18 November 2020 (*1)

(Reference for a preliminary ruling – Intellectual property – Rights related to copyright – Directive 92/100/EEC – Article 8(2) – Directive 2006/115/EC – Article 8(2) – Communication to the public of an audiovisual work incorporating a phonogram or a reproduction of a phonogram – Single equitable remuneration)

In Case C‑147/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 13 February 2019, received at the Court on 20 February 2019, in the proceedings

Atresmedia Corporación de Medios de Comunicación SA

Asociación de Gestión de Derechos Intelectuales (AGEDI),

Artistas Intérpretes o Ejecutantes, Sociedad de Gestión de España (AIE),

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, M. Ilešič (Rapporteur), E. Juhász, C. Lycourgos and I. Jarukaitis, Judges,

Advocate General: E. Tanchev,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 30 January 2020,

after considering the observations submitted on behalf of:

–Atresmedia Corporación de Medios de Comunicación SA, by C. Aguilar Fernández, L.J. Vidal Calvo and M. González Gordon, abogados,

–Asociación de Gestión de Derechos Intelectuales (AGEDI), by J.J. Marín López, abogado,

–Artistas Intérpretes o Ejecutantes, Sociedad de Gestión de España (AIE), by A. López Sánchez, abogado,

–the Spanish Government, initially by A. Rubio González, and subsequently by S. Jiménez García, acting as Agents,

–the European Commission, by É. Gippini Fournier and J. Samnadda, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 July 2020,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 8(2) of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61) and of Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28).

2The request has been made in proceedings between, on the one hand, Atresmedia Corporación de Medios de Comunicación SA (‘Atresmedia’), an undertaking which owns a number of television channels, and, on the other, the Asociación de Gestión de Derechos Intelectuales (AGEDI) and Artistas Intérpretes o Ejecutantes, Sociedad de Gestión de España (AIE) – entities that manage, respectively, the intellectual property rights of phonogram producers and such rights of performers – concerning the payment by Atresmedia of a single equitable remuneration for the broadcasting, on television channels operated by it, of audiovisual works incorporating phonograms.

Legal context

EU law

The seventh and 10th recitals of Directive 92/100 stated:

The seventh and 10th recitals of Directive 92/100 stated:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

A description of the project, including in particular:

a description of the physical characteristics of the whole project and, where relevant, of demolition works;

a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

A description of the aspects of the environment likely to be significantly affected by the project.

A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

the expected residues and emissions and the production of waste, where relevant;

the use of natural resources, in particular soil, land, water and biodiversity.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ (COM(2011) 244 final)

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

all forms of deliberate capture or killing of specimens of these species in the wild;

deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

deliberate destruction or taking of eggs from the wild;

deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

‘Whereas the creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work, and the investments required particularly for the production of phonograms and films are especially high and risky; whereas the possibility for securing that income and recouping that investment can only effectively be guaranteed through adequate legal protection of the rightholders concerned;

…

Whereas the legislation of the Member States should be approximated in such a way so as not to conflict with the international conventions on which many Member States’ copyright and related rights laws are based’.

Article 8 of that directive, entitled ‘Broadcasting and communication to the public’, provided in paragraph 2 thereof:

‘Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. Member States may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.’

Directive 92/100 was codified and repealed by Directive 2006/115.

Directive 2001/29/EC

Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), entitled ‘Reproduction right’, provides:

‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a)for authors, of their works;

(b)for performers, of fixations of their performances;

(c)for phonogram producers, of their phonograms;

…’

Recitals 5 and 7 of Directive 2006/115 state:

‘(5) The creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work, and the investments required particularly for the production of phonograms and films are especially high and risky. The possibility of securing that income and recouping that investment can be effectively guaranteed only through adequate legal protection of the rightholders concerned.

…

(7) The legislation of the Member States should be approximated in such a way as not to conflict with the international conventions on which the copyright and related rights laws of many Member States are based.’

The wording of Article 8(2) of Directive 2006/115 is identical to that of Article 8(2) of Directive 92/100.

