Keywords
Summary

Keywords

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1. Preliminary rulings ° Jurisdiction of the Court ° Limits ° Manifestly irrelevant question

(EEC Treaty, Art. 177)

2. Preliminary rulings ° Reference to the Court ° Question whether the referring decision accords with rules of national law governing the organization and procedure of the courts ° Not a matter for the Court to determine

(EEC Treaty, Art. 177)

3. Acts of the institutions ° Directives ° Implementation by Member States ° Need to ensure the effective application of directives ° Obligations of the national courts

(EEC Treaty, Art. 189, third para.)

4. Social policy ° Approximation of laws ° Transfers of undertakings ° Safeguarding of workers' rights ° Directive 77/187 ° Scope ° Transfer of an undertaking declared to be in critical difficulties ° Included

(Council Directive 77/187, Art. 1(1))

5. Social policy ° Approximation of laws ° Transfers of undertakings ° Safeguarding of workers' rights ° Directive 77/187 ° Power of Member States to apply provisions which are more favourable to workers ° More favourable provision ° Definition

(Council Directive 77/187, Art. 7)

Summary

1. Under the procedure provided for in Article 177 of the Treaty, it is solely for the national courts before which actions are brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular facts of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court. A request from a national court for a preliminary ruling may be rejected only if it is plain that the interpretation of Community law or the examination of the validity of a Community rule requested by that court has no bearing on the actual facts or subject-matter of the case before the national court.

2. In view of the distribution of functions between itself and the national courts, it is not for the Court to determine, in the procedure provided for in Article 177 of the Treaty, whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organization and procedure of the courts.

3. When applying national law, whether enacted before or after a directive, the national court called upon to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty.

Where a question is referred for a preliminary ruling in order to assess the compatibility with a directive of the national law transposing it, the fact that the parties to the main proceedings are individuals cannot render that question inadmissible on the ground that the directive cannot of itself impose obligations on an individual and cannot be relied upon as such against an individual.

4. Directive 77/187, 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 businesses, is applicable to the transfer of an undertaking which, under the procedure provided for by Italian Law No 675 of 12 August 1977 laying down measures for the coordination of industrial policy, restructuring, conversion and development in the relevant sector, has been declared to be in critical difficulties. That procedure for declaring undertakings to be in critical difficulties, far from being aimed at the liquidation of the undertaking, is on the contrary designed to promote the continuation of its business, and above all to preserve jobs, with a view to its subsequent recovery, and such a declaration is thus conditional on the submission of a recovery plan, which must include measures to resolve the employment problems.

5. A provision such as Article 47(5) of Italian Law No 428 of 29 December 1990, which provides that employment relationships are not to continue to exist with the new owner on the same terms where the undertaking transferred has been declared to be in critical difficulties and the mandatory consultation of the workforce has resulted in an agreement providing for the continued employment of personnel, even in part, cannot be regarded as a "provision which is more favourable to employees" within the meaning of Article 7 of Directive 77/187 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 businesses.