Opinion of the Advocate-General

I – Law

A – Community law

‘Council Directive 77/187/EEC of 14 February 1977 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 (3) has been substantially amended. In the interests of clarity and rationality, it should therefore be codified.

Economic trends are bringing in their wake, at both national and Community level, changes in the structure of undertakings, through transfers of undertakings, businesses or parts of undertakings or businesses to other employers as a result of legal transfers or mergers.

It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded’.

‘(a) This Directive shall apply 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.

(b) Subject to [point] (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary’.

5. Under Article 3(1) of that directive:

‘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’.

B – National law

‘In the event of a transfer of a business or part of a business to another employer as a result of a legal transaction, the latter shall assume the rights and obligations arising under employment contracts existing at the time of the transfer’.

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

9. On 22 November 2005, ET entered into an ‘asset and business sale and purchase agreement’ with Ferrotron and with Ferrotron’s US-based parent company, concerning the following products developed by ET: ET-DecNT (digital electrode controller for electric arc furnaces), FT7000, ET-TempNet and ET-OxyNet (metallurgical measuring systems). All the products in question were the work of the F+E/ET Systeme team. Under that agreement, Ferrotron’s parent company acquired all rights over the software, patents, patent applications and inventions, as well as over the product names and the technical know-how relating to those products. Ferrotron acquired the development hardware, an inventory of product materials, a list of suppliers and a list of customers. Additionally, some of ET’s employees were transferred to Ferrotron: Mr Neumann, deputy head of F+E/ET-Systeme/Netzwerk/IBS unit, and three engineers from the F+E/ET-Systeme team, namely Mr Heck, Dr Thiessen and Mr Pavlina.

10. The products covered by the agreement were incorporated into the range offered by Ferrotron, and the former ET employees were integrated into Ferrotron’s existing organisational structure. They also perform tasks in relation to products that were not acquired from ET.

11. On 17 July 2006 insolvency proceedings were initiated against ET.

12. By an action before the Arbeitsgericht Wesel (Labour Court, Wesel), Mr Klarenberg sought confirmation that his employment relationship with ET had continued under Ferrotron. When the Arbeitsgericht dismissed his action, Mr Klarenberg lodged an appeal with the Landesarbeitsgericht Düsseldorf (Regional Labour Court), seeking (i) an order requiring Ferrotron to reinstate him as head of unit under the terms of the employment contract concluded with ET on 1 January 1989 or, in the alternative, (ii) a declaration that an employment relationship had existed between the parties since 9 December 2005.

13. On the view that the outcome of the dispute depends on the interpretation of Directive 2001/23, the Landesarbeitsgericht Düsseldorf referred the following question to the Court of Justice for a preliminary ruling:

‘Is a part of an undertaking or business only transferred to another employer within the meaning of Article 1(1)(a) and (b) of Directive 2001/23 … if, under the new employer, that part of the undertaking or business continues to be operated as an organisationally autonomous part of an undertaking or business?’

III – Assessment

A – Preliminary observations on the admissibility of the reference and on the subject of the question referred for a preliminary ruling

14. Ferrotron disputes the relevance of the question referred for the purposes of determining the outcome of the dispute in the main proceedings on three grounds.

15. First, it maintains that the existence of a transfer within the meaning of Directive 2001/23 is precluded since it has not been demonstrated that the elements acquired by Ferrotron formed an entity capable of being regarded as the subject of such a transfer. Secondly, it argues that even if a transfer within the meaning of the directive were found to have occurred, that would not entail the transfer of the applicant’s employment contract since his duties with ET were mostly performed in units other than F+E/ET-Systeme and could not therefore be regarded as related to that unit. (5) Thirdly, Ferrotron maintains that the applicant had forfeited the right to rely on the transfer of his contract because, even though he was aware of the agreement between Ferrotron and ET, he had none the less waited until ET’s insolvency became apparent before lodging any claims against Ferrotron.

16. By those arguments, Ferrotron is asking the Court to determine the admissibility of the question referred in terms of its relevance to the resolution of the dispute in the main proceedings. In that regard, I note that the Court has consistently held that, in principle, it is for the national courts alone to determine, having regard to the particular features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they refer to the Court. (6) It follows that, in the factual and legislative context which the national court is responsible for defining and the accuracy of which is not a matter for the Court to determine, the questions submitted by the national court enjoy a presumption of relevance. (7) A reference for a preliminary ruling from a national court may be rejected by the Court only if it is quite obvious that the interpretation of Community law sought by that court is unrelated to the actual facts of the case or the subject-matter of the main action. (8)

17. As it is, the arguments submitted by Ferrotron do not appear to dislodge the presumption of relevance enjoyed, in accordance with the case-law, by the question referred in these proceedings.

