delivered on 26 November 2019 (1)

Case C‑344/18

ISS Facility Services NV

Sonia Govaerts,

Atalian NV, formerly Euroclean NV

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

(Reference for a preliminary ruling – Directive 2001/23/EC – Article 3(1) – Transfers of undertakings – Safeguarding of employees’ rights – Public contract for cleaning services – Award of the lots under the contract to two new contractors – Re-engagement of an employee of the previous single contractor assigned to all the lots under the contract – Consequences of the transfer of an economic entity to two transferees)

1.In the present case, the arbeidshof te Gent (Higher Labour Court, Ghent, Belgium) has referred a question to the Court of Justice for a preliminary ruling on the interpretation of Article 3(1) of Directive 2001/23/EC. (2)

2.That question was raised in proceedings between Ms Sonia Govaerts and, on the one hand, ISS Facility Services NV, which was her employer, and on the other, Atalian NV, regarding her dismissal and the consequences thereof after the public contract previously awarded to ISS Facility Services NV was re-tendered and awarded to Atalian NV.

3.Examining that question will lead the Court to address, for the first time, the consequences of the transfer of an economic entity to two transferees for the safeguarding of employees’ rights and obligations under Article 3(1) of Directive 2001/23.

II. Legal framework

4.Recital 3 of Directive 2001/23 states:

‘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.’

5. Article 1(1)(a) and (b) of that directive provides:

(a)‘(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 subparagraph (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.’

‘This Directive shall be without prejudice to national law as regards the definition of contract of employment or employment relationship. However, Member States shall not exclude from the scope of this Directive contracts of employment or employment relationships solely because:

(a)of the number of working hours performed or to be performed;

…’

7. According to the first subparagraph of 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.’

8. Under Article 4 of Directive 2001/23:

‘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.

… 2. If the contract of employment or the employment relationship is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment or of the employment relationship.’

9.Directive 2001/23 was transposed into Belgian law by Collective Labour Agreement No 32a of 7 June 1985 concerning the safeguarding of employees’ rights in the event of a change of employer as a result of the legal transfer of an undertaking and regulating the rights of employees re-engaged in the event of a takeover of assets following insolvency or judicial composition with transfer of assets, rendered mandatory by Royal Decree of 25 July 1985, (3) as amended by Collective Labour Agreement No 32d of 13 March 2002, rendered mandatory by Royal Decree of 14 March 2002 (4) (‘Collective Agreement No 32a’).

10. Under Article 1 of Collective Agreement No 32a:

‘The primary purpose of this collective labour agreement is to ensure:

Moreover, the present convention governs the information to be given to employees affected by a transfer where there are no employee representatives within the undertaking.’

11. According to Article 2 of Collective Agreement No 32a:

‘For the purposes of this collective labour agreement:

…’

12. Article 6 of Collective Agreement No 32a provides:

‘The present chapter shall apply to any change of employer resulting from a legal transfer of an undertaking or part of an undertaking, except in the cases referred to in Chapter III of this collective labour agreement.

Subject to the provisions of paragraph 1, there is a transfer for the purposes of this collective labour agreement 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.’

13. Article 7 of Collective Agreement No 32a is worded as follows:

‘The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer within the meaning of Article 1(1) shall, by reason of such transfer, be transferred to the transferee.’

14. Article 10 of Collective Agreement No 32a provides:

‘If the contract of employment is terminated because the transfer within the meaning of Article 1(1) involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment.’

III. The facts in the main proceedings, the question referred and the procedure before the Court

15.Ms Govaerts was employed as a cleaner from 16 November 1992 by the undertaking Multiple Immo Services NV, and subsequently by its legal successors, first CCA NV, then ISS Facility Services. She was employed under three separate part-time employment contracts.

16.On 1 September 2004 Ms Govaerts concluded a new employment contract of indefinite duration with ISS Facility Services, retaining the length of service acquired since 16 November 1992. ISS Facility Services was responsible for the cleaning and maintenance of various municipal buildings owned by the City of Ghent, divided into three ‘lots’. Lot 1 comprised museums and historical buildings, Lot 2, libraries and community centres, and Lot 3, administrative buildings. On 1 April 2013 Ms Govaerts became project manager for the three areas of work corresponding to these lots. She was unfit for work from 23 April to 26 July 2013.

17.The City of Ghent issued an invitation to tender relating to all the abovementioned lots for the period between 1 September 2013 and 31 August 2016. At the end of that procedure, on 13 June 2013, ISS Facility Services was not successful. The first and third lots were awarded to Atalian and the second lot was awarded to Cleaning Masters.

18.On 1 July 2013 ISS Facility Services informed Atalian that, since Ms Govaerts was working full time on those areas of work, 85% of which had been taken over by Atalian, Collective Agreement No 32a had to be applied to her. Atalian has disputed that since 3 July 2013.

19.By registered letter of 30 August 2013, ISS Facility Services informed Ms Govaerts that, as a result of the transfer of the undertaking and her employment on the areas of work corresponding to Lots 1 and 3, she would enter the service of Atalian with effect from 1 September 2013, and from that date onwards, would no longer form part of the staff of ISS Facility Services. Consequently ISS Facility Services issued Ms Govaerts with an unemployment certificate indicating 31 August 2013 as her last day of employment.

20.By registered letter of 30 August 2013, ISS Facility Services informed Atalian that Ms Govaerts’ contract of employment would be automatically transferred to it with effect from 1 September 2013 and that, as of Monday 2 September 2013, Ms Govaerts’ relationship would be with Atalian alone.

