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Case C-688/13: Order of the Court (Sixth Chamber) of 28 January 2015 (request for a preliminary ruling from the Juzgado de lo Mercantil No 3 de Barcelona — Spain) — proceedings brought by Gimnasio Deportivo San Andrés SL, in liquidation (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Transfer of an undertaking — Safeguarding of employees’ rights — Interpretation of Directive 2001/23/EC — Transferor the subject of insolvency proceedings — Guarantee that the transferee is not to be liable for certain debts of the undertaking transferred)
ECLI:EU:UNKNOWN:62013CB0688
62013CB0688
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4.5.2015
Official Journal of the European Union
C 146/9
(Case C-688/13) (<span class="super">1</span>)
((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Transfer of an undertaking - Safeguarding of employees’ rights - Interpretation of Directive 2001/23/EC - Transferor the subject of insolvency proceedings - Guarantee that the transferee is not to be liable for certain debts of the undertaking transferred))
(2015/C 146/14)
Language of the case: Spanish
Referring court
Parties to the main proceedings
Applicant: Gimnasio Deportivo San Andrés SL, in liquidation
Intervening parties: Tesorería General de la Seguridad Social (TGSS), Fondo de Garantía Salarial
Operative part of the order
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 meaning that:
where, in the context of the transfer of an undertaking, the transferor is the subject of insolvency proceedings which are under the supervision of a competent public authority and where the Member State concerned has chosen to make use of Article 5(2) of Directive 2001/23, that provision does not preclude that Member State from providing, or permitting, that charges payable by the transferor, on the date of the transfer or the opening of the insolvency proceedings, as a result of contracts of employment or employment relationships — including charges relating to the statutory social security system — are not to be transferred to the transferee, provided that such proceedings ensure a level of protection for employees which is at least equivalent to that established by Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, but nor is that Member State prevented from providing that such charges are to be borne by the transferee, even where the transferor is insolvent,
subject to Article 3(4)(b) of that directive, Directive 2001/23 does not lay down any obligations relating to the charges payable by the transferor as a result of contracts of employment or employment relationships which have come to an end before the date of transfer, but nor does it preclude national legislation under which such charges may be transferred to the transferee.
(<span class="super">1</span>) OJ C 78, 15.3.2014.