18. With regard in particular to Ferrotron’s assertion that the existence of an entity capable of being transferred has not been demonstrated, I would also point out that the referring court clearly bases its analysis on the contrary assumption, since it expresses the view that the F+E/ET‑Systeme unit, which is the unit covered by the agreement between ET and Ferrotron, constitutes ‘a part of a business within the meaning of the first sentence of Paragraph 613a(1) BGB which – as a result of the acquisition of significant tangible assets and related customer and supplier lists, the defendant’s taking over of a proportion of the people with know-how employed in the part of the business and the acquisition, by the parent company, of the rights over its essential products and technologies – was transferred to the defendant’. (9) Rather, the referring court is uncertain whether the transaction in question can be categorised as a transfer within the meaning of the national legislation transposing the directive, given that the transferred entity did not retain its organisational autonomy under the transferee.

19. In consequence, the question whether an entity capable of being transferred existed at the time of the transfer lies outside the scope of the question referred for a preliminary ruling.

B – The concept of a ‘transfer’ within the meaning of Directive 2001/23

21. The same definition of the concept of ‘transfer’ as was introduced by Directive 98/50 appears in Article 1(1)(b) of Directive 2001/23, which repealed Directive 77/187. Recital 8 of Directive 2001/23 reiterates the content of recital 4 of Directive 98/50, thereby confirming that there is continuity, not only in terms of legislation, but also in terms of interpretation, with Directive 77/187, which Directive 2001/23 (12) codifies.

22. In order to clarify the concept of a ‘transfer’ within the meaning of Directive 2001/23 it is therefore necessary to refer to the case-law of the Court on the interpretation of Directive 77/187.

24. In Spijkers (14) in 1986, the Court – in response to a question from the Supreme Court of the Netherlands on the factors to be taken into consideration in order to ascertain the existence of a transfer within the meaning of the directive – provided a definition of the concept of ‘transfer’, the wording of which was to be reiterated consistently in all subsequent case-law.

25. In that judgment the Court stated first that, in the light of the aim of the directive, which is ‘to ensure the continuity of employment relationships within an economic entity, irrespective of any change of ownership’, the decisive test for establishing the existence of a transfer within the meaning of the directive, as opposed to a mere transfer of business assets, is ‘whether the business in question retains its identity’. (15) The Court went on to say that in a case such as the one before the Supreme Court of the Netherlands, in which, at the time of the transfer, the transferor was no longer carrying on business activities, it was necessary to consider ‘whether the business was disposed of as a going concern, as would be indicated, inter alia, by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities’. (16) Furthermore, the Court held that in order to determine whether those conditions were met, ‘it is necessary to consider all the facts characterising the transaction […], including the type of undertaking or business, whether or not the business’s 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 and 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’. (17) The Court explained that all those circumstances ‘are merely individual factors in the overall assessment which must be made and cannot therefore be considered in isolation’. (18) Finally, the Court stated that it is for the national court to make the necessary factual appraisal, in the light of the criteria for interpretation set out by the Court of Justice, in order to establish whether or not there is a transfer within the meaning of the directive.

26. In Spijkers, as in most of the subsequent case-law, (19) at least towards the end of the 1990s, the Court placed particular importance on whether the business activities of the transferor, or similar activities, were continued or resumed by the transferee. The ability of the economic entity transferred not to lose its own identity appeared substantively comparable to its capacity to remain ‘in operation and viable’ (20) after the transfer. That interpretation was substantiated by the fact that the only cases in which the Court had ruled out the existence of a transfer were those involving an undertaking which was in liquidation or administration. (21) Moreover, even within that case-law, the Court consistently distinguished between creditors’ arrangement procedures designed to liquidate assets and procedures under which the activities of the undertaking were to continue: in the latter case, the directive still applied. (22)

27. The judgment in Süzen, (23) however, marked a change of direction as compared with previous decisions.

28. In that case the Court was asked to determine whether Directive 77/187 also applies to a situation in which a person who has 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 without any concomitant transfer of tangible or intangible business assets from one undertaking to the other or taking over by the new employer of a major part of the workforce assigned by his predecessor to the performance of the contract. After defining the concept of ‘economic entity’ as ‘an organised grouping of persons and assets enabling the exercise of an economic activity which pursues a specific objective’ (24) the Court stated that ‘the mere fact that the service provided by the old and the new awardees of a contract is similar does not justify the conclusion that an economic entity has been transferred’. The Court went on to say that ‘an entity cannot be reduced to the activity entrusted to it’; rather ‘[i]ts identity also emerges from other factors, such as its workforce, its management staff, the way in which its work is organised, its operating methods or indeed, where appropriate, the operational resources available to it’. (25)