21.On 3 September 2013 Atalian informed ISS Facility Services that it did not consider there to have been a transfer of an undertaking within the meaning of Collective Agreement No 32a and that, therefore, there was no contractual relationship between Atalian and Ms Govaerts.

22.On 18 November 2013 Ms Govaerts brought an action against both ISS Facility Services and Atalian before the arbeidsrechtbank te Gent (Labour Court, Ghent, Belgium) seeking payment of compensation in lieu of notice, an end-of-year bonus pro rata temporis, and leave pay for the 2012 and 2013 leave years.

23.By judgment of 15 October 2015, that court found that Ms Govaerts’ dismissal was unlawful and ordered ISS Facility Services to pay EUR 81 561.07 as compensation in lieu of notice, EUR 1 841.92 as an end-of-year bonus and EUR 4 343.28 as leave pay, with interest on all three amounts. The action brought against Atalian was held to be inadmissible.

24.That court held, inter alia, that Collective Agreement No 32a did not apply to Ms Govaerts in so far as the latter, as project manager, was responsible for the planning and delivery of the cleaning work, meaning that she did not carry out the cleaning work on the City of Ghent areas of work which was the subject of the transfer, but was entrusted with administrative and organisational tasks. Consequently, Ms Govaerts did not automatically enter the service of Atalian on 1 September 2013.

ISS Facility Services has brought an appeal against that judgment before the arbeidshof te Gent (Higher Labour Court, Ghent). It submits that, in accordance with Collective Agreement No 32a, 85% of Ms Govaerts’ employment contract was transferred to Atalian and 15% was transferred to Cleaning Masters, with effect from 1 September 2013.

26.Unlike the arbeidsrechtbank te Gent (Ghent Labour Court), the referring court considers that, in the present case, the economic entity has retained its identity, within the meaning of Article 1 of Directive 2001/23, and that there has therefore been a transfer of an undertaking within the meaning of that provision. The latter court infers that, in accordance with Article 7 of Collective Agreement No 32a, which reproduces Article 3(1) of Directive 2001/23, the transferor’s rights and obligations arising from a contract of employment existing on the date of the transfer, namely 1 September 2013, were, by reason of such transfer, automatically transferred to Atalian and Cleaning Masters in their capacity as transferees.

27.In so far as Ms Govaerts’ tasks relate exclusively to the City of Ghent areas of work, the referring court considers that, on 1 September 2013, she was part of the undertaking transferred. That court therefore has doubts as to the consequences, under Article 3(1) of Directive 2001/23, of that transfer of an undertaking as regards Ms Govaerts’ employment contract.

28.In those circumstances, by a decision of 14 May 2018, received by the Registry of the Court of Justice on 25 May 2018, the arbeidshof te Gent (Higher Labour Court, Ghent) decided to stay the proceedings in order to refer the following question to the Court for a preliminary ruling:

‘Must Article 3(1) of Directive [2001/23/EC] be interpreted as meaning that, in the case where there is a simultaneous transfer of various parts of an undertaking within the meaning of Article 1(1) of that directive, … which parts are transferred to various transferees, the rights and obligations arising from the employment contract, as it existed at the time of the transfer, of a worker who was employed in each of the transferred parts, will be transferred to each of the transferees, albeit in proportion to the extent of the employment of the aforementioned worker in the part of the undertaking acquired by each transferee,

or must that provision be interpreted as meaning that the aforementioned rights and obligations are transferred in their entirety to the transferee of the part of the undertaking in which the aforementioned worker was principally employed,

or as meaning that, if the provisions of [that] directive cannot be interpreted in any of the aforementioned ways, there is no transfer to any transferee of the rights and obligations arising from the employment contract of the aforementioned worker, which is also the case if it is not possible to determine separately the extent of the worker’s employment in each of the transferred parts of the undertaking?’

29.Written observations were lodged by Ms Govaerts, ISS Facility Services, Atalian and the European Commission. All the parties presented oral arguments at the hearing held on 8 May 2019.

30.The first and second recitals in the preamble to Directive 77/187/EEC (5) stated that ‘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 businesses to other employers as a result of legal transfers or mergers’ and that, in that context ‘it is necessary to provide for the protection of employees, in particular, to ensure that their rights are safeguarded’.

31.These recitals were reproduced in Directive 2001/23, which repealed and replaced Directive 77/187. (6)

32.It should be noted briefly, as pointed out by the Court in its case-law, that Directive 77/187 is intended to achieve only partial harmonisation of national employment law, essentially by extending the protection guaranteed to workers independently by the laws of the individual Member States to cover the case where an undertaking is transferred. (7) The Court has repeatedly held that Directive 2001/23 is intended to safeguard the rights of employees in the event of a change of employer by allowing them to continue to work for the new employer in the same conditions as those agreed with the transferor. (8) According to the Court, the aim of Directive 2001/23 is therefore to ensure, as far as possible, that the contract of employment or the employment relationship continues unchanged with the transferee so that the employees affected by the transfer of the undertaking are not placed in a less favourable position solely as a result of the transfer. (9) Directive 2001/23 is not intended to prevent the restructuring of undertakings in order to make them more competitive and efficient. Indeed, that directive addresses only the social consequences of such restructuring by mitigating its effects. Although, in accordance with the objective of that directive, the interests of the employees affected by the transfer must be protected, those of the transferee, who must be in a position to make the adjustments and changes necessary to carry on his business, cannot be disregarded. (10) However, as the Court has also pointed out in its case-law, Directive 2001/23 does not aim solely to safeguard the interests of employees in the event of the transfer of an undertaking, but seeks to ensure a fair balance between the interests of those employees, on the one hand, and those of the transferee, on the other. (11)

33.First, Directive 77/187 was substantively amended by Directive 98/50/EC (12) to take into account the case-law of the Court, and was then codified, without substantive amendments, by Directive 2001/23. In particular, the concept of the ‘transfer of an undertaking’ was introduced by Directive 98/50 and appears in Article 1(1)(b) of Directive 2001/23. The Court’s case-law on Directive 77/187 is therefore very useful for the interpretation of the provisions of Directive 2001/23. In so far as that case-law is, in essence, based on a case-by-case assessment, it is also useful to understand the concept of the ‘transfer of an undertaking’, within the meaning of Directive 2001/23, and the consequences for employees of such a transfer under Article 3(1) of that directive.