Spanish law

Article 108(4) of Real Decreto Legislativo 1/1996, por el que se aprueba el texto refundido de la Ley de Propiedad Intelectual, regularizando, aclarando y armonizando las disposiciones legales vigentes sobre la materia (Royal Legislative Decree 1/1996, approving the amended text of the Intellectual Property Law, which sets out, clarifies and harmonises the legislative provisions in force in that area) of 12 April 1996 (BOE No 97, 22 April 1996, p. 14369), in the version applicable to the dispute in the main proceedings (‘the LPI’), provides:

‘Users of a phonogram published for commercial purposes or of a reproduction of that phonogram that is used for any form of communication to the public shall have an obligation to pay a single equitable remuneration to the performers and phonogram producers, between whom that remuneration shall be shared. In the absence of agreement between them as to how that remuneration is to be shared, this shall be in equal parts …’

Article 114(1) of the LPI provides:

‘“Phonogram” means any exclusively aural fixation of the performance of a work or of other sounds.’

Article 116(2) of the LPI, which appears under the title governing the rights of phonogram producers, contains identical wording to that of Article 108(4) thereof.

The dispute in the main proceedings and the questions referred for a preliminary ruling

On 29 July 2010, AGEDI and AIE brought an action before the Juzgado de lo Mercantil de Madrid No 4 Bis (Commercial Court, Madrid, Spain) against Atresmedia seeking payment of compensation in respect of acts of communication to the public of phonograms published for commercial purposes, or reproductions of those phonograms, carried out between 1 June 2003 and 31 December 2009 via the television channels operated by Atresmedia, and for the unauthorised reproduction of phonograms in connection with those acts of communication to the public.

Since that action was declared unfounded by the Juzgado de lo Mercantil de Madrid (Commercial Court, Madrid), AGEDI and AIE brought an appeal against that court’s judgment before the Audiencia Provincial de Madrid (Provincial Court, Madrid, Spain), which set aside that judgment and upheld their application in its entirety.

Atresmedia brought an appeal on a point of law before the referring court against the judgment of the Audiencia Provincial de Madrid (Provincial Court, Madrid).

The referring court notes that the appeal relates exclusively to whether the communication to the public of audiovisual works carried out by Atresmedia via its television channels gives rise to the right to the single equitable remuneration provided for in Spanish law in Article 108(4) and Article 116(2) of the LPI, which correspond, in EU law, to Article 8(2) of Directive 92/100 and to Article 8(2) of Directive 2006/115. In particular, that court states that it falls to it to determine whether, from the moment when a phonogram published for commercial purposes, or a reproduction of that phonogram, has been incorporated or ‘synchronised’ in an audiovisual recording containing the fixation of an audiovisual work, the performers and phonogram producers concerned may demand that single equitable remuneration.

The referring court adds that since AGEDI and AIE claim compensation from Atresmedia in respect of the communication to the public of audiovisual works carried out between 1 June 2003 and 31 December 2009, both Directive 92/100 and Directive 2006/115 are applicable rationae temporis to the main proceedings.

In those circumstances the Tribunal Supremo (Supreme Court, Spain) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)Does the concept of the “reproduction of a phonogram published for commercial purposes” referred to in Article 8(2) of Directives 92/100 and 2006/115 include the reproduction of a phonogram published for commercial purposes in an audiovisual recording containing the fixation of an audiovisual work?

(2)Does the assumption that, on the basis of a reasonable commercial decision, buses are no longer of major importance for the value of the business in the case of a temporary award of services owing to their age and more stringent technical requirements (emission values, low-floor vehicles) provide justification for the [Court] to derogate from its decision of 25 January 2001 (C‑172/99) to the effect that, under such circumstances, the taking-over of a significant proportion of the staff can also result in [Directive 77/187] being applicable?

In the event that the answer to the previous question is in the affirmative, is a television broadcasting organisation which, for any type of communication to the public, uses an audiovisual recording containing the fixation of a cinematographic or audiovisual work in which a phonogram published for commercial purposes has been reproduced, under an obligation to pay the single equitable remuneration provided for in Article 8(2) of the aforementioned directives?

Consideration of the questions referred

24It should be noted, as a preliminary point, that it is common ground in the main proceedings that phonograms published for commercial purposes, or reproductions of those phonograms, were incorporated in audiovisual recordings containing the fixation of audiovisual works, those audiovisual recordings being subsequently communicated to the public via television channels operated by Atresmedia.

25In that regard, the referring court’s questions do not concern the reproduction of such phonograms when they are being incorporated in those audiovisual recordings. That court makes clear that such an incorporation was carried out with the authorisation of the rightholders concerned and in return for remuneration paid to them in accordance with the applicable contractual arrangements.

