26 November 2015 (*1)

In Case C‑509/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (High Court of Justice of the Basque Country, Spain), made by decision of 9 September 2014, received at the Court on 13 November 2014, in the proceedings

Luis Aira Pascual,

Algeposa Terminales Ferroviarios SL,

Fondo de Garantía Salarial,

composed of F. Biltgen (Rapporteur), President of the Tenth Chamber, acting as President of the Sixth Chamber, A. Borg Barthet and S. Rodin, Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

—the Spanish Government, by M.J. García-Valdecasas Dorrego, acting as Agent,

—the European Commission, by J. Rius and M. Kellerbauer, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1This reference for a preliminary ruling concerns the interpretation of Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 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 (OJ 2001 L 82, p. 16).

2The request has been made in proceedings between the Administrador de Infraestructuras Ferroviarias (ADIF), on the one hand, and Mr Aira Pascual, the Fondo de Garantía Salarial (Wages Guarantee Fund) and Algeposa Terminales Ferroviarios SL (‘Algeposa’), concerning the collective dismissal for economic reasons of Mr Aira Pascual.

The legal framework

EU law

Recitals 7 to 9 of Directive 2001/23 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2001/23 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

A description of the aspects of the environment likely to be significantly affected by the project.

A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Spanish law

The rules governing employees’ rights in the event of transfers of undertakings are laid down in Royal Legislative Decree No 1/1995 of 24 March 1995 approving the amended text of the Workers’ Statute (Real Decreto Legislativo 1/1995, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores) (BOE No 75 of 29 March 1995, p. 9654), as amended by Law 12/2001 of 9 July 2001 (BOE No 164, of 10 July 2001, p. 24890), (‘the Workers’ Statute’).

Article 44(1) and (2) of the Workers’ Statute provides:

‘1. The transfer of an undertaking, business or independent production unit of a business shall not in itself terminate the employment relationship; the new employer shall take over the former employer’s rights and obligations with respect to the employment contract and social security, including all commitments in respect of pensions, in the circumstances provided for by the relevant specific legislation and, generally, all obligations in relation to additional social protection which the transferor has undertaken.

The dispute in the main proceedings and the question referred for a preliminary ruling

10ADIF is a public undertaking responsible for the service of handling intermodal transport units at the Bilbao terminal (Spain). That service is provided to Renfe Operadora.

11Pursuant to a public service operating agreement which came into force on 1 March 2008, ADIF outsourced the management of that service to Algeposa. Algeposa provided that service in ADIF’s facilities, using cranes belonging to the latter.

12The agreement was concluded for a period of 48 months. Upon the expiry of that period, the agreement was extended until 30 June 2013.

13In May 2013, ADIF seconded some of its employees to Algeposa in order for them to complete an immersion training programme among the staff of that company.

14In June 2013, ADIF informed Algeposa that it did not wish to extend the agreement beyond 30 June 2013 on the ground that, as from that date, it would itself provide the service at issue in the main proceedings with its own staff. ADIF also indicated to Algeposa that it refused to take over the latter’s rights and obligations as regards its employees.

15Consequently, Algeposa carried out a collective dismissal for economic reasons of several workers, including Mr Aira Pascual, who had hitherto been assigned to the performance of the public service operating agreement concluded with ADIF.

16On 30 July 2013, Mr Aira Pascual brought proceedings before the Juzgado de lo Social No 10 de Bilbao (Labour Tribunal No 10, Bilbao) against ADIF, the Wages Guarantee Fund and Algeposa, alleging that, upon the expiry of the agreement concluded with Algeposa, ADIF was required to take over Algeposa’s rights and obligations relating to its employment relationships with its employees. According to Mr Aira Pascual, the resumption of ADIF’s direct management of the provision of the service at issue in the main proceedings constituted a transfer of undertaking for the purposes of Article 44 of the Workers’ Statute. Accordingly, Mr Aira Pascual claimed that his dismissal should be annulled or, in the alternative, declared unlawful, and that ADIF should be ordered to reinstate him within its staff.

17The court granted Mr Aira Pascual’s action, declaring his dismissal unlawful and ordering ADIF to pay him compensation amounting to EUR 28793.29. Mr Aira Pascual was ordered to reimburse to Algeposa the sum of EUR 9557.87 paid to him by way of compensation for the termination of his contract of employment.

18The court held that, by refusing to take over Algeposa’s rights and obligations relating to its employment relationship with Mr Aira Pascual, ADIF had failed to fulfil its obligation under Article 44 of the Workers’ Statute, as interpreted in conformity with Directive 2001/23. According to the court, a transfer of undertaking had taken place, since the service at issue in the main proceedings had continued to be provided, using the same material resources essential to its provision, for the same customer and in the same facilities.

