ASKLEPIOS KLINIKEN JUDGMENT OF THE COURT (Third Chamber)

27 April 2017 (*1)

In Joined Cases C‑680/15 and C‑681/15,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Bundesarbeitsgericht (Federal Labour Court, Germany), made by decisions of 17 June 2015, received at the Court on 17 December 2015, in the proceedings

Ivan Felja (C‑680/15)

Vittoria Graf (C‑681/15),

THE COURT (Third Chamber),

composed of L. Bay Larsen, President of the Chamber, M. Vilaras, J. Malenovský (Rapporteur), M. Safjan and D. Šváby, Judges,

Advocate General: Y. Bot,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 23 November 2016,

after considering the observations submitted on behalf of:

—Asklepios Kliniken Langen-Seligenstadt GmbH and Asklepios Dienstleistungsgesellschaft mbH, by A. Dziuba and W. Lipinski, Rechtsanwälte,

—Ivan Felja and Vittoria Graf, by R. Buschmann, legal representative,

—the Kingdom of Norway, by C. Anker, C. Rydning and P. Wennerås, acting as Agents,

—the European Commission, by T. Maxian Rusche and M. Kellerbauer, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 19 January 2017,

gives the following

1These requests for a preliminary ruling concern the interpretation of Article 3 of Council Directive 2001/23/EC 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) and Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2Those requests have been made in proceedings between Mr Ivan Felja and Ms Vittoria Graf (‘the workers’), on the one hand, and Asklepios Kliniken Langen-Seligenstadt GmbH and Asklepios Dienstleistungsgesellschaft mbH (‘Asklepios’), on the other hand, concerning the application of a collective labour agreement.

Legal context

EU law

3Recitals 7 to 9 of Directive 2001/23 state:

(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.’

4Article 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.’

5Under 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)];

…’

6Article 4 of Directive 2001/23 provides:

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

(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:

(a) 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

(b) 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:

‘1. A description of the project, including in particular:

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

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

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

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

4. 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

9Recitals 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

10Article 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.’

11Article 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:

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

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

(c) deliberate destruction or taking of eggs from the wild;

(d) 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

must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.

Gratsias

Passer

Smulders

Delivered in open court in Luxembourg on 6 March 2025.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

Asklepios contends that Directive 2001/23 and Article 16 of the Charter preclude the legal consequence, provided for in national law, whereby the rules of the public service collective agreements to which the contract of employment refers apply dynamically. It argues that, after the transfer of the workers concerned to another employer, those agreements should be applied as they originally stood (statically), meaning that only the terms of employment agreed in the contract of employment concluded with the transferor employer, based on the collective agreements referred to by that contract may be relied on against the transferee employer.

13The lower courts upheld the actions brought by the workers and Asklepios appealed to the referring court on a point of law.

In those circumstances, the Bundesarbeitsgericht (Federal Labour Court, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Does Article 3 of Directive [2001/23] preclude a provision of national law which provides that, in the event of a transfer of an undertaking or business, all conditions of employment agreed between the transferor and the employee, individually and in the exercise of their freedom of contract, in the contract of employment transfer to the transferee unaltered, as if he had himself agreed them in an individual contract with the employee, where national law provides for both consensual and unilateral adjustments by the transferee?

(a) Does this apply also where neither the transferor nor the transferee is party to a collective agreement or is affiliated to such a party, that is, where, even prior to the transfer of the undertaking or business, the provisions in the collective agreement would not have been applicable to the employment relationship with the transferor in the absence of the term referring to them in the agreement made, in the exercise of freedom of contract, in the contract of employment?

(b) if [Question 1(a)] is to be answered in the affirmative: does this apply also if the transferor and the transferee are undertakings within the same group?

(2) Does Article 16 of [the Charter] preclude a national provision enacted to implement Directive [77/187] or Directive [2001/23] which provides that, in the event of a transfer of an undertaking or a business, the transferee is bound by the conditions of employment agreed individually and in the exercise of their freedom of contract by the transferor with the employee as if he had agreed them himself, even if these conditions incorporate certain provisions of a collective agreement, which would not otherwise apply to the employment contract, into the employment contract dynamically, in so far as national law provides for both consensual and unilateral adjustments by the transferee?’

Consideration of the questions referred

15By its questions, which it is appropriate to answer together, the referring court asks essentially whether Article 3 of Directive 2001/23, read together with Article 16 of the Charter, must be interpreted as meaning that, in the case of a transfer of a business, the continued observance of the rights and obligations of the transferor arising from a contract of employment, extends to the clause which the transferor and the worker agreed pursuant to the principle of freedom of contract, pursuant to which their employment relationship is governed not only by the collective agreement in force on the date of the transfer, but also by collective agreements subsequent to the transfer supplementing it, modifying it or replacing it, if national law provides for the possibility for the transferee to make adjustments, which are both consensual and unilateral.