26The referring court nevertheless seeks to ascertain whether the performers and phonogram producers concerned must receive the single equitable remuneration provided for in Article 8(2) of Directive 92/100 and Article 8(2) of Directive 2006/115, where such audiovisual recordings are subsequently communicated to the public.

27In those circumstances, it must be found that, by its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 8(2) of Directive 92/100 and Article 8(2) of Directive 2006/115 must be interpreted as meaning that the single equitable remuneration referred to in those provisions must be paid by the user where he or she makes a communication to the public of an audiovisual recording containing the fixation of an audiovisual work in which a phonogram or a reproduction of that phonogram has been incorporated.

28It should be noted that, according to Article 8(2) of Directive 92/100 and Article 8(2) of Directive 2006/115, the Member States are to provide a right in order to ensure that a single equitable remuneration is paid by the user if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public.

29As the Court has already pointed out, that remuneration represents the consideration for the use of a commercial phonogram during such a broadcast or communication to the public (see, to that effect, judgment of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 37, and of 14 July 2005, Lagardère Active Broadcast, C‑192/04, EU:C:2005:475, paragraph 50).

30Those provisions confer on the persons covered by them a right that is compensatory in nature, triggered by the broadcasting or communication to the public of the performance of the work fixed on a phonogram published for commercial purposes, or on a reproduction of such a phonogram (see, to that effect, judgment of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 54 and the case-law cited).

31In those circumstances, it is necessary to determine whether an audiovisual recording containing the fixation of an audiovisual work, such as that referred to in paragraph 27 above, must be classified as a ‘phonogram’ or ‘reproduction of that phonogram’ within the meaning of Article 8(2) of Directive 92/100 or Article 8(2) of Directive 2006/115.

32In the first place, it should be noted that neither Directives 92/100 and 2006/115 nor the other EU directives in the area of copyright law define the concept of ‘phonogram’ or contain an express reference to the law of the Member States for the purpose of determining the scope of that concept.

33According to settled case-law, the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union; that interpretation must take into account the wording of that provision and its context, and in particular its origins and international law, as well as the objectives pursued by the rules of which it forms part (judgment of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 46 and the case-law cited).

34In that regard, it should be borne in mind that the provisions of Directive 92/100 and Directive 2006/115 must be interpreted in the light of international law, and in particular of the treaty law which those instruments are specifically intended to implement, as is expressly referred to in the 10th recital of Directive 92/100 and in recital 7 of Directive 2006/115 (see, to that effect, judgment of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 51 and the case-law cited).

35As the Advocate General observed in point 36 of his Opinion, it is apparent from the Explanatory Memorandum to the Proposal for a Council Directive on rental right, lending right, and on certain rights related to copyright (COM(90) 586 final), which preceded the adoption of Directive 92/100, that, for the purposes of that directive, it was necessary to refer to the concepts appearing, inter alia, in the Rome Convention, since the terms used in that directive were fundamental in the area of copyright and related rights and their meaning had already been harmonised to a considerable extent indirectly by treaty law.

36Admittedly, the provisions of that convention do not form part of the EU legal order, since the European Union is not a party to that convention. However, the Court has already pointed out that the Rome Convention has indirect effects within the European Union (see, to that effect, judgment of 15 March 2012, SCF, C‑135/10, EU:C:2012:140).

37According to the wording of Article 3(b) of the Rome Convention, the concept of ‘phonogram’ is defined as any ‘exclusively aural’ fixation of sounds of a performance or of other sounds. It follows that the fixation of images and sounds cannot come within that concept, since such a fixation cannot be described as ‘exclusively aural’.

38It should also be pointed out that the mere fact that one economic entity takes over the economic activity of another economic entity is not a ground for concluding that the latter has retained its identity. The identity of such an entity cannot be reduced to the activity entrusted to it. Its identity emerges from several indissociable factors, such as its workforce, its management staff, the way in which its work is organised, its operating methods or indeed, where appropriate, the operating resources available to it (judgments of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 41, and of 20 July 2017, Piscarreta Ricardo, C‑416/16, EU:C:2017:574, paragraph 43).

39It follows from the foregoing that the classification as a transfer presupposes a number of factual findings, that question having to be assessed in actual fact by the national court in the light of the criteria laid down by the Court (see, to that effect, judgment of 7 August 2018, Colino Siguënza, C‑472/16, EU:C:2018:646, paragraph 45), as well as the objectives pursued by Directive 2001/23, as set out, inter alia, in recital 3 thereof.