29. That position has been maintained in subsequent judgments, (26) in which less importance has been attached to the continuation of business activity by the transferee and greater importance to an overall assessment of the facts characterising the transfer operation. In that assessment, however, the degree of importance to be attached to each factor varies according to the characteristics of the case in question, (27) and it is not possible to single out any factor which in the abstract has greater weight than the others. In that regard, the Court has explained that ‘[t]he safeguarding of employees’ rights, which constitutes the subject-matter of the directive […] cannot depend exclusively on consideration of a [single] factor’, (28) even where that factor is one of those upon which that assessment must be based.

30. Thus, for example, the Court has viewed as important, but not decisive, the fact that an undertaking is temporarily closed at the time of the transfer and therefore has no employees, in particular in the case of a seasonal business. (29) Similarly, even though the transfer of business assets is one of the criteria on the basis of which the overall assessment of the transaction must be made, the absence of such a transfer does not, according to the Court, mean that the transaction as a whole falls outside the scope of the directive, (30) unless some of the undertakings involved are in sectors ‘where the tangible assets contribute significantly to the performance of the activity’. (31) Moreover, although the fact that the new employer does not merely pursue the activity in question but also takes over an essential part, in terms of their numbers and skills, of the employees engaged by his predecessor, may be sufficient to constitute a transfer within the meaning of the directive in sectors in which activities are based essentially on manpower, (32) it may not be decisive in other cases. (33) Finally, in Mayeur , (34) the Court held that ‘it cannot be ruled out that, in certain circumstances, factors such as organisation, operation, financing, management and the applicable legal rules identify an economic entity in such a way that any alteration of those factors resulting from transfer of that entity would lead to a change in its identity’. (35) The Court none the less ruled that that was not the situation in the case before it, ‘where a municipality, a legal person governed by public law operating within the framework of specific rules of administrative law, takes over activities relating to publicity and information concerning the services which it offers to the public, where such activities were previously carried out, in the interests of that municipality, by a non-profit-making association which was a legal person governed by private law’. (36) It should none the less be noted that, among the various factors considered in that judgment, the Court attached particular importance to the continuation by the municipality of the activities formerly engaged in by the association and, in particular, to the proportion of the activities connected to the operations of the applicant in the main proceedings. (37)

31. The foregoing brief examination reveals that the approach taken by the Court in order to establish the existence of a transfer within the meaning of Directive 77/178 has essentially been based on a case-by-case assessment.

32. By favouring that approach, the Court has unquestionably – as has been noted by Advocate General La Pergola – preserved ‘a suitable degree of flexibility in applying the relevant criteria to the various economic circumstances that may arise in the Community’ (38), but at the same time has held back from defining the core of the concept of ‘transfer of an undertaking’ or, in other words, its essential minimum content – which would enable a distinction to be drawn in practice between such a transfer and a mere transfer of business assets – thus making the boundaries of the protection provided for under the directive more fluid, but less clear.

33. On the basis of the foregoing considerations, I shall now examine the question referred by the national court.

C – The question referred for a preliminary ruling

34. The referring court is essentially asking the Court whether, for the purposes of Article 1(1)(a) and (b) of Directive 2001/23, there is a transfer of a part of an undertaking or business where the new owner does not preserve the organisational autonomy of the elements acquired, but instead incorporates them into its existing organisational structure. According to the order for reference, recent case-law of the Bundesarbeitsgericht tends to construe such circumstances as a mere transfer of business assets, and to rule out a transfer within the meaning of the national legislation transposing the directive.

35. Referring to the case-law of the Bundesarbeitsgericht, Ferrotron contends that the transferred entity does not retain its identity where it loses its organisational autonomy as a result of the transfer, as would be the case where the resources acquired are incorporated by the transferee into an entirely new organisational structure. In the present case, the way in which Ferrotron’s work is organised is based on sub-division by sector of activity, rather than by product range as was the practice of ET. The employees of ET, like the various elements taken over by Ferrotron, have therefore been incorporated into the structure of the transferee on the basis of a new way of organising the work.

36. The German Government and the Commission, however, take a different view. Referring to the case-law of the Court, they argue that the existence of a transfer within the meaning of the directive must be established in the framework of an overall assessment which has regard to all the relevant factors. The preservation of the organisational autonomy of the entity transferred is only one of the criteria on the basis of which that assessment must be made.