16From the outset, it must be observed that, by means of contractual clauses, a contract of employment may refer to other legal instruments, in particular, collective labour agreements. Such clauses may, like ‘static’ referral clauses, make reference solely to rights and obligations laid down by the text of the collective agreement in force on the date of the transfer of the business, or, like the ‘dynamic’ referral clauses at issue in the main proceedings, may also refer to future modifications to the agreements, which involve changes to those rights and obligations.

17In that connection, the Court has held, in the case of a ‘static’ contractual clause and in the context of Directive 77/187, that the latter does not in any way indicate that the EU legislature intended the transferee to be bound by collective labour agreements other than the one in force at the time of the transfer and, consequently, that the terms and conditions be subsequently amended through the application of a new collective labour agreement concluded after the transfer (see, to that effect, judgment of 9 March 2006, Werhof, C‑499/04, EU:C:2006:168, paragraph 29).

18The objective of Directive 77/187 was merely to safeguard the rights and obligations of employees in force on the day of the transfer. On the other hand, the Directive was not intended to protect mere expectations to rights and, therefore, hypothetical advantages flowing from future changes to collective agreements (see, to that effect, judgment of 9 March 2006, Werhof, C‑499/04, EU:C:2006:168, paragraph 29).

19While it follows from the case-law of the Court, referred to in the preceding paragraph of the present judgment, that Article 3 of Directive 2001/23 must be interpreted as meaning that it does not require a ‘static’ clause to be treated as ‘dynamic’, the Court also observed that a contract is characterised by the principle of freedom of the parties to arrange their own affairs, according to which, in particular, parties are free to enter into obligations with each other (judgment of 9 March 2006, Werhof, C‑499/04, EU:C:2006:168, paragraph 23).

20Nothing in the wording of Directive 2001/23 and, in particular, Article 3 thereof, indicates that the EU legislature intended to derogate from that principle. It follows that Directive 2001/23 and, in particular Article 3 thereof, should not be read as intended to prevent, a ‘dynamic’ clause from producing its effects under all circumstances.

21Therefore, if the transferor and the employees have freely consented to a ‘dynamic’ contractual clause and if it is in force on the date of transfer, Directive 2001/23 and in particular Article 3 thereof, must be interpreted as providing, in principle, that that obligation arising from an employment contract is transferred to the transferee.

However, the Court has stated, in the case of a ‘dynamic’ contractual clause, that Directive 2001/23 does not aim solely to 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. More particularly, it makes clear that the transferee must be in a position to make the adjustments and changes necessary to carry on its operations (see, to that effect, judgments of 18 July 2013, Alemo-Herron and Others, C‑426/11, EU:C:2013:521, paragraph 25 and of 11 September 2014, Österreichischer Gewerkschaftsbund, C‑328/13, EU:C:2014:2197, paragraph 29).

23More specifically, Article 3 of Directive 2001/23, read in the light of the freedom to conduct a business, requires that the transferee must be able to assert its interests effectively in a contractual process to which it is party and to negotiate the aspects determining changes in the working conditions of its employees with a view to its future economic activity (see, to that effect, judgment of 18 July 2013, Alemo-Herron and Others, C‑426/11, EU:C:2013:521, paragraph 33).

24In the present case, it is clear from the decision to refer and, in particular, from the wording of the questions referred for a preliminary ruling that the national legislation at issue in the main proceedings provides for the possibility, after the transfer, for the transferee to adjust the working conditions existing at the date of the transfer, either consensually or unilaterally.

25Thus, it must be held that the national legislation at issue in the main proceedings satisfies the requirements deriving from the case-law mentioned in paragraph 23 of the present judgment.

26Given that that case-law takes into consideration Article 16 of the Charter, there is no longer any need to examine further the compatibility of the national legislation at issue in the main proceedings with that provision.

27While Asklepios appears to challenge the existence or effectiveness of the possibilities to make adjustment concerned. However, it suffices to state, in that regard, that it is not for the Court of Justice to give a ruling on that point.

28It is the referring court alone which has jurisdiction to assess the facts and interpret the national legislation (see, to that effect, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 88).

29Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 3 of Directive 2001/23, read together with Article 16 of the Charter, must be interpreted as meaning that, in the case of a transfer of a business, the continued observance of the rights and obligations of the transferor arising from a contract of employment, extends to the clause which the transferor and the worker agreed pursuant to the principle of freedom of contract, pursuant to which their employment relationship is governed not only by the collective agreement in force on the date of the transfer, but also by agreements subsequent to the transfer and which supplement it, amend it or replace it, if the national law provides for the possibility for the transferee to make adjustments both consensually and unilaterally.

Costs

30Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Article 3 of Council Directive 2001/23/EC 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 and Article 16 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in the case of a transfer of a business, the continued observance of the rights and obligations of the transferor arising from a contract of employment, extends to the clause which the transferor and the worker agreed pursuant to the principle of freedom of contract, pursuant to which their employment relationship is governed not only by the collective agreement in force on the date of the transfer, but also by agreements subsequent to the transfer and which supplement it, amend it or replace it, if the national law provides for the possibility for the transferee to make adjustments both consensually and unilaterally.

[Signatures]

* * *

(*1) Language of the cases: German.