Landsorganisationen i Danmark for Tjenerforbundet i Danmark v Ny Mølle Kro.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Everling
• ECLI: ECLI:EU:C:1987:573
• Date: 17 December 1987
• Docket Number: 287/86
• Procedure Type: Reference for a preliminary ruling

Avis juridique important

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61986J0287

Judgment of the Court (Third Chamber) of 17 December 1987. - Landsorganisationen i Danmark for Tjenerforbundet i Danmark v Ny Mølle Kro. - Reference for a preliminary ruling: Arbejdsretten - Denmark. - Safeguarding of employees rights in the event of transfers of undertakings. - Case 287/86.

European Court reports 1987 Page 05465
Swedish special edition Page 00279
Finnish special edition Page 00281

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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1 . SOCIAL POLICY - APPROXIMATION OF LAWS - TRANSFERS OF UNDERTAKINGS - SAFEGUARDING OF EMPLOYEES' RIGHTS - DIRECTIVE 77/187 - SCOPE - LEASE - REPOSSESSION OF BUSINESS BY THE OWNER FOLLOWING BREACH OF THE LEASE BY THE LESSEE - INCLUDED

( COUNCIL DIRECTIVE 77/187, ARTICLE 1 ( 1 ) )

2 . SOCIAL POLICY - APPROXIMATION OF LAWS - TRANSFERS OF UNDERTAKINGS - SAFEGUARDING OF EMPLOYEES' RIGHTS - DIRECTIVE 77/187 - TRANSFER - CONCEPT

( COUNCIL DIRECTIVE 77/187, ARTICLE 1 ( 1 ) )

3 . SOCIAL POLICY - APPROXIMATION OF LAWS - TRANSFERS OF UNDERTAKINGS - SAFEGUARDING OF EMPLOYEES' RIGHTS - DIRECTIVE 77/187 - OBLIGATION OF TRANSFEREE TO CONTINUE TO OBSERVE THE TERMS AND CONDITIONS OF EMPLOYMENT AGREED IN A COLLECTIVE AGREEMENT - BENEFICIARIES - WORKERS NOT EMPLOYED BY THE UNDERTAKING AT THE TIME OF THE TRANSFER - EXCLUDED

( COUNCIL DIRECTIVE 77/187, ARTICLE 3 ( 2 ) )

Summary

1 . ARTICLE 1 ( 1 ) OF DIRECTIVE 77/187 ON THE SAFEGUARDING OF EMPLOYEES' RIGHTS IN THE EVENT OF TRANSFERS OF UNDERTAKINGS IS APPLICABLE WHERE THE OWNER OF A LEASED UNDERTAKING TAKES OVER ITS OPERATION FOLLOWING A BREACH OF THE LEASE BY THE LESSEE .

2 . ARTICLE 1 ( 1 ) OF DIRECTIVE 77/187 ENVISAGES THE TRANSFER OF A BUSINESS AS A GOING CONCERN . IN ORDER TO ASCERTAIN WHETHER THIS IS THE CASE, ACCOUNT MUST BE TAKEN OF ALL THE FACTUAL CIRCUMSTANCES SURROUNDING THE TRANSACTION IN QUESTION, INCLUDING, WHERE APPROPRIATE, THE TEMPORARY CLOSURE OF THE UNDERTAKING AND THE FACT THAT THERE WERE NO EMPLOYEES AT THE TIME OF THE TRANSFER, ALTHOUGH THESE FACTS ALONE DO NOT PRECLUDE THE APPLICABILITY OF THE DIRECTIVE, ESPECIALLY IN THE CASE OF A SEASONAL BUSINESS .

3 . ARTICLE 3 ( 2 ) OF DIRECTIVE 77/187 DOES NOT OBLIGE THE TRANSFEREE TO CONTINUE TO OBSERVE THE TERMS AND CONDITIONS AGREED IN ANY COLLECTIVE AGREEMENT IN RESPECT OF WORKERS WHO WERE NOT EMPLOYED BY THE UNDERTAKING AT THE TIME OF THE TRANSFER .

Parties

IN CASE 287/86

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY ARBEJDSRETTEN ( LABOUR COURT ), COPENHAGEN, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

LANDSORGANISATIONEN I DANMARK ( DANISH TRADES UNION CONGRESS ) FOR TJENERFORBUNDET I DANMARK ( DANISH UNION OF WAITERS AND WAITRESSES )

AND

NY MOELLE KRO, REPRESENTED BY ITS OWNER, ELLA MARIE HANNIBALSEN,

INTERVENER : DANSK ARBEJDSGIVERFORENING ( DANISH EMPLOYERS' ORGANIZATION ),

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF 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 BUSINESSES ( OFFICIAL JOURNAL 1977, L 61, P . 26 ),

THE COURT ( THIRD CHAMBER )

COMPOSED OF : J . C . MOITINHO DE ALMEIDA, PRESIDENT OF CHAMBER, U . EVERLING AND Y . GALMOT, JUDGES,

ADVOCATE GENERAL : G . F . MANCINI

REGISTRAR : H . A . ROEHL, PRINCIPAL ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

LANDSORGANISATIONEN I DANMARK BY KNUD CHRISTENSEN, FINN THORGRIMSON AND ROENNOW BRUUN,

THE DANSK ARBEJDSGIVERFORENING BY H . C . SPRINGBORG, J . U . BRINK AND H . WERNER,

THE UNITED KINGDOM BY H . R . L . PURSE, AND

THE COMMISSION OF THE EUROPEAN COMMUNITIES BY JOHANNES FOENS BUHL AND ENRICO TRAVERSA,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 2 JULY 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 28 OCTOBER 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY A DECISION OF 12 NOVEMBER 1986, WHICH WAS RECEIVED AT THE COURT ON 21 NOVEMBER 1986, ARBEJDSRETTEN, COPENHAGEN, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 1 ( 1 ) AND 3 ( 2 ) OF COUNCIL DIRECTIVE 77/187 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 BUSINESSES ( OFFICIAL JOURNAL 1977, L 61, P . 26 ).

2 THE QUESTIONS WERE RAISED IN THE CONTEXT OF PROCEEDINGS BROUGHT BY LANDSORGANISATIONEN I DANMARK ON BEHALF OF TJENERFORBUNDET I DANMARK AGAINST MRS HANNIBALSEN .

3 IN 1980 MRS HANNIBALSEN LEASED THE NY MOELLE TAVERN TO INGER LARSEN, WHO ON 1 OCTOBER 1980 CONCLUDED AN AGREEMENT WITH THE HOTEL - OG RESTAURATIONSPERSONALETS SAMVIRKE ( ASSOCIATION OF HOTEL AND RESTAURANT EMPLOYEES ). ACCORDING TO THAT...