34.It is clear from the factual and legal context of the dispute in the main proceedings that Ms Govaerts was employed by ISS Facility Services as the person responsible for the cleaning and maintenance services provided by that undertaking to the City of Ghent. That contract, which concerned a number of municipal buildings divided into three lots, was the subject of a new invitation to tender at the end of which the lots were awarded to two new cleaning companies, Atalian, which was awarded two lots, and Cleaning Masters, which was awarded one lot.

35.By its question, the referring court asks the Court, in essence, whether Article 3(1) of Directive 2001/23 should be interpreted as precluding national legislation under which, where there is a simultaneous transfer of various parts of an undertaking to various transferees, within the meaning of Article 1(1) of that directive, the rights and obligations arising from a contract of employment existing on the date of the transfer are to be transferred to each of the transferees in proportion to the duties carried out by the employee in each of the transferred parts of the undertaking.

36.To answer that question, it is necessary to determine at the outset whether Directive 2001/23 is applicable to the present case. Directive 2001/23 is applicable to the case in the main proceedings only if there is a ‘transfer of an undertaking’ within the meaning of Article 1(1) of that directive.

37.First, it is for the national court to make the necessary findings of fact, in the light of the criteria for interpretation specified in the case-law of the Court, in order to establish whether or not there is a transfer of an undertaking. (13)

) that a transfer of an undertaking does not encompass workers who, being employed in an administrative department of the undertaking which has not itself been transferred, carried out certain duties for the benefit of the part of the undertaking transferred. Ms Govaerts infers from this (

48.I am not convinced by that argument, which, in my opinion, is based on a misreading of those judgments.

49.First, I would point out that, the concept of an ‘employee’, within the meaning of Directive 2001/23, is defined in Article 2(1)(d) thereof as ‘any person who, in the Member State concerned, is protected as an employee under national employment law’. Where such a person is protected as an employee under national law and has an employment contract on the date of the transfer, he or she may be regarded as an ‘employee’ and thus benefit from the protection of Directive 2001/23. It is clear from the order for reference that the collective agreement applicable to this case concerns all the employees carrying out cleaning work on the areas of work within one of the three City of Ghent lots. However, it is not apparent either from the order for reference or from the documents before the Court that Ms Govaerts is not protected as an ‘employee’ under national law and is not therefore regarded as an ‘employee’.

50.Secondly, according to the settled case-law of the Court, in order to determine whether there is a ‘transfer’ of an undertaking, within the meaning of Article 1(1) of Directive 2001/23, the decisive criterion is whether the entity in question retains its identity, as indicated, inter alia, by the fact that its operation is actually continued or resumed. That wording was introduced by Directive 98/50 into Directive 77/187, and appears in Article 1(1)(b) of Directive 2001/23.

51.Accordingly, in order to determine whether such an entity has retained its identity, 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. According to the Court, all those circumstances are merely individual factors in the overall assessment which must be made and cannot therefore be considered in isolation.

52.The Court has also stated that an economic entity is able, in certain sectors, to function without any significant tangible or intangible assets, and therefore the retention of the identity of such an entity following the transaction affecting it cannot, logically, depend on the transfer of such assets. Since the judgment in Süzen, the Court has held that, inasmuch as, in certain labour-intensive sectors, such as the cleaning services sector, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, ‘such an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task’. In those circumstances, the Court has held that ‘the new employer takes over a body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis’.

53.Thirdly, it should be noted that, according to the case-law of the Court, ‘any organised grouping of persons and of assets enabling the exercise of an economic activity pursuing a specific objective, and which is sufficiently structured and autonomous, constitutes [an economic] entity’. Accordingly, for the purpose of the application of Directive 2001/23, the economic entity concerned must have a sufficient degree of functional autonomy, the concept of ‘autonomy’ referring to the powers granted to those in charge of the group of workers concerned, to organise, relatively freely and independently, the work within that group and, more particularly, to give instructions and allocate tasks to subordinates within the group, without direct intervention from other organisational structures of the employer.

54.Consequently, in my view, in so far as, according to the order for reference, Ms Govaerts, as project manager, was part of the autonomous group of transferred employees which she was required specifically to manage, both on site and at the headquarters of the undertaking, it is therefore clear, as rightly noted by the Commission, that she was assigned to the economic entity transferred. The situation would have been different if Ms Govaerts had not carried out most of her activities within the economic entity concerned, but ‘[having been] employed in an administrative department of the undertaking which [had] not itself been transferred, [she had] carried out certain duties for the benefit of the part transferred’. However, that is not the case here, since Ms Govaerts was responsible, within the economic entity transferred, for the planning and organisation of the work to be carried out on the areas of work within the three City of Ghent lots, and was thus one of the members of staff affected by the transfer of the undertaking. The decisive factor in establishing whether Ms Govaerts is part of an economic entity is therefore not the length of the relationship with the economic entity prior to the transfer, but the fact that she was a project manager for the three lots transferred and that, consequently, she was responsible for coordinating and managing the cleaning staff within that economic entity, which is a matter for the referring court to verify.

