Ángel Somoza Hermo and Ilunión Seguridad SA v Esabe Vigilancia SA and Fondo de Garantia Salarial (Fogasa).

• Jurisdiction: European Union
• Celex Number: 62017CJ0060
• ECLI: ECLI:EU:C:2018:559
• Docket Number: C-60/17
• Court: Court of Justice (European Union)
• Procedure Type: Cuestión prejudicial - inadmisible
• Date: 11 July 2018

JUDGMENT OF THE COURT (Tenth Chamber)

11 July 2018 (*1 )

(Reference for a preliminary ruling — Directive 2001/23/EC — Article 1(1) — Transfer of an undertaking — Article 3(1) — Safeguarding of employees’ rights — Taking over of employment contracts in accordance with the terms of a collective agreement — Collective agreement excluding the obligation, for the transferor and transferee of the undertaking, to assume joint and several liability in respect of the obligations, including those relating to wages, which arose from employment contracts before that undertaking was transferred)

In Case C‑60/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia, Spain), made by decision of 30 December 2016, received at the Court on 6 February 2017, in the proceedings

Ángel Somoza Hermo,

Ilunión Seguridad SA

v

Esabe Vigilancia SA,

Fondo de Garantía Salarial (Fogasa),

THE COURT (Tenth Chamber),

composed of E. Levits, President of the Chamber, A. Borg Barthet (Rapporteur) and M. Berger, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Mr Somoza Hermo, by X. Castro Martínez, abogado,

– the Spanish Government, by A. Gavela Llopis, acting as Agent,

– the European Commission, by M. Kellerbauer and J. Rius, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 1(1) and 3(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 (OJ 2001 L 82, p. 16).

2 The request has been made in proceedings between, on the one hand, Mr Ángel Somoza Hermo and Ilunión Seguridad SA and, on the other, Esabe Vigilancia SA and Fondo de Garantía Salarial (Fogasa) concerning the payment, to Mr Somoza Hermo, of shortfalls in remuneration and discretionary social benefits for the years 2010 to 2012.

Legal context

EU law

3 Directive 2001/23 codifies Council Directive 77/187/EEC of 14 February 1977 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 (OJ 1977 L 61, p. 26), as amended by Council Directive 98/50/EC of 29 June 1998 (OJ 1998 L 201, p. 88).

4 Recital 3 of Directive 2001/23 reads as follows: ‘It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded.’

5 Recital 8 of that directive states: ‘Considerations of legal security and transparency required that the legal concept of transfer be clarified in the light of the case-law of the Court of Justice. Such clarification has not altered the scope of Directive 77/187/EEC as interpreted by the Court of Justice.’

6 Article 1(1)(a) and (b) of Directive 2001/23 provides: ‘(a) This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger. (b) Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.’

7 Under Article 3 of Directive 2001/23: ‘1. The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer. … 3. Following the transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement. Member States may limit the period for observing such terms and conditions with the proviso that it shall not be less than one year. (a) Unless Member States provide otherwise, paragraphs 1 and 3 shall not apply in relation to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary company or intercompany pension schemes outside the statutory social security schemes in Member States. (b) Even where they do not provide, in accordance with subparagraph (a), that paragraphs 1 and 3 apply in relation to such rights, Member States shall adopt the measures necessary to protect the interests of employees and of persons no longer employed in the transferor’s business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old age benefits, including survivors’ benefits, under supplementary schemes referred to in subparagraph (a).’

8 Article 8 of that directive provides: ‘This Directive shall not affect the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees or to promote or permit collective agreements or agreements between social partners more favourable to employees.’

Spanish law

9 The rules applicable to employees in the event of transfer of economic entities are defined by Real Decreto Legislativo 1/1995 por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree No 1/1995 approving the amended text of the Workers’ Statute) of 24 March 1995 (BOE No 75 of 29 March 1995, p. 9654), in its version resulting from Law 12/2001 of 9 July 2001 (BOE No 164 of 10 July 2001, p. 24890) (‘the Workers’ Statute’).

10 Article 44 of the Workers’ Statute provides: ‘1. The transfer of an undertaking, business or independent production unit of an undertaking shall not, in itself, terminate the employment relationship; the new employer shall take over the former employer’s rights and obligations in respect of the employment contract and social security, including commitments with regard to pensions, on the conditions laid down by the applicable specific legislation, and, in general, all obligations in the sphere of additional social protection that were borne by the transferor. 2. For the purposes of this article, there shall be a transfer of undertaking in the case where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. 3. Without prejudice to the provisions of social security legislation, in the case of inter vivos transfers, the transferor and the transferee shall be jointly and severally liable for three years for obligations arising from the employment contract which arose before the transfer and which have not been fulfilled.’

11 Article 14 of the Convenio colectivo estatal de las empresas de seguridad (Collective State Agreement for Security Firms), BOE No 99, of 25 April 2013, p. 31668) (‘the collective agreement for security firms’) provides: ‘Having regard to the specific characteristics and circumstances of the business, which require the mobility of employees from one job to another, this provision seeks to ensure the stability of employment of employees in this sector, but not the stability of the job, on the basis of the following implementing legislation, which applies to security services, security systems, personal protection and rural personal bodyguard services: (A) Implementing legislation. Where an undertaking ceases to hold the contract for the services which it is engaged to provide to a public or private client as a result of termination, on any ground, of the contract for the provision of services, the new contractor is required in all cases to take over the contracts of employees assigned to that contract and workplace, regardless of the type of contract that those employees have or their employment category, provided that it is established that the employees assigned to the service have a genuine minimum length of service of seven months immediately prior to the date on which the service is taken over, a period which includes the permitted absences of the employee of the service taken over, which are established in Articles 45, 46 and 50 of this collective agreement, situations of temporary absence on grounds of ill-health and disciplinary suspensions, for any reason, with the express exception of unpaid leave provided for in Article 48, except for employees contracted for a specific task or service. … (B) Obligations of the undertakings which cease to provide the service and of the undertaking holding the contract. B.1 Undertaking...