Judgment of the Court (Seventh Chamber) of 16 February 2023 –
Strong Charon
(Case C‑675/21) (1)
(Reference for a preliminary ruling – Social policy – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23/EC – Scope – Refusal by the transferee to recognise the transfer of the employment contract – Definition of ‘transfer’ – Definition of ‘economic unit’ – Absence of a contractual link between the transferor and the transferee)
1. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Scope – Transfer – Meaning – Criteria – Absence of a contractual link between the transferor and the transferee – Irrelevant
(Council Directive 2001/23, Art. 1(1)(b))
(see paragraphs 42, 43, 45, operative part 1)
2. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23 – Scope – Undertaking providing security services replaced, by the customer, by a new service provider to supply the same services – 1Taking on, by the latter undertaking, of a very small number of workers from the former undertaking – Workers taken on without the specific skills and knowledge essential to the performance of services for that customer – Tangible or intangible property not taken over – Not included
(Council Directive 2001/23, recital 3 and Art. 1(1))
(see paragraphs 47-58, operative part 2)
Operative part
1. | | 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 the absence of a contractual link between the transferor and the transferee of an undertaking or a business, or part of an undertaking or a business, is irrelevant to establishing the existence of a transfer, for the purposes of that directive.
2. | | Article 1(1) of Directive 2001/23 |
must be interpreted as meaning that a situation in which a service provider which, in order to meet the needs of one of its customers, had assigned to the latter a team composed of a certain number of workers, and is replaced, by that customer, by a new service provider to supply the same services, and (i) the latter service provider takes on only a very small number of the workers in that team, without those workers having the specific skills and knowledge essential to the performance of those services for that customer, and (ii) the new service provider does not take over such tangible or intangible property as would have been necessary for the continuity of those services, cannot fall within the scope of that directive.