55.Finally, I would also note that the Court has already held that the fact that an economic entity is wound up and its activities transferred to two other entities does not, in itself, preclude the applicability of Directive 2001/23. If it did, moreover, it would be easy to circumvent the application of that directive.

56.It follows from the foregoing that a transfer such as that at issue in the case in the main proceedings falls within the substantive scope of Directive 2001/23. In such a case, it is for the national court to establish, in the light of the foregoing interpretative guidance, whether the transferred entity has retained its identity.

57.It is clear from the foregoing that the fact that the activities of the economic entity which employed Ms Govaerts were transferred to two other entities, namely Atalian and Cleaning Masters, does not mean that there was no transfer of an undertaking, within the meaning of Article 1(1)(a) of Directive 2001/23.

58.However, it is still necessary to examine the fundamental question as regards the consequences of a simultaneous transfer to two transferees for the safeguarding of workers’ rights and obligations under the first subparagraph of Article 3(1) of Directive 2001/23. More specifically, it is necessary to determine whether ISS Facility Services’ rights and obligations arising from Ms Govaerts’ contract of employment, as it existed on the date of the transfer, were transferred to Atalian or Cleaning Masters or both.

59.The first subparagraph of Article 3(1) of Directive 2001/23 provides that the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of that transfer must, by reason of such transfer, be transferred to the transferee. That provision does not specify, however, how the transferred staff should be distributed among those new economic entities.

60.In the present case, the referring court puts forward four possible interpretations of the first subparagraph of Article 3(1) of Directive 2001/23. The parties intervening before the Court are divided on the interpretation of that provision.

61.ISS Facility Services submits that the rights and obligations arising from the contract at issue are transferred in their entirety to the transferee of the part of the undertaking in which the employee concerned was principally employed and to which she must be regarded as having been assigned. It is only in the alternative that ISS Facility Services refers to the possibility of the work performed by Ms Govaerts being divided over each of the lots concerned, so that she is regarded as being subject to two part-time employment contracts. The solution proposed primarily by ISS Facility Services is consistent with the second possibility set out by the referring court in its question, while the solution it proposes in the alternative fits in with the first possibility referred to in the question referred for a preliminary ruling.

62.Ms Govaerts considers that, if indeed there is a transfer of an undertaking, rights and obligations are transferred in their entirety to the transferee of the part of the undertaking in which she was employed on a permanent basis. In the case of several simultaneous transfers of undertakings, the possibility of transferring employees on a part-time basis to various undertakings is not only incompatible with the concept of a ‘transfer of an economic entity which retains its identity’, but also undermines the objective of Directive 2001/23 of protecting employees in the event of a change of employer.

63.Atalian agrees, in essence, with Ms Govaerts on this last point, and adds that, according to Belgian legislation, weekly working time for part-time employees must not be less than one third of the weekly working time for full-time employees. Therefore, transferring the rights and obligations arising from a contract of employment proportionately among several transferee entities could lead to an infringement of national law.

64.Last, as is clear from its written observations, the Commission considers that the question asked by the referring court is answered in the judgment in Botzen and Others. Accordingly, it is of the opinion that it is sufficient to divide the full-time contract at issue in the main proceedings into two part-time contracts in proportion to the activity carried out for each of the transferees.

65.I am of the opinion that, while the Commission’s proposed answer to the question asked by the referring court admittedly needs to be further refined, that judgment of the Court nevertheless provides the starting point for the examination of that question.

(a) The transfer of the transferor’s rights and obligations arising from a contract of employment or from an employment relationship by reason of a transfer of an undertaking: the findings of the Court in Botzen and Others

66.In order fully to understand the scope of the judgment in Botzen and Others, I shall recall, briefly, the facts of the case. That case concerned the transfer of former employees of an undertaking which was declared insolvent to a new undertaking. The latter undertaking had been set up, in particular, in order to safeguard a proportion of the jobs. Those two undertakings had concluded an agreement providing, inter alia, for staff from certain departments of the insolvent undertaking to be re-engaged by the new undertaking. However, the general and administrative departments were excluded. In that context, the Court examined whether Directive 77/187 extended to the transferor’s rights and obligations arising from a contract of employment existing on the date of the transfer and entered into with employees who, although not belonging to the part of the undertaking which was transferred, carried on certain activities using the assets assigned to the transferred part, or who, being assigned to an administrative department of the undertaking which had not itself been transferred, carried out certain duties for the benefit of the transferred part of the undertaking. On the basis of the criterion that ‘an employment relationship is essentially characterised by the link existing between the employee and the part of the undertaking or business to which he is assigned to carry out his duties’, the Court held that, in order to assess whether those rights and obligations are transferred under Directive 77/187 ‘it is … sufficient to establish to which part of the undertaking or business the employee was assigned’. In its judgment, the Court answered that, in the transfer at issue, the transferor’s rights and obligations were not transferred to the transferee.

67.It is true that the case which gave rise to the judgment in Botzen and Others concerned a transfer of an undertaking to a single transferee, and it may be considered that the reasoning in that case does not lend itself to application by analogy in this case. However, that judgment seems to me to be relevant for the purpose of assessing whether (or not) the transferor’s rights and obligations arising from that employment relationship have been transferred to the transferee by reason of that transfer. It is therefore essential to establish in which part of the undertaking (the part of the undertaking which was transferred or the part which was not) the employee carried out her duties: if the employee carried out her duties in the transferred part of the undertaking or economic entity, the transferor’s rights and obligations arising from that employee’s contract of employment should therefore also have been transferred.

