a situation of insolvency or winding up solely ‘for the purposes of application of that regulation’. ( 49 )

59.

In the present case, as can be seen from point 7 of this Opinion, until such time as the court has ruled on the application for judicial reorganisation, the debtor cannot be declared insolvent and, in the case of a company, nor can that company be wound up by the court. Accordingly, in the light of the case-law examined in points 42 to 51 of this Opinion, such a procedure, which may, but does not systematically, give rise to insolvency, does not satisfy the requirement that the transferor must be the subject of bankruptcy proceedings or analogous insolvency proceedings ( 50 ) and, therefore, cannot fall within the concept of ‘bankruptcy proceedings’ within the meaning of Article 5(1) of Directive 2001/23. ( 51 )

60.

I shall now examine whether the procedure at issue in the main proceedings satisfies the requirement under Article 5(1) of Directive 2001/23.

61.

Article 5(1) of Directive 2001/23 requires that the transferor be the subject of bankruptcy proceedings or analogous insolvency proceedings instituted with a view to liquidation of its assets. In that regard, as is clear from the Court’s case‑law, a procedure aimed at ensuring the continuation of the undertaking in question does not satisfy that requirement. ( 52 )

62.

In relation to the differences between those two types of proceedings, the Court of Justice has held that a procedure is aimed at ensuring the continuation of the undertaking where that procedure is designed to preserve the operational character of the undertaking or of its viable units. By contrast, a procedure focusing on the liquidation of assets is aimed at maximising satisfaction of creditors’ collective claims. Although there may be some overlap between those two objectives within the aims of any given procedure, the primary objective of a procedure aimed at ensuring the continuation of the undertaking is, in any event, the safeguarding of the undertaking concerned. ( 53 )

63.

In order to determine whether, in the present case, the transferor was the subject of insolvency or analogous proceedings with a view to liquidation of the transferor’s assets, the following factors should be taken into account.

64.

First, it emerges from the written observations of the Belgian Government that, according to Article 23 of the WCO, the judicial reorganisation procedure is instituted as soon as the undertaking’s continued existence is threatened. According to that article, an undertaking’s existence is in any event presumed to be threatened if losses have reduced its net assets to less than half the share capital. Under Article 16 of the WCO, the purpose of the procedure is to preserve, under supervision by the court, ‘continuity of all or part of the undertaking in difficulties or its business’. It allows an employer whose undertaking is acknowledged to be ‘in difficulties’ within the meaning of that legislation to be given a stay of several months in order to enable an amicable agreement to be concluded, to obtain creditors’ agreement to a reorganisation plan, or to facilitate a transfer under judicial supervision, such as that at issue in the main proceedings. Furthermore, as emerges from Article 22 of the WCO, that stay means that the employer is protected from enforcement measures taken by its creditors, in particular from its company being declared insolvent, whilst it reorganises its business. ( 54 )

65.

Secondly, the referring court states that, under the first subparagraph of Article 59(1) of the WCO, the procedure for judicial reorganisation by transfer under judicial supervision concerns the transfer of ‘all or part of the undertaking or its activities’ and that a court can order that transfer ‘with a view to continuing [those activities], where the debtor consents in its application for judicial reorganisation or subsequently during the procedure. ( 55 )

66.

Thirdly and lastly, as the referring court observes, in the present case the rechtbank van koophandel te Hasselt (Commercial Court, Hasselt) quite clearly ordered the transfer under judicial supervision with a view to continuing all or part of Echo or its activity, in accordance with the wording of the first subparagraph of Article 59(1) of the WCO.

67.

I conclude on that basis that the primary objective of such a procedure must be held to be the safeguarding of all or part of the undertaking in difficulty and, accordingly, such a procedure cannot come within the scope of Article 5(1) of Directive 2001/23, in accordance with the case-law cited in points 44 and 50 of this Opinion.

68.

In relation to the third requirement laid down in Article 5(1) of Directive 2001/23, I would emphasise that it is apparent from the file submitted to the Court of Justice that, in accordance with Article 60 of the WCO, the judgment ordering the transfer appoints a court officer responsible for organising and performing the transfer ‘for and on behalf of the debtor’. ( 56 ) Under those circumstances, I believe that more limited supervision of that nature cannot satisfy the requirement, set out in Article 5(1) of Directive 2001/23, that the transfer must be supervised by a public authority. ( 57 )

69.

It follows from the foregoing that judicial restructuring proceedings by transfer under judicial supervision such as that at issue in the main proceedings does not satisfy all the requirements laid down in Article 5(1) of Directive 2001/23 and, accordingly, there can be no derogation from the protection scheme laid down in Articles 3 and 4 of that directive.

70.

It is apparent from the order for reference that, under Article 61(4) of the WCO, the transferee can choose which employees it wishes to keep on, provided, first, that such a choice is determined by technical, economic or organisational reasons and that, secondly, it is made without any prohibited differentiation. Having regard to that article, the question arises whether Articles 3 and 4 of Directive 2001/23 allow the transferee to choose the workers it wishes to keep on, as follows from Article 61(4) of the WCO.

71.