40In that context, the referring court raises more specifically the question whether, in the present case, the approach adopted in the judgment of 25 January 2001, Liikenne (C‑172/99, EU:C:2001:59), in which a contract for the provision of a bus transport service covering 7 regional routes for a period of 3 years was at issue, is applicable in the present case. The new operator had purchased the work uniforms of some of the drivers who had transferred to it and, pending delivery of the vehicles ordered, had merely leased two buses from the previous operator for a few months.

41When asked whether there had been a transfer of an undertaking within the meaning of Article 1(1) of Directive 77/187, the Court first of all pointed out, in paragraph 39 of the judgment of 25 January 2001, Liikenne (C‑172/99, EU:C:2001:59), that bus transport cannot be regarded as an activity based essentially on manpower, as it requires substantial plant and equipment. The Court added that, accordingly, the fact that the tangible assets used for operating the bus routes were not transferred from the old to the new contractor therefore constitutes a circumstance to be taken into account for the purposes of classification as a transfer of an undertaking. It then held, in paragraph 42 of that judgment, that, since the tangible assets contribute significantly to the performance of that activity, the absence of a transfer to a significant extent from the old to the new contractor of such assets, which are necessary for the proper functioning of the entity concerned, must lead to the conclusion that the entity does not retain its identity. Finally, the Court concluded, in paragraph 43 of that judgment, that, in a situation such as that in the main proceedings, Directive 77/187 does not apply in the absence of a transfer of significant tangible assets from the old to the new contractor.

42It should, however, be noted that, since in paragraph 39 of the judgment of 25 January 2001, Liikenne (C‑172/99, EU:C:2001:59), the Court was careful to point out that the fact that the tangible assets used for operating the bus routes were not transferred from the old to the new contractor constitutes a circumstance to be taken into account, it cannot be inferred from that point that the takeover of the buses must be regarded in the abstract as the sole determining factor of whether an undertaking whose activity consists in the public transport of passengers by bus has been transferred.

43Therefore, in order to determine whether the fact that the operating resources, namely the buses, were not transferred precludes the classification as a transfer of an undertaking, the referring court must take account of the particular circumstances of the case before it.

44In this respect, it is apparent from the order for reference that compliance with the new technical and environmental standards required by the contracting authority as regards operating resources did not enable, from both an economic and legal point of view, the successful tenderer to take over the operating resources of the undertaking previously holding the contract for the public transport services at issue in the main proceedings. It would not have been sensible, from an economic point of view, for a new operator to take over an existing bus fleet consisting of vehicles which, having reached the end of the period of operation authorised and not complying with the constraints imposed by the contracting authority, could not be operated.

45In other words, the decision of the new operator not to take over that undertaking’s operating resources was dictated by external constraints, whereas, as the Advocate General observed in point 54 of her Opinion, nothing in the statement of facts at issue in the case which gave rise to the judgment of 25 January 2001, Liikenne (C‑172/99, EU:C:2001:59) indicates that that was the situation in that case.

46It is also clear from the information provided by the referring court, summarised in paragraph 16 above, that, in view of the technical and environmental standards required by the contracting authority, the undertaking which formerly held the contract for the public transport services at issue in the main proceedings would itself have been forced, if it had submitted a tender for that contract and had been awarded it, to replace its operating resources in the near future.

47In that context, the fact that there is no transfer of operating resources, in so far as it results from legal, environmental or technical constraints, does not therefore necessarily preclude the taking over of the activity concerned from being classified as a ‘transfer of an undertaking’ within the meaning of Article 1(1) of Directive 2001/23.

48It is therefore for the referring court to determine whether other factual circumstances among those referred to in paragraphs 24 to 26 above support the conclusion that the identity of the entity concerned has been retained and, therefore, that there has been a transfer of an undertaking.

49In this respect, it should be pointed out, in the first place, as the Advocate General noted in point 40 of her Opinion, that the order for reference shows that the new operator provides a bus transport service which is essentially similar to that provided by the previous undertaking; that service has not been interrupted and has probably been operated on many of the same routes for many of the same passengers.

50In the second place, the referring court points out that the presence of experienced bus drivers in a rural area such as the district of Oberspreewald-Lausitz is crucial for the purpose of ensuring the quality of the public transport service concerned. It notes, in particular, that they must have sufficient knowledge of routes, timetables in the area served and fare conditions, as well as of other regional bus routes, railway routes and existing connections, in order to be able not only to sell tickets but also to provide passengers with the information they need to complete the planned journey.