Case C‑426/11

Mark Alemo-Herron and Others

v

Parkwood Leisure Ltd

(Request for a preliminary ruling from the Supreme Court of the United Kingdom)

(Transfer of undertakings — Directive 2001/23/EC — Safeguarding of employees’ rights — Collective agreement applicable to the transferor and to the employee at the time of the transfer)

Summary — Judgment of the Court (Third Chamber), 18 July 2013

1.        Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees’ rights — Directive 2001/23 — Rights and obligations within the meaning of Article 3 — Individual contract of employment referring to a collective agreement applicable to the transferor and the employee at the time of the transfer —Whether a dynamic clause referring to collective agreements negotiated and agreed after the date of transfer of the undertaking is enforceable against the transferee — Transferee not having the possibility of participating in the negotiation process of such collective agreements — Not permissible

(Council Directive 2001/23, Art. 3)

2.        Social policy — Approximation of laws — Transfers of undertakings — Safeguarding of employees’ rights — Directive 2001/23 — Individual contract of employment referring to a collective agreement applicable to the transferor and the employee at the time of the transfer — Whether a dynamic clause referring to collective agreements negotiated and agreed after the date of transfer of the undertaking is enforceable against the transferee — Transferee not having the possibility of participating in the negotiation process of such collective agreements — Limitation of the transferee’s freedom to conduct a business — Undermining of the very essence of the freedom to conduct a business — Not permissible

(Charter of Fundamental Rights of the European Union, Art. 16; Council Directive 2001/23, Art. 3)

1.        Article 3 of Directive 2001/23 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 precluding a Member State from providing, in the event of a transfer of an undertaking, that dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer are enforceable against the transferee, where that transferee does not have the possibility of participating in the negotiation process of such collective agreements concluded after the date of the transfer.

The directive relating to employees’ rights does not aim solely to safeguard the interests of employees in the event of the 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. During the transfer of an undertaking from the public sector to the private sector, a dynamic clause referring to collective agreements negotiated and agreed after the date of transfer of an undertaking that are intended to regulate changes in working conditions in the public sector is liable to limit considerably the room for manoeuvre necessary for a private transferee to make such adjustments and changes. Such a clause is therefore liable to undermine the fair balance between the interests of the transferee in its capacity as employer, on the one hand, and those of the employees, on the other.

(see paras 25, 27-29, 37, operative part)

2.        In the light of Article 3 of Directive 2001/23 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 in accordance with the freedom to conduct a business  set out in Article 16 of the Charter of Fundamental Rights of the European Union, a 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. A dynamic clause referring to collective agreements negotiated and agreed after the date of transfer of the undertaking which deprives the transferee of the possibility of asserting its interests effectively in a contractual process and of negotiating the aspects determining changes in the working conditions of its employees reduces the transferee’s contractual freedom and is liable to adversely affect the very essence of its freedom to conduct a business set out in Article 16 of the Charter.

(see paras 28, 33-35)