19ADIF lodged an appeal against that judgment before the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (High Court of Justice of the Basque Country).

20That court considers that the Court of Justice has not yet ruled on whether the concept of a transfer of undertaking within the meaning of Directive 2001/23 encompasses cases in which an undertaking responsible for providing a public service resumes the direct management of that service, where (i) that undertaking decides to perform that service using its own staff, without taking on the staff employed by the subcontractor to which it had previously entrusted the management of that service and (ii) the material resources used, essential to the provision of that service, belonged at all times to that undertaking, which stipulated their use by the subcontractor.

21In those circumstances, the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (High Court of Justice of the Basque Country) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

The question referred

22It should be observed as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. In that light, the Court may have to reformulate the questions referred to it (judgments in Krüger, C‑334/95, paragraphs 22 and 23, and Byankov, C‑249/11, paragraph 57).

23In the present case, by its question, the referring court asks, in essence, whether Article 1(1) of Directive 2001/23 must be interpreted as meaning that the scope of that directive covers a situation in which a public undertaking, responsible for the economic activity of handling intermodal transport units, entrusts, by a public service operating agreement, the performance of that activity to another undertaking, providing to the latter undertaking the necessary facilities and equipment, which it owns, and subsequently decides to terminate that agreement without taking over the employees of the latter undertaking, on the ground that it will henceforth perform that activity itself with its own staff.

24In order to answer the question thus reformulated, it must be noted in the first place that, pursuant to Article 1(1)(c) of Directive 2001/23, that directive applies to public undertakings engaged in economic activities whether or not they are operating for gain.

25The Court has therefore held that the mere fact that the transferee is a public-law body cannot be a ground for excluding the existence of a transfer within the scope of Directive 2001/23 (see, to that effect, judgment in CLECE, C‑463/09

27Accordingly, the fact that the legal person at issue in the main proceedings is a public undertaking responsible for a public service does not exclude it from the scope of Directive 2001/23.

28In the second place, it must be pointed out that, pursuant to Article 1(1)(a) of Directive 2001/23, that directive applies to any transfer of an undertaking, business or part of an undertaking or business to another employer as a result of a legal transfer or merger.

29In that respect, it is settled case-law of the Court that Directive 2001/23 is applicable wherever, in the context of contractual relations, there is a change in the legal or natural person who is responsible for carrying on the undertaking and who by virtue of that fact incurs the obligations of an employer vis-à-vis the employees of the undertaking, regardless of whether or not ownership of the tangible assets is transferred (see judgments in Abler and Others, C‑340/01, EU:C:2003:629, paragraph 41, and CLECE, C‑463/09, EU:C:2011:24, paragraph 30).

30Thus the Court has held that Directive 2001/23 is capable of applying to a situation in which an undertaking, which entrusted to another undertaking the effective performance of work, decides to terminate its contract with that other undertaking and to carry out that work itself (see, to that effect, judgment in CLECE, C‑463/09, EU:C:2011:24, paragraph 31).

31It is therefore possible that Directive 2001/23 may be applicable to a situation in which a public undertaking, responsible for the economic activity of handling intermodal transport units, entrusts, by a public service operating agreement, the performance of that activity to another undertaking, and subsequently decides to terminate that agreement and to perform that activity itself with its own staff.

32In the third place, it must be noted that, in accordance with Article 1(1)(b) of Directive 2001/23, in order for that directive to be applicable, the transfer must concern an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether that activity is central or ancillary.

33In order to determine whether that condition is met, it is necessary to consider all the facts characterising the transaction in question, including in particular the type of undertaking or business, whether or not its tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended. However, all those circumstances are merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see judgments in Abler and Others, C‑340/01, EU:C:2003:629, paragraphs 33 and 34 and the case-law cited).

34In particular, the Court has held that a national court, in assessing the facts characterising the transaction in question, must take into account among other things the type of undertaking or business concerned.

35It follows that the degree of importance to be attached to each criterion for determining whether or not there has been a transfer within the meaning of Directive 2001/23 will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business (see, to that effect, judgment in Abler and Others, C‑340/01, EU:C:2003:629, paragraph 35 and the case-law cited).

36It is true that the Court has held in that respect that, in a sector where the activity is based essentially on manpower, the identity of an economic entity cannot be retained if the majority of its employees are not taken on by the alleged transferee (see, to that effect, judgment in CLECE, C‑463/09, EU:C:2011:24, point 41).