In order to answer that question, it is necessary, first, to bear in mind that, as the Court of Justice has repeatedly held, Directive 2001/23 is intended to safeguard the rights of employees in the event of a change of employer by enabling them to continue to work for the new employer on the same terms and conditions as those agreed with the transferor. ( 58 ) The purpose of the directive is to ensure, as far as possible, that the contract of employment continues unchanged with the transferee, in order to prevent the workers concerned from being placed in a less favourable position solely as a result of the transfer. ( 59 ) Furthermore, as the Court has already held, since that protection is a matter of public policy and, therefore, independent of the will of the parties to the contract of employment, the rules of the directive, in particular those concerning the protection of workers against dismissal by reason of the transfer, must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees. ( 60 )

72.

That being so, it should also be noted that, as is clear from the very wording of the first subparagraph of Article 3(1) of Directive 2001/23, the protection that the directive is intended to provide only concerns workers who have an employment contract or employment relationship existing at the date of the transfer. ( 61 ) Accordingly, unless otherwise expressly provided, ‘Directive 2001/23 may be relied on solely by workers whose contract of employment or employment relationship is in existence at the time of the transfer. Whether such a contract or relationship existed at that time must be assessed on the basis of national law, subject, however, to compliance with the mandatory provisions of the directive concerning protection of employees from dismissal as a result of the transfer’. ( 62 )

73.

In the present case the referring court notes, first, that the date of the transfer was determined as 22 April 2013 ( 63 ) and, secondly, that Ms Plessers’ employment contract terminated on 24 April 2013. That court states that ‘there can be no doubt that Ms Plessers, at the date of the transfer [22 April 2013], was bound to [the transferor] Echo by an employment contract’. It also indicates that the court officers terminated the employment contract with Ms Plessers on 24 April 2013. Consequently, Ms Plessers must be found to have been an employee of the transferor on the date of the transfer with the result, in particular, that the obligations towards her of the transferor employer (Echo) under Article 3 of Directive 2001/23 were automatically transferred to the transferee (Prefaco). ( 64 )

74.

As regards the protection established in Article 4(1) of Directive 2001/23, it is evident from that article that, first, the transfer of an undertaking does not in itself constitute grounds for dismissal by the transferor or the transferee and, secondly, that it does not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce. ( 65 )

75.

It should be noted in that respect, as the Court of Justice has already held, that in order to determine whether the reason for the dismissal was solely the transfer, contrary to Article 4(1) of Directive 2001/23, it is necessary to take into consideration the objective circumstances in which the dismissal occurred. ( 66 ) Accordingly, in a situation such as that in the present case, it is apparent from points 15 and 73 of this Opinion that the dismissal in question took effect two days after the date of the transfer.

76.

It is also apparent from the Court’s case-law that it is not sufficient to demonstrate that the employment contract was terminated as the result of economic, technical or organisational reasons. It is also necessary to prove that those reasons do not flow directly from the transfer of an undertaking, in breach of Article 4(1) of Directive 2001/23. In other words, it is necessary to prove that the dismissal in question was caused by circumstances additional to that transfer. It is therefore those ‘additional circumstances’ that can be described as ‘economic, technical or organisational reasons’ for the purposes of Article 4(1). ( 67 )

77.

In contrast, according to Article 61(4) of the WCO, it is to my mind the transferee alone that is entitled to choose which employees it wishes to keep on and which employees it does not, even though that choice must be made on the basis of technical, economic or organisational reasons. It does not seem to me that the national legislation imposes any a priori restriction on the extent of that choice. However, as the Commission correctly noted, it is for the national court to ensure that Directive 2001/23 is effective. The national court itself must therefore be in a position to assess whether dismissals are necessary for technical, economic or organisational reasons, which in the present case it does not appear to be. It would only be able to do so if it was informed exhaustively of the grounds for dismissal, by all the parties involved in the transfer of an undertaking. A mere wish to reduce the costs of recovery for an undertaking or to avert or limit financial problems therefore cannot be acceptable as a ground for dismissal. ( 68 ) To allow the transferee to choose the workers it wishes to keep on would negate Articles 3 and 4 of Directive 2001/23. The procedures not covered by the scheme of protection under that directive are bankruptcy or insolvency proceedings with a view to liquidating the assets of the transferor, which, in principle, fall within the scope of Directive 2008/94. Conversely, wherever the objective of the procedure in question is that the undertaking continues trading, that procedure is not covered by the exception in Article 5(1) of Directive 2001/23 and, therefore, the fact that the transferee can choose the workers conflicts with Articles 3 and 4 of that directive and therefore its effectiveness.

78.

My view is therefore that Directive 2001/23, and in particular Articles 3 and 4, should be interpreted as meaning that it precludes national legislation, such as that at issue in the main proceedings, that, where there is a transfer of an undertaking in the context of judicial restructuring proceedings by transfer under judicial supervision applied with a view to maintaining all or part of the transferor or its activities, establishes that the transferee is entitled to choose which employees it wishes to keep on.

79.

In the light of the foregoing, I propose that the Court should answer the arbeidshof te Antwerpen (Higher Labour Court, Antwerp, Belgium) as follows: