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Case C-664/17: Judgment of the Court (Third Chamber) of 13 June 2019 (request for a preliminary ruling from the Areios Pagos — Greece) — Ellinika Nafpigeia AE v Panagiotis Anagnostopoulos and Others (Reference for a preliminary ruling — Social policy — Directive 2001/23/EC — Scope — Transfer of part of an undertaking — Safeguarding of employees’ rights — Concept of ‘transfer’ — Concept of ‘economic entity’ — Transfer of part of the economic activity of a parent company to a newly created subsidiary — Identity — Autonomy — Pursuit of an economic activity — Criterion requiring stability of the pursuit of an economic activity — Recourse to factors of production of third parties — Intention to liquidate the entity transferred)
ECLI:EU:UNKNOWN:62017CA0664
62017CA0664
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5.8.2019
Official Journal of the European Union
C 263/7
(Case C-664/17) (<span class="super note-tag">1</span>)
(Reference for a preliminary ruling - Social policy - Directive 2001/23/EC - Scope - Transfer of part of an undertaking - Safeguarding of employees’ rights - Concept of ‘transfer’ - Concept of ‘economic entity’ - Transfer of part of the economic activity of a parent company to a newly created subsidiary - Identity - Autonomy - Pursuit of an economic activity - Criterion requiring stability of the pursuit of an economic activity - Recourse to factors of production of third parties - Intention to liquidate the entity transferred)
(2019/C 263/08)
Language of the case: Greek
Referring court
Parties to the main proceedings
Appellant: Ellinika Nafpigeia AE
Respondents: Panagiotis Anagnostopoulos and Others
Interveners: Syllogos Ergazomenon Nafpigeion Skaramagka, I TRIAINA, Panellinia Omospondia Ergatoÿpallilon Metallou (POEM), Geniki Synomospondia Ergaton Ellados (GSEE)
Operative part of the judgment
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, in particular Article 1(1)(a) and (b) thereof, must be interpreted as applying to the transfer of a production unit where, first, the transferor, the transferee, or both those persons jointly, act with a view to the transferee pursuing the economic activity engaged in by the transferor, but also with a view to the transferee itself subsequently ceasing to exist, in the context of a liquidation, and second, the unit at issue, lacking the ability to attain its economic object without having recourse to factors of production from third parties, is not totally autonomous, provided that — matters which are for the referring court to establish — first, the general principle of EU law requiring the transferor and transferee not to seek to obtain fraudulently or wrongfully the advantages that they might derive from Directive 2001/23 is observed and, second, the production unit concerned has sufficient safeguards ensuring it access to the factors of production of a third party so as not to be dependent upon the economic choices unilaterally made by the latter.
(<span class="note">1</span>) OJ C 32, 29.1.2018.
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Language of the case: Greek