68.It is apparent from the order for reference that Ms Govaerts was assigned to the economic entity which was transferred and that, in accordance with Article 7 of Collective Agreement No 32a, ISS Facility Services’ rights and obligations arising from the employees’ contracts of employment existing on the date of the transfer were, by reason of that transfer, automatically transferred to Atalian and to Cleaning Masters.

69.The question then arises as to whether the fact that, in the case in the main proceedings, the economic entity was transferred to not one but two transferees means that the criterion of the link existing between the employee and the transferred part of the undertaking cannot be used as the basis for assessing whether the transferor’s rights and obligations arising from a contract of employment have been transferred to those transferees.

70.I believe not. Indeed, where the economic entity to which an employee was assigned has been transferred, the transferor’s rights and obligations arising from the contract of employment are transferred to the transferee. In my opinion, it is irrelevant to the transfer of rights and obligations whether the entity has been transferred to one transferee or to various transferees simultaneously. As noted by the referring court, if the three City of Ghent lots had been awarded only to Atalian, it is obvious that ISS Service Facility’s rights and obligations arising from Ms Govaerts’ contract of employment would have been transferred to Atalian.

71.That being said, it seems to me that the Commission goes even further in considering that the criterion of the link existing between the employee and the transferred part of the undertaking may also apply if the employment contract of an employee assigned to the different parts of the undertaking transferred simultaneously to two transferees is divided between them. In that regard, the Commission states that it is sufficient to divide the full-time contract at issue in the main proceedings into two part-time contracts in proportion to the activity carried out for each of the transferees.

(b) The transferor’s rights and obligations arising from a contract of employment or from an employment relationship by reason of a transfer of an undertaking to a transferee: applying the criterion of ‘principal transferee’ or the criterion of the transfer to two transferees in proportion to the duties carried out by the employee

72.As is clear from the case-law cited in point 32 of this Opinion, it should be recalled that it is the objective of Directive 2001/23 to ensure that employees affected by a transfer are protected in their employment relationships with the transferee in the same way as they were in their employment relationships with the transferor, and that ‘[the interests] of the transferee [are not] disregarded’. That directive does not aim solely to protect or safeguard the interests of employees in the event of transfer of an undertaking, but seeks to ensure a fair balance between the interests of those employees, on the one hand, and those of the transferee, on the other. By contrast, Directive 2001/23 cannot usefully be invoked in order to obtain an improvement of remuneration or other working conditions on the occasion of a transfer of an undertaking.

73.It follows that, in the light of the objectives of Directive 2001/23, ISS Facility Services’ argument that the rights and obligations arising from the contract of employment in question have been transferred in their entirety to the transferee of the part of the undertaking in which the employee concerned was principally employed must be rejected, in so far as that entails an improvement in the working conditions of the employee affected by the transfer.

74.In this case, Ms Govaerts was the project manager for the three areas of work corresponding to the three lots awarded, two of which were awarded to Atalian and one to Cleaning Masters. Accordingly, applying the criterion of ‘the undertaking or part of the undertaking in which the employee concerned was principally employed’ or of the ‘principal transferee’, as advocated by ISS Facility Services, would result in Ms Govaerts having a full-time employment contract with Atalian, whereas, before the transfer, she worked part-time (66%) on the areas of work corresponding to the two lots awarded to that undertaking. That transferee would thus be required to re-engage on a full-time (100%) basis an employee who worked only part-time (66%) for the transferor in respect of those two lots. Moreover, as rightly noted by the Commission, it is even more difficult to apply that criterion when an undertaking is transferred in particular to three or four transferees.

75.By contrast, dividing a full-time employment contract, following the transfer of an undertaking, into several part-time employment contracts and, therefore, transferring the affected employee’s rights and obligations arising from that contract with the transferor in proportion to the duties carried out by the employee seems to me to be consistent with the objective of Directive 2001/23.

76.Such a solution is supported by the wording of Article 2(2)(a) of Directive 2001/23, which provides that ‘Member States shall not exclude from the scope of this Directive contracts of employment or employment relationships solely because of the number of working hours performed or to be performed’. It follows that part-time employment relationships fall within the substantive scope of that directive.

77.However, it is necessary to take into account the implications of such a solution in the light of the employee protection objective pursued by Directive 2001/23. Accordingly, it should be noted that, just as that directive cannot be invoked to obtain an improvement in the working conditions of the employee affected by the transfer of the undertaking, neither can it be invoked in order to worsen those conditions.

78.It should be noted that Article 4(2) of Directive 2001/23 provides that ‘if the contract of employment or the employment relationship is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment or of the employment relationship’.

79.Accordingly, in the event that it proves impossible to divide the employment contract at issue between the two transferees, or that dividing the contract undermines the safeguarding of employees’ rights guaranteed by that directive, or if, after the transfer of the undertaking, the employee does not agree to the division of his/her contract, the employment relationship at issue may be terminated by the employer or employers, in accordance with Article 4(2) of Directive 2001/23. It seems to me that the possibility open to the employee to reject the division of their contract of employment and to rely on Article 4(2) of that directive is justified by the fact that dividing the contract may, by its nature, have significant disadvantages for the employee, in particular as regards the performance of their duties.

80.In light of all the foregoing considerations, I propose that the Court should answer the question referred by the arbeidshof te Gent (Higher Labour Court, Ghent, Belgium) as follows:

(1) Article 3(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 must be interpreted as not precluding national legislation under which, where there is a simultaneous transfer of various parts of an undertaking, within the meaning of Article 1(1) of that directive, to various transferees, the rights and obligations arising from a contract of employment existing at the date of the transfer are to be transferred to each of the transferees in proportion to the duties carried out by the employee in each of the transferred parts of the undertaking.

