Case C-108/10

Ivana Scattolon

v

Ministero dell’Istruzione, dell’Università e della Ricerca

(Reference for a preliminary ruling from the Tribunale di Venezia)

(Social policy – Directive 77/187/EEC – Maintenance of the rights of workers in the event of a transfer of an undertaking – Meaning of ‘undertaking’ and ‘transfer’ – Transferor and transferee governed by public law – Application, from the date of transfer, of the collective agreement in force with the transferee – Salary treatment – Whether length of service completed with the transferor to be taken into account)

Summary of the Judgment

1.        Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 77/187 – Field of application – Takeover by a public authority of a Member State of staff employed by another public authority and entrusted with the provision of auxiliary services to schools

(Council Directive 77/187)

2.        Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 77/187 – Immediate application to the transferred workers of the collective agreement in force with the transferee – Prohibition of loss of salary – Scope

(Council Directive 77/184, Art. 3)

1.        The takeover by a public authority of a Member State of staff employed by another public authority and entrusted with the supply to schools of auxiliary services including, in particular, tasks of maintenance and administrative assistance constitutes a transfer of an undertaking falling within Directive 77/187 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 businesses, when that staff consists in a structured group of employees who are protected as workers by virtue of the domestic law of that Member State.

Whilst it is true that the reorganisation of structures of the public administration and the transfer of administrative functions between public administrative authorities are excluded by Article 1(1) of Directive 77/187 in the version resulting from Directive 98/50, and by Article 1(1) of Directive 2001/23, from the field of application of Directive 77/187, the fact remains that the ambit of those expressions is limited to cases in which the transfer concerns activities falling within the exercise of public powers. If another interpretation were accepted, any transfer imposed upon such workers could be removed by the public authority concerned from the field of application of Directive 77/187 simply by invoking the fact that the transfer forms part of a staff reorganisation.

The application of the rules set out by Directive 77/187 in these situations does not affect the power of Member States to rationalise their public administration. The only effect of the applicability of that directive is to prevent transferred workers from being placed, by reason only of the transfer, in a less favourable position than they were in before the transfer. As is apparent from Article 4 of Directive 77/187, the latter does not deprive the Member States of the possibility of allowing employers to alter working relations in an unfavourable direction, notably as regards protection against dismissal and the conditions of remuneration. The directive merely prohibits such alterations taking place on the occasion of, and because of, the transfer.

(see paras 54, 58-59, 66, operative part 1)

2.        When a transfer within the meaning of Directive 77/187 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 businesses leads to the immediate application to the transferred workers of the collective agreement in force with the transferee, and where the conditions for remuneration are linked in particular to length of service, Article 3 of that directive precludes the transferred workers from suffering, in comparison with their situation immediately before the transfer, a substantial loss of salary by reason of the fact that their length of service with the transferor, equivalent to that completed by workers in the service of the transferee, is not taken into account when determining their starting salary position with the latter. It is for the national court to examine whether, at the time of such transfer, there was such a loss of salary.

Whilst it is true that the rule in the first subparagraph of Article 3(2) of Directive 77/187 must be interpreted as permitting the transferee to apply, from the date of the transfer, the working conditions laid down by the collective agreement in force with him, including those concerning remuneration, and thus leaving him a margin for manoeuvre allowing him and the other contracting parties to arrange the salary integration of the transferred workers in such a way that the latter is duly adapted to the circumstances of the transfer in question, the fact remains that the arrangements chosen must be in conformity with the aim of that directive to prevent workers subject to a transfer from being placed in a less favourable position solely as a result of the transfer. The transferee’s putting that option into effect may not, therefore, have the aim or effect of imposing on those workers conditions less favourable overall than those applicable before the transfer. If it were otherwise, achievement of the objective pursued by Directive 77/187 could easily be called into question in any sector governed by collective agreements, which would compromise the effectiveness of that directive.

On the other hand, Directive 77/187 cannot with advantage be invoked in order to obtain an improvement of remuneration or other working conditions on the occasion of a transfer of an undertaking. Moreover, it is not contrary to that directive for there to exist certain differences in salary treatment between the workers transferred and those who were already, at the time of the transfer, employed by the transferee. Whilst other instruments and principles of law could prove relevant in order to examine the legality of such differences, Directive 77/187 itself is aimed merely at avoiding workers being placed, solely by reason of a transfer to another employer, in an unfavourable position compared with that which they previously enjoyed.

(see paras 74-77, 83, operative part 2)