Case
The Directive has recently been amended in the light of the case-law of the Court inter alia. The amendments are embodied in Council Directive 98/50/EC of
Article 1(1) as amended by Directive 98/50 reads as follows:
The same provision continues:
Approved by Real Decreto Legislativo (Royal Legislative Decree) No 1/1995 of 24 March, Boletín Oficial del Estado (Official Gazette, hereinafter
During the oral procedure, Prudencia and Maria Gómez Pérez stated that they had worked for Hernández Vidal since 1983 and 1987 respectively and that a new contract had been concluded with that company in 1992.
During the oral procedure Prudencia and María Gómez Pérez stated that, after taking over the cleaning of its premises itself, Hernández Vidal had engaged new staff, who had been shown their duties by the plaintiffs.
As Hernández points out (point II.3 of its written observations), under Spanish law, the transfer of the business of cleaning buildings and premises is subject to special provisions that arc highly favourable to employees. The provisions in question are set out in Article 13 of the Ordenanza Laboral para Limpieza de Edificios y Locales (Order relating to workers employed in the cleaning of buildings and premises), approved by administrative order of
Article 13 of the Ordenanza provides that, when an undertaking in which cleaning services have been provided by a contractor takes over those services itself, it is not obliged to keep on the staff who provided the services on behalf of the contractor if it employs its own staff to do the cleaning. It must, however, do so if it wishes to employ new staff to do the cleaning. Article 13 also provides that employees of a contractor providing cleaning services, whose employment relationship with that contractor is broken when the contract expires, arc to be taken on by the new contractor. Article 37 of the Convenio Colectivo provides that, on the expiry of a contract for cleaning services, staff employed by the outgoing contractor must be taken on by the new contractor, who takes over all the rights and obligations of his predecessor.
Article 6(1) of the Texto Final del XIV Convenio Colectivo de
On the subject of the expiry of contracts for works or services, Article 42 of the Estatuto provides that
Judgment of the Tribunal Supremo of
The national court explains that the legal protection pre-scribed for cases where one undertaking succeeds another is not available where what occurs is that a different undertaking is made responsible for carrying out an activity, without any transfer of assets.
The court refers, in particular, to Case
Cited in footnote 14 above.
Article 2 of the site security maintenance contract of
Gesetz über die Anwendung unmittelbaren Zwanges und die Ausübung besonderer Befugnisse durch Soldaten der Bundeswehr und zivile Wachpersonen, Bundesgesetzblatt (Official Gazette), I, p. 796.
This judgment has already been mentioned in footnote 2.
This point was made by Advocate General Jacobs in point 45 of his Opinion in Case
The concept of an
Of an undertaking's photocopiers, lifts and electrical appliances, for example.
See Case
See Süzen, cited in footnote 2, paragraph 10; Case
See, for example, Süzen, paragraph 12, and Merckx and leuhuys, paragraph 28.
See, for example, Merckx and Netthuys and Süzen, cited above in footnotes 23 and 2 respectively.
For example, in Case
Point 13.
See, for example, Case
It is interesting to note that Article 1(1)(b) of Directive 98/50 provides that there is a transfer within the meaning of that Directive
For example, use of the client's electricity, heating and refrigerators on the premises where the cleaning or maintenance, etc. is carried out.
Sitzen, paragraph 21.
In this connection, see Vivien Shrubsall,
Paragraph 18.
Sec also
Paragraph 15.
In paragraph 17 of its judgment in Schmidt, the Court refers to its judgments ín Spijkers, paragraph 11, and Redmond Stichting, paragraph 23, according to which
Paragraph 16.
Paragraph 17. See also Schmidt and Merckx and Neubnys, cited in footnotes 14 and 23 above, paragraphs 16 and 21 respectively.
Paragraph 18.
Paragraph 20. See also Spijkerit cited in footnote 23 above, paragraph 13.
Paragraph 21.
On this theme, sec, for example, Patricia Pochet,
In any case, the question still remains of who is to pay damages in the event of dismissal.
Paragraph 18. That case concerned the applicability of the Directive in the event of the termination of the employment contract of an employee of a company in liquidation, whose activities were taken over by another newly formed company operating from the same premises.
See Case
See also Vivien Shrubsall's analysis of the problem, op. cit, p. 87.
Sec D'Urso and Rotsart de Hertaing, cited in footnotes 45 and 22 above, paragraphs 20 and 18 respectively.
Paragraph 20.
On this point, see Vivien Shrubsall, op. cit., p. 92.
In fact, the circumstances in Schmidt were the precise reverse: in that case, one undertaking contracted out to another cleaning work that it had previously done itself, even though the activity in question had been performed, prior to the transfer, by a single employee. In Siizen, an undertaking had terminated the contract for cleaning its premises and concluded a new contract for the same work with a different undertaking.
1 should point out that Article 1(1)(b) of Directive 98/50 provides that there is a transfer within the meaning of the Directive where there is
The undertaking at issue in that case was a Dutch foundation engaged in assisting drug addicts.
Paragraph 30.
My emphasis.
The undertaking at issue in this case, to which I have already referred in footnote 34, was Philips, which had entrusted the management of its four staff canteens to a catering company, ISS. Under that arrangement, ISS agreed to take over Philips' canteen staff (about ten people) on the same terms and conditions, while Philips agreed to pay a fixed monthly fee and offer certain remuneration in kind. Thus, Philips provided ISS with premises and equipment, electricity, heating and telephones, wardrobe facilities and refuse removal, and supplied it with various products at wholesale prices. The Court held that the Directive was applicable.