37. I share that view.

38. Above all, it is consistent with the case-by-case approach hitherto taken by the Court and with the emphasis placed by the Court on the importance of assessing each transaction in the light of all the circumstances characterising it. In terms of method, that approach seems to be wholly at odds with the approach whereby the possibility of a transfer of an undertaking within the meaning of the directive is ruled out on the basis of a single factor considered in isolation from an overall assessment. (39)

39. There is no question that, in general terms, the organisational aspect helps to define the ‘identity’ of the transferred economic entity (40) and that – as the Court held in Mayeur (41) – in certain cases, in the same way as factors such as the operation, financing, management and the applicable legal rules, that aspect can so strongly mark the identity of an economic entity that any alteration of that aspect as a result of the transfer would lead to a change in the identity of the entity. (42)

40. However, the case-law contains a number of precedents where the Court has held that a change in the organisational structure of the transferred entity, (43) or a change in the way its work is organised (44) cannot preclude the existence of a transfer within the meaning of the directive even where such changes have brought about a radical transformation in the management methods of the transferred entity, with repercussions for the possible continuation under the transferee of the employment relationships with the transferred staff. (45)

41. In support of its position, Ferrotron refers to the concept of ‘economic entity’ as developed in the case-law and set out in Article 1(1)(b) of Directive 2001/23, arguing that the transferred entity retains its identity only where the transferee preserves the organisational link between all the staff and material assets which go to make up that entity.

42. Under Article 1(1)(b) of Directive 2001/23, there is a transfer within the meaning of that directive where there is a transfer of an economic entity, meaning ‘an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary’, which retains its identity despite the transfer. In effect, that provision refers to organisation as the decisive factor in relation to the concept of ‘economic entity’, which marks its identity. To my mind, that reference must be interpreted as relating not so much to the specific organisation imposed by the employer on the various factors of production, but to the link of interdependence and complementarity between those factors, which ensures that they all work together for the performance of a specified economic activity.

43. However, contrary to what Ferrotron appears to be maintaining, that link is not necessarily weakened where the transferred entity is incorporated into the structure of the transferee, a structure which, for argument’s sake, we shall assume is different in terms of scale and/or organisation from that of the transferor.

44. In other words, the preservation of the identity of the transferred entity does not depend on it retaining its ‘organisational autonomy’ – in the sense of structural autonomy, as referred to by Ferrotron – but on it retaining the link, in terms of operation and objectives, between the various elements transferred, which enables the new owner to make use of those elements in order to carry on a specific economic activity, even where they are incorporated into a different organisational structure.

45. In the case before the referring court, Ferrotron has acquired a number of elements geared to the manufacture and trading of certain products and – contrary to the statement made at the hearing by Ferrotron’s representative – the transaction has not merely supplemented Ferrotron’s staff, but has enabled it to offer a new range of products in addition to those already on offer. Furthermore, it is common ground that Ferrotron has continued the activity formerly carried on by ET, using the organised grouping of personnel, material and non-material elements acquired from ET, even though the employees transferred have been integrated into Ferrotron’s structure and perform their duties in an organisational context which is completely different from that of their previous employer.

47. However, it is for the national court to determine, having regard to all the particular circumstances which characterise the transaction in question and to the various relevant factors, including the organisational factor as referred to above, (46) whether, in the present case, the transferred entity retained its identity following the transfer, as required under the case-law of the Court.

48. Ferrotron argues, lastly, that in the event that the economic entity loses its organisational autonomy following a transfer, the objective which the directive seeks to achieve – namely, to safeguard the employment relationship of the staff affected by the transfer – would in any event be unattainable. In that respect, Ferrotron notes that, under its new way of organising the work, there is no post equivalent to that held by Mr Klarenberg with ET.

49. An argument somewhat similar to that contended for by Ferrotron was put forward by the French Republic in the case which gave rise to the judgment in Mayeur . (47) In an attempt to show that there had been no transfer within the meaning of Directive 77/187 in that case, the French Government stated inter alia that under national law a public entity which takes over an activity previously performed by a legal person governed by private law is required to terminate the employment contracts entered into by the latter. The Court held that the fact that it was impossible for employment contracts to continue under the transferee had no bearing on the question whether there had been a transfer. It held that the obligation to terminate employment contracts constituted, in accordance with Article 4(2) of the Directive, a change in working conditions to the detriment of the employee, directly brought about by the transfer, with the result that the termination of those contracts of employment had to be regarded as resulting from the action of the employer. (48)