(2) However, in the event that it proves impossible to divide the employment contract at issue between the two transferees, or that dividing the contract adversely affects the safeguarding of employees’ rights guaranteed by that directive, which it is for the referring court to verify, or if, after the transfer of the undertaking, the employee rejects the division of his/her employment contract, the contract of employment or employment relationship at issue may be regarded as terminated, and that termination must be regarded as the responsibility of the transferee(s), in accordance with Article 4(2) of that directive.

(<span class="coj-note">1</span>) Original language: French.

(<span class="coj-note">2</span>) Council Directive 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)

(<span class="coj-note">3</span>) Moniteur belge of 9 August 1985, p. 11527.

(<span class="coj-note">4</span>) Moniteur belge of 29 March 2002, p. 13328.

(<span class="coj-note">5</span>) Council Directive 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 businesses (OJ 1977 L 61, p. 26).

(<span class="coj-note">6</span>) See recitals 2 and 3 in the preamble to Directive 2001/23.

(<span class="coj-note">7</span>) See, inter alia, judgment of 11 July 1985, Foreningen af Arbejdsledere i Danmark (105/84, EU:C:1985:331, paragraph 26). As regards Directive 2001/23, see judgment of 6 March 2014, Amatori and Others (C‑458/12, EU:C:2014:124, paragraph 41 and the case-law cited). The EU legislature considered that the differences still existing between the Member States in terms of the extent of employee protection in the event of the restructuring of undertakings could have a direct impact on the functioning of the internal market, and that those differences should be reduced. See the second and third recitals in the preamble to Directive 77/187. See, in that regard recital 4 in the preamble to Directive 2001/23.

(<span class="coj-note">8</span>) See judgment of 9 March 2006, Werhof (C‑499/04, EU:C:2006:168, paragraph 31).

(<span class="coj-note">9</span>) See judgment of 18 July 2013, Alemo-Herron and Others (C‑426/11, EU:C:2013:521)

paragraph 25).

(<span class="coj-note">12</span>) Council Directive of 29 June 1998 amending Directive 77/187/EEC (OJ 1998 L 201, p. 88). As regards that amendment, recital 4 of Directive 98/50, the content of which is reproduced in recital 8 of Directive 2001/23, stated that legal security and transparency required ‘that the legal concept of transfer be clarified in the light of the case-law of the Court of Justice’ and that such clarification did not alter the scope of Directive 77/187 as interpreted by the Court.

(<span class="coj-note">13</span>) See, to that effect, judgment of 18 March 1986, Spijkers (24/85, EU:C:1986:127, paragraph 14).

(<span class="coj-note">14</span>) See judgment of 18 July 2013, Alemo-Herron and Others (C‑426/11, EU:C:2013:521, paragraphs 9 and 26).

(<span class="coj-note">15</span>) See judgment of 20 January 2011, Werhof (C‑463/09, EU:C:2011:24, paragraph 26).

(<span class="coj-note">16</span>) See judgments of 15 October 1996, Henke (C‑298/94, EU:C:1996:382, paragraph 14); of 26 September 2000, Mayeur (C‑175/99, EU:C:2000:505, paragraph 33); and of 11 November 2004, Delahaye (C‑425/02, EU:C:2004:706, paragraph 30).

(<span class="coj-note">17</span>) See, to that effect, judgment of 20 January 2011, CLECE (C‑463/09, EU:C:2011:24, paragraph 27).

(<span class="coj-note">18</span>) See judgments of 19 May 1992, Redmond Stichting (C‑29/91, EU:C:1992:220, paragraph 11); of 15 June 1988, Bork International and Others (C‑101/87, EU:C:1988:308, paragraph 13); of 20 November 2003, Abler and Others (C‑340/01, EU:C:2003:629, paragraph 41); of 15 December 2005, Güney-Görres and Demir (C‑232/04 and C‑233/04, EU:C:2005:778, paragraph 37); of 20 January 2011, CLECE (C‑463/09, EU:C:2011:24, paragraph 30); and of 7 August 2018, Colino Sigüenza (C‑472/16, EU:C:2018:646, paragraph 28).

(<span class="coj-note">19</span>) See, inter alia, judgments of 17 December 1987, Ny Mølle Kro (287/86, EU:C:1987:573, paragraph 12); of 15 June 1988, Bork International and Others (C‑101/87, EU:C:1988:308, paragraph 13); of 19 May 1992, Redmond Stichting (C‑29/91, EU:C:1992:220, paragraph 11); of 20 November 2003, Abler and Others (C‑340/01, EU:C:2003:629, paragraph 41); of 15 December 2005, Güney-Görres and Demir (C‑232/04 and C‑233/04, EU:C:2005:778, paragraph 37); of 20 January 2011, CLECE (C‑463/09, EU:C:2011:24, paragraph 30); and of 7 August 2018, Colino Sigüenza (C‑472/16, EU:C:2018:646, paragraph 28).

(<span class="coj-note">20</span>) See, inter alia, judgment of 7 March 1996, Merckx and Neuhuys (C‑171/94 and C‑172/94, EU:C:1996:87, paragraphs 28 and 30).

(<span class="coj-note">21</span>) See judgments of 10 February 1988, Foreningen af Arbejdsledere i Danmark (324/86, EU:C:1988:72, paragraph 11), in which the Court held that Directive 77/187 was to apply in the absence of a contract between the two successive employers running the undertaking: ‘the directive applies where, upon the termination of a non-transferable lease, the owner of an undertaking leases it to a new lessee who carries on the business without interruption with the same staff, who had been given notice on the expiry of the initial lease.’