Paragraph 17.
My emphasis.
Judgment cited in footnote 34 above, paragraph 19.
Sec also Schmidt, Spijkers and Redmond Stichting, cited in footnotes 14, 23 and 14 above, paragraphs 17, 11 and 23 respectively.
Paragraph 20.
See, for example, Merckx and Neubuys, Daddy's Dance Hall, Bork and Redmond Stichting, cited in footnotes 23, 14, 22 and 14 above, paragraphs 30, 10, 14 and 13 respectively.
See, in particular, Spijkers and Redmond Stichting, cited in footnotes 23 and 14 above, paragraphs 13 and 24 respectively.
Sec, for example, Daddy's Dance Hnil, cited in footnote 14 above, paragraph 14, and Case
Sec, for example, Rygaard and Sitzen, cited in footnotes 28 and 2 above, paragraphs 20 and 13 respectively.
I note that, in Schmidt, cited in footnote 14 above, the fact that the cleaning activity was performed by a single employee did not prevent the Court from deciding (paragraph 15) that there was a stable economic entity. It added that the protection afforded by the Directive cannot depend on the number of employees assigned to the part of the business transferred.
See Case
Unlike the situation in Schmidt.
According to the documents before the Court, the employees in question were disabled people specially trained for the purpose.
Sec Jules Dethier Equipement, cited in footnote 63 above, paragraph 37.
See also Süzen, cited in footnote 2 above, paragraph 16.
Sec
To be more precise, it must consider the particular characteristics of the activity exercised first by Minerva and then by Aser, under the contract concluded by those companies with the Municipality of Guadalajara, that is to say, it must decide whether or not these home-help services were the same.
The Commission notes (at point 8 of its written observations) that, in a report submitted to the municipality, Aser explains that its structure is based on a number of teams of home helps, with a coordinator and a technical team trained by specialists (social workers, psychologists, etc.).
This point is considered in greater detail below in the context of Case 247/96 Horst Ziemann.
See Rotsart de Hertaing, cited in footnote 22 above, paragraph 20.
The Commission refers in its written observations (at point I.4) to a report submitted by Aser to the Municipality of Guadalajara, from which it appears that Aser intended to keep on the whole team of home helps responsible for providing the service when the transfer took place.
See, for example, Rygaard and Süzen, cited in footnotes 28 and 2 above, paragraphs 20 and 13 respectively.
I should point out that the contract between the Bundeswehr, which runs the medical supplies depot, and each of the security outfits is a highly detailed contract drawn up by the competent military administration and that it is put out to tender. Both the call for tenders and the contract list in detail the nature and scope of the security guards' duties; the number of security guards and accompanying dogs; the requirements to be satisfied by the security guards deployed; requirements
For example, a museum, a bank, a block of flats or offices, etc.
I should point out that the national court states (point II.4 in fine) that, according to Mr Ziemann, Morst Bohrt took on nine of the twelve employees engaged in security duties at the medical supplies depot at Efringen-Kirchen and Mr Ziemann was the only employee (apart from one other of the older employees) to be dismissed, the reason given being that the body awarding the contract considered him to be too old for security duties. The Commission states (at point 7 of its written observations) that a third employee left the company of his own accord.
Thus, the Court has held that the Directive applies to the termination of a lease of a restaurant followed by the conclusion of a new management contract with another operator (Daddy's Dance Hall, cited in footnote 14 above), the termination of a lease followed by a sale by the owner (Bark, cited in footnote 22 above), and also a situation in which a public authority ceases to grant subsidies to a legal person thereby bringing about the full and definitive termination of its activities in order to transfer them to another legal person with a similar aim (Redmond Stichting, cited in footnote 14 above). In paragraphs 30 and 32 of its judgment in Merckx and Neuhuys, cited in footnote 23 above, it held that the Directive applied to a situation where a motor vehicle dealership concluded with one undertaking is terminated and a new dealership is awarded to another undertaking pursuing the same activities, which takes on part of the staff and is recommended to customers, without any transfer of assets.
I should mention that, because of the discrepancies between the versions of the term
In this case, Ziemann Sicherheit.
The Bundeswehr.
Horst Bohn.
The Commission rightly points out (at point 48 of its written observations) that the type of transfer and the calibre of the staff re-engaged may provide useful clues for determining the length ottime during which a business may still effectively be transferred after the termination of the old contract and before the new one commences. Thus, where the new operator must first be selected by means of a lengthy tendering procedure, the interval may be longer than in cases where part of a business is transferred by a direct change of contractor. The interval allowed may also be more generous where the work to be entrusted to the new contractor is highly skilled, so that it will take longer to find a suitable undertaking or contractor than it would if the activities could be performed by any one of a number of undertakings or contractors.
On
Mr Ziemann's action against Ziemann Sicherheit and Horst Bohn was brought on
According to the Commission, the contract was awarded to Horst Bohn on
Article 1(1) of Directive 77/187 is to be interpreted as meaning that the Directive may apply where an undertaking which had entrusted the service of home help for persons in need to another undertaking entrusts the same service to a third undertaking on expiry of the first contract, provided that the latter takes over a major part, in terms of their numbers and skills, of the employees assigned by its predecessor to the performance of the contract, even if there is no concomitant transfer from one undertaking to the other of significant tangible or intangible assets.
The protection afforded by the provisions of Directive 77/187 to employees in the event of a change of employer following a transfer of an undertaking, business or part of a business cannot depend on whether or not the new employer is formally required, under a collective agreement or tendering conditions, to be subrogated to the former