delivered on 23 January 2019 (1)

Case C‑509/17

Christa Plessers

PREFACO NV,

Belgische Staat (Belgian State)

(Request for a preliminary ruling from the arbeidshof te Antwerpen (Higher Labour Court, Antwerp, Belgium))

(Reference for a preliminary ruling — Directive 2001/23/EC — Articles 3 to 5 — Transfers of undertakings — Safeguarding of employees’ rights — Exceptions — Insolvency proceedings — Procedure for judicial reorganisation by transfer under judicial supervision — Full or partial safeguarding of the undertaking — National legislation authorising the transferee to keep on the employees of its choice, after the transfer)

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.

II. Legal context

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).’

B. Belgian law

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:

–the debtor cannot be declared insolvent and, in the case of a company, nor can that company be wound up by the court;

–none of the debtor’s movable or immovable property may be realised pursuant to commencement of an enforcement procedure.’

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.’

III. Factual background, the question referred and the proceedings before the Court of Justice

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?’

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.