(<span class="coj-note">22</span>) See, inter alia, judgments of 12 November 1992, Watson Rask and Christensen (C‑209/91, EU:C:1992:436, paragraph 17); of 14 April 1994, Schmidt (C‑392/92, EU:C:1994:134, paragraphs 12 to 14); and of 11 March 1997, Süzen (C‑13/95, EU:C:1997:141, paragraph 11).

). In those judgments, the Court held that the scope of Directive 77/187 covers situations in which an undertaking entrusts to another undertaking, by means of a contract, the responsibility for operating a canteen service for employees, which was previously managed directly, in return for a fee and various advantages, details of which are laid down by the agreement between them, and the responsibility for carrying out cleaning work which it previously carried out itself; and a situation in which a person who had entrusted the cleaning of his premises to a first undertaking terminates his contract with that undertaking and, for the performance of similar work, enters into a new contract with a second undertaking. As regards the succession of service contracts, see also judgments of 10 December 1998, Hernández Vidal and Others (C‑127/96, C‑229/96 and C‑74/97, EU:C:1998:594, paragraph 35), and of 20 November 2003, Abler and Others (C‑340/01, EU:C:2003:629, paragraph 43).

(<span class="coj-note">23</span>) As regards, in particular, a public home-help service for persons in need in a municipality, see judgment of 10 December 1998, Hidalgo and Others (C‑173/96 and C‑247/96, EU:C:1998:595, paragraph 34). As regards a public service contract for scheduled public transport by bus, see judgment of 25 January 2001, Liikenne (C‑172/99, EU:C:2001:59, paragraph 44). As regards a situation where a public contract for services relating to security checks on passengers and their baggage in an airport passes from one service provider to another, see judgment of 15 December 2005, Güney-Görres and Demir (C‑232/04 and C‑233/04, EU:C:2005:778, paragraph 37). Lastly, as regards the cessation of the activity of the first contractor before the end of the current academic year and the designation of a new contractor at the beginning of the following school year for a service contract relating to the management of a municipal academy of music, see judgment of 7 August 2018, Colino Sigüenza (C‑472/16, EU:C:2018:646, paragraph 46).

(<span class="coj-note">24</span>) As regards the engagement of the staff of a security company imposed by a collective agreement, see judgment of 11 July 2018, Somoza Hermo and Ilunión Seguridad (C‑60/17, EU:C:2018:559, paragraph 38). As regards the engagement of part of the staff of a subcontracted cleaning undertaking imposed by a collective agreement, see judgment of 24 January 2002, Temco (C‑51/00, EU:C:2002:48, paragraph 27).

(<span class="coj-note">25</span>) According to the referring court, the transfer of an undertaking by means of a collective agreement resulted, in this case, in an automatic change of the person who exercises the employer’s authority over the workers in service. That court states that all workers carrying out cleaning work on the sites corresponding to the three City of Ghent lots had entered the service of the two contractors on the basis of Article 3 of the Collective Labour Agreement, concluded by the Joint Committee for cleaning and disinfection undertakings, relating to the re-engagement of staff as a result of the transfer of a maintenance contract, rendered compulsory by the Royal Decree of 19 July 2006 (‘the sectoral collective agreement’). In addition, it notes that, in accordance with Article 7 of Collective Agreement No 32a, ISS Facility’s rights and obligations arising from the contracts of employment existing on the date of the transfer (1 September 2013) were, by reason of such transfer, transferred to Atalian and Cleaning Masters.

(<span class="coj-note">26</span>) Judgment of 20 January 2011 (C‑463/09, EU:C:2011:24).

(<span class="coj-note">27</span>) Judgment of 7 February 1985 (186/83, EU:C:1985:58).

(<span class="coj-note">28</span>) Judgment of 10 December 1998, Hernández Vidal and Others (C‑127/96, C‑229/96 and C‑74/97, EU:C:1998:594).

(<span class="coj-note">29</span>) As regards the scope <span class="coj-italic">ratione personae</span> of Directive 77/187, the Court has repeatedly held that only persons who are employees for the purposes of national law could avail themselves of the protection provided by that directive. See, inter alia, judgment of 14 September 2000, Collino and Chiappero (C‑343/98, EU:C:2000:441, paragraph 36 and the case-law cited). That reference back to national law was codified by Directive 98/50, and subsequently by Directive 2001/23.

(<span class="coj-note">30</span>) See, inter alia, judgment of 6 September 2011, Scattolon (C‑108/10, EU:C:2011:542, paragraph 39 and the case-law cited).

(<span class="coj-note">31</span>) See footnote 25.

(<span class="coj-note">32</span>) See, inter alia, judgments of 18 March 1986, Spijkers (24/85, EU:C:1986:127, paragraph 13); of 11 March 1997, Süzen (C‑13/95, EU:C:1997:141, paragraph 14); of 20 November 2003, Abler and Others (C‑340/01, EU:C:2003:629, paragraph 33); and of 20 January 2011, CLECE (C‑463/09, EU:C:2011:24, paragraph 34).

, EU:C:1998:594, paragraph

31

); of 29 July 2010, UGT-FSP (C‑151/09, EU:C:2010:452, paragraph

28

); and of 20 January 2011, CLECE (C‑463/09, EU:C:2011:24, paragraph

35

).