50. In concluding my analysis, I should like to express one final thought. The possibility of a transfer, not of an undertaking in its entirety but of one part of an undertaking, is expressly provided for in Directive 2001/23, which extends to the workers affected by such transactions the specific protection provided for therein. It is precisely in such cases that the dividing line between a transfer proper and a mere transfer of factors of production is in danger of becoming extremely fine, making it more difficult to identify the criteria for distinguishing the one from the other, and increasing the risk that certain cases may be regarded as outside the scope of the directive when in fact they properly fall within its purview. If the incorporation of the elements transferred into the organisational structure of the transferee were sufficient in itself to preclude the possibility of a transfer within the meaning of the directive, it would be especially difficult to identify cases where the directive applies when it is part of an undertaking or business that is transferred, and the transaction in question concerns, as in the present case, the transfer of a branch of activity between undertakings operating on the same market and each with their own organisational structure.

51. It follows from all the foregoing considerations that the fact that the transferred part of an undertaking or business does not, under the new employer, continue to be operated as an organisationally autonomous part of the undertaking or business is not sufficient in itself to preclude the existence of a transfer within the meaning of Directive 2001/23.

IV – Conclusions

52. For the reasons set out above, I propose that, in reply to the question referred to the Court for a preliminary ruling from the Landesarbeitsgericht Düsseldorf the Court should state as follows:

Article 1(1)(a) and (b) 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 is to be interpreted as meaning that recognition that a transfer has occurred is not precluded by the fact that, under the new employer, the transferred part of the undertaking or business does not continue to be operated as an organisationally autonomous part of the undertaking or business, provided that the transferred entity retains its identity.

(1) .

(2) – OJ 2001 L 82, p. 16.

(3) – OJ 1977 L 61, p. 26.

(4) – Directive 77/187/EEC cited in point 3 above, and Council Directive 98/50/EC of 29 June 1998 amending Directive 77/187/EEC 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 1998 L 201, p. 88).

(5) – I note, incidentally, that in Case 186/83 Botzen and Others [1985] ECR 519, the Court has already ruled on a reference for a preliminary ruling which raised a question similar to that put by Ferrotron in its second line of argument. In that judgment, the Court explained that where the transfer relates only to a business or to part of a business – in other words to part of the undertaking – the protection afforded by the directive extends to the employees assigned to that part of the business , because ‘an employment relationship is essentially characterised by the link existing between the employee and the part of the undertaking to which he is assigned to carry out his duties’ (paragraph 15). Moreover, in Case C-51/00 Temco [2002] ECR I‑969, the Court clarified that, in the event of transfer of part of a business, ‘the fact that the transferor undertaking continues to exist after one of its activities is taken over by another undertaking and that it retains part of the staff engaged in that activity has no effect on the classification of the transfer under the directive, since the transferred activity is an economic entity in its own right’ (paragraph 29).

(6) – See Case C-448/98 Guimont [2000] ECR I-10663, paragraph 22, and Joined Cases C‑515/99, C‑519/99 to C‑524/99 and C‑526/99 to C‑540/99 Reisch and Others [2002] ECR I‑2157, paragraph 25.

(7) – See Case C‑213/04 Burtscher [2005] ECR I‑10309, paragraph 35.

(8) – See Case C-281/98 Angonese [2000] ECR I-4139, paragraph 18.

(9) – See Part II, paragraph 3, of the order for reference.

(10) – See point 3 of this Opinion.

(11) – See footnote 4.

(12) – See recital 1 of Directive 2001/23.

(13) – See Case 287/86 Ny Mølle Kro [1987] ECR 5465, paragraph 12; Joined Cases 144/87 and 145/87 Berg and Busschers [1988] ECR 2559, paragraph 17; and Case 101/87 Bork International and Others [1988] ECR 3057, paragraph 13.

(14) – See Case 24/85 Spijkers [1986] ECR 1119.

(15) – Paragraph 11; emphasis added.

(16) – Paragraphs 12 and 15.

(17) – Paragraph 13.

(18) – Paragraph 13.

(19) – See, inter alia , Case 324/86 Foreningen af Arbejdsledere i Danmark [1988] ECR 739, paragraph 10; Bork International and Others , cited in footnote 13, paragraph 14; Case C‑29/91 Redmond Stichting [1992] ECR I‑3189, paragraph 31; Case C‑209/91 Watson Rask and Christensen [1992] ECR I‑5755, paragraph 19; and Joined Cases C‑171/94 and C‑172/94 Merckx and Neuhuys [1996] ECR I‑1253, paragraph 16.