22.10.2011

Official Journal of the European Union

C 311/10

(Case C-108/10) (<span class="super">1</span>)

(Social policy - Directive 77/187/EEC - Maintenance of the rights of workers in the event of a transfer of an undertaking - Meaning of ‘undertaking’ and ‘transfer’ - Transferor and transferee governed by public law - Application, from the date of transfer, of the collective agreement in force with the transferee - Salary treatment - Whether length of service completed with the transferor to be taken into account)

2011/C 311/12

Language of the case: Italian

Referring court

Tribunale Ordinario di Venezia

Parties to the main proceedings

Applicant: Ivana Scattolon

Defendant: Ministero dell’Istruzione, dell’Università e della Ricerca

Re:

Reference for a preliminary ruling — Tribunale Ordinario di Venezia — Scope of Council Directives 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 businesses (OJ 1977 L 61, p. 26) and 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16) — Interpretation of Article 3(1) of Directive 77/187/EEC — Transfer of local authority cleaning staff from a local authority to the State — Safeguarding of rights, including length of service with the local authority

Operative part of the judgment

1.The takeover by a public authority of a Member State of staff employed by another public authority and entrusted with the supply to schools of auxiliary services including, in particular, tasks of maintenance and administrative assistance constitutes a transfer of an undertaking falling within 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 businesses, where that staff consists in a structured group of employees who are protected as workers by virtue of the domestic law of that Member State.

2.Where a transfer within the meaning of Directive 77/187 leads to the immediate application to the transferred workers of the collective agreement in force with the transferee, and where the conditions for remuneration are linked in particular to length of service, Article 3 of that directive precludes the transferred workers from suffering, in comparison with their situation immediately before the transfer, a substantial loss of salary by reason of the fact that their length of service with the transferor, equivalent to that completed by workers in the service of the transferee, is not taken into account when determining their starting salary position with the latter. It is for the national court to examine whether, at the time of the transfer at issue in the main proceedings, there was such a loss of salary.

Language of the case: Italian

(1) OJ C 134, 22.5.2010.