<span class="coj-note">35</span> Judgment of 11 March 1997 (C‑13/95, EU:C:1997:141, paragraph

18

). The criterion of taking over the majority of the staff has been discussed in legal literature. According to some authors, the transfer of employment relationships is the legal consequence of a transfer taking place, so it cannot also be a criterion for the transfer. See, in particular, Davies, P., ‘Taken to the cleaners? Contracting out of services yet again’, <span class="coj-italic">Industrial Law Journal</span>, No 26, 1997, p. 193; Laulom, S., ‘Les dialogues entre juge communautaire et juges nationaux en matière de transfert d’entreprise’, <span class="coj-italic">Droit social</span>, 1999, No 9-10, p. 821; and Viala, Y., ‘Le maintien des contrats de travail en cas de transfert d’entreprise en droit allemand’, <span class="coj-italic">Droit social</span>, No 2, 2005, p. 203. See, in that regard, Opinion of Advocate General Cosmas in Joint Cases Hernández Vidal and Others (C‑127/96, C‑229/96 and C‑74/97, EU:C:1998:426, points

78

to

85

, and in particular point 80); Opinion of Advocate General Poiares Maduro in Joint Cases Güney-Görres and Demir (C‑232/04 and C‑233/04, EU:C:2005:395, point

52

); and Opinion of Advocate General Trstenjak in Case CLECE (C‑463/09, EU:C:2010:636, points

62

to

66

).

<span class="coj-note">36</span> See judgments of 11 March 1997, Süzen (C‑13/95, EU:C:1997:141, paragraph

21

); of 10 December 1998, Hernández Vidal and Others (C‑127/96, C‑229/96 and C‑74/97, EU:C:1998:594, paragraph

32

); of 29 July 2010, UGT-FSP (C‑151/09, EU:C:2010:452, paragraph

29

); and of 20 January 2011, CLECE (C‑463/09, EU:C:2011:24, paragraph

36

). See also judgment of 24 January 2002, Temco (C‑51/00, EU:C:2002:48, paragraph

).

<span class="coj-note">37</span> Judgment of 6 March 2014, Amatori and Others (C‑458/12, EU:C:2014:124, paragraph

31

).

<span class="coj-note">38</span> Judgment of 6 March 2014, Amatori and Others (C‑458/12, EU:C:2014:124, paragraph

32

).

<span class="coj-note">39</span> See, in that regard, judgment of 7 February 1985, Botzen and Others (186/83, EU:C:1985:58, paragraph

16

).

<span class="coj-note">40</span> See judgment of 20 July 2017, Piscarreta Ricardo (C‑416/16, EU:C:2017:574, paragraph

44

).

<span class="coj-note">41</span> According to ISS Facility Services, a part-time (66%) contract could be concluded with Atalian and another part-time contract (34%) could be concluded with Cleaning Masters. Such an allocation would be based on the economic value of the lots awarded to the transferees by the City of Ghent for which ISS Facility Services was previously responsible.

<span class="coj-note">42</span> The third possibility put forward by the referring court, in the event that neither of the first two is accepted, consists of interpreting Article 3(1) of Directive 2001/23 as meaning that transferees’ rights and obligations arising from the contract of employment cannot be safeguarded, while the fourth interprets that provision as meaning that those rights and obligations cannot be safeguarded where it is impossible for the activity performed by the employee to be divided between the two transferees. See, in that regard, point 28 of this Opinion.

<span class="coj-note">43</span> Ms Govaerts stated at the hearing that, initially, she considered that, even if there had been a transfer of cleaning staff working on the sites corresponding to the various lots, the fact that she did not carry out the cleaning work in the City of Ghent areas of work which was the subject of the transfer, but was responsible for administrative and organisational tasks, should have meant that she was not part of the economic entity transferred. She added, however, that, after that transfer of staff, she was required, under Belgian law, to consider her contract to have been terminated, and could therefore no longer continue as an employee of ISS Facility Services.

<span class="coj-note">44</span> Judgment of 7 February 1985, Botzen and Others (186/83, EU:C:1985:58).

<span class="coj-note">45</span> Judgment of 7 February 1985 (186/83, EU:C:1985:58).

<span class="coj-note">46</span> Judgment of 7 February 1985, Botzen and Others (186/83, EU:C:1985:58, paragraphs

14

and

15

).

<span class="coj-note">47</span> Judgment of 7 February 1985 (186/83, EU:C:1985:58).

<span class="coj-note">48</span> See, to that effect, judgment of 9 March 2006, Werhof (C‑499/04, EU:C:2006:168, paragraph

31

).

<span class="coj-note">49</span> See judgment of 18 July 2013, Alemo-Herron and Others (C‑426/11, EU:C:2013:521, paragraph

25

).

<span class="coj-note">50</span>

Judgment of 6 September 2011, Scattolon (C‑108/10, EU:C:2011:542, paragraph

77

).

See, to that effect, the case-law cited in footnote 52 of this Opinion.

In particular, the Court has already held that ‘a change in the level of remuneration awarded to an employee is a substantial change in working conditions within the meaning of that provision … Where the contract of employment or the employment relationship is terminated because the transfer involves such a change, the employer must be regarded as having been responsible for the termination’. Judgment of 7 March 1996, Merckx and Neuhuys (C‑171/94 and C‑172/94, EU:C:1996:87, paragraph

38

). See also judgments of 11 November 2004, Delahaye (C‑425/02, EU:C:2004:706, paragraph

33

), and of 6 September 2011, Scattolon (C‑108/10, EU:C:2011:542, paragraphs

81

and

82

).

It should be recalled that, under Article 8 of Directive 2001/23, that directive ‘does not affect the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees or to promote or permit collective agreements or agreements between social partners more favourable to employees’.

For example, so far as concerns the distance between the headquarters of the two transferees or the synchronisation of the employee’s annual leave.