Judgment of the Court (Fourth Chamber) of 27 February 2020 (request for a preliminary ruling from the Arbeitsgericht Cottbus — Kammern Senftenberg — Germany) — Reiner Grafe, Jürgen Pohle v Südbrandenburger Nahverkehrs GmbH, OSL Bus GmbH

(Case C-298/18) (1)

(Reference for a preliminary ruling - Directive 2001/23/EC - Article 1(1) - Transfer of an undertaking - Safeguarding of employees’ rights - Operation of bus routes - Re-employment of the staff - Operating resources not taken over - Grounds)

(2020/C 137/06)

Language of the case: German

Referring court

Arbeitsgericht Cottbus — Kammern Senftenberg

Parties to the main proceedings

Applicants: Reiner Grafe, Jürgen Pohle

Defendants: Südbrandenburger Nahverkehrs GmbH, OSL Bus GmbH

Operative part of the judgment

Article 1(1) of 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, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking-over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

---

(1)  OJ C 276, 6.8.2018.