Keywords
Summary

Keywords

Social policy - Approximation of laws - Transfers of undertakings - Safeguarding of employees' rights - Directive 77/187 - Scope - Termination by an employer of a cleaning contract with an independent contractor in order to conclude a contract with another - No transfer of significant assets or taking over by the new employer of a major part of the workforce - Excluded

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

Summary

Article 1(1) 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 is to be interpreted as meaning that the directive does not apply to a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with the latter and, for the performance of similar work, enters into a new contract with a second undertaking, if there is no concomitant transfer from one undertaking to the other of significant tangible or intangible assets or taking over by the new employer of a major part of the workforce, in terms of their numbers and skills, assigned by his predecessor to the performance of the contract.

The concept of transfer within the meaning of the directive relates to cases in which an economic entity - that is to say an organized grouping of persons and assets facilitating the exercise of an economic activity which pursues an objective specific to it - retains its identity following the transaction in question. In those circumstances, the mere loss of a service contract to a competitor cannot by itself indicate the existence of such a transfer. Furthermore, whilst it is conceivable that, in certain sectors in which the business is based essentially on the workforce, an economic entity is able to function without any significant tangible or intangible assets and may be constituted by a group of workers engaged in a joint activity on a permanent basis, it is necessary in addition, for there to be a transfer within the meaning of the directive, for that group to continue to exist after the taking over of an essential part of the workforce by the new awardee of the contract.