Mohamed Jouini and Others v Princess Personal Service GmbH (PPS).

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2007:512
• Docket Number: C-458/05
• Date: 13 September 2007
• Procedure Type: Reference for a preliminary ruling

Case C-458/05

Mohamed Jouini and Others

v

Princess Personal Service GmbH (PPS)

(Reference for a preliminary ruling from the Oberster Gerichtshof)

(Social policy – Directive 2001/23/EC – Safeguarding of employees’ rights – Transfer of undertakings – Concept of ‘transfer’ – Temporary employment business)

Opinion of Advocate General Bot delivered on 22 March 2007

Judgment of the Court (Fourth Chamber), 13 September 2007

Summary of the Judgment

Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23

(Council Directive 2001/23, Art. 1(1))

In order to fall within 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, the taking over of employees must relate to a stable economic entity whose activity is not limited to performing one specific works contract. In the case of a temporary employment business, in the absence of an identifiable organisational structure, an analysis should take account of its special characteristics rather than aim to establish whether an economic entity exists at the level of its organisational structure.

Article 1(1) of Directive 2001/23 must therefore be interpreted as applying to a situation where part of the administrative personnel and part of the temporary workers are transferred to another temporary employment business in order to carry out the same activities in that business for the same clients and – which is a matter for the referring court to establish – the assets affected by the transfer are sufficient in themselves to allow the services characterising the economic activity in question to be provided without recourse to other significant assets or to other parts of the business.

(see paras 31, 34, 38, operative part)

JUDGMENT OF THE COURT (Fourth Chamber)

13 September 2007 (*)

(Social policy – Directive 2001/23/EC – Safeguarding of employees’ rights – Transfer of undertakings – Concept of ‘transfer’ – Temporary employment business)

In Case C-458/05,

REFERENCE for a preliminary ruling under Article 234 EC from the Oberster Gerichtshof (Austria), made by decision of 16 November 2005, received at the Court on 29 December 2005, in the proceedings

Mohamed Jouini,

Okay Gönen,

Hasan Bajric,

Gerald Huber,

Manfred Ortner,

Sükran Karacatepe,

Franz Mühlberger,

Nakil Bakii,

Hannes Kranzler,

Jürgen Mörth,

Anton Schneeberger,

Dietmar Susteric,

Sascha Wörnhör,

Aynur Savci,

Elena Peter,

Egon Schmöger,

Mehmet Yaman,

Dejan Preradovic,

Andreas Mitter,

Wolfgang Sorger,

Franz Schachenhofer,

Herbert Weiss,

Harald Kaineder,

Ognen Stajkovski, and

Jovica Vidovic

v

Princess Personal Service GmbH (PPS),

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of Chamber, E. Juhász, G. Arestis, J. Malenovský (Rapporteur) and T. von Danwitz, Judges,

Advocate General: Y. Bot,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the written procedure and further to the hearing on 13 December 2006,

after considering the observations submitted on behalf of:

– Mr Jouini and others, by E. Frischenschlager and D. Gallistl, Rechtsanwälte,

– Princess Personal Service GmbH (PPS), by G. Minichmayr, Rechtsanwalt,

– the Austrian Government, by C. Pesendorfer and G. Hesse, acting as Agents,

– the Commission of the European Communities, by V. Kreuschitz and J. Enegren, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 March 2007,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Article 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 reference was made in the course of an action brought by Mr Jouini and 24 other plaintiffs against Princess Personal Service GmbH (PPS) (‘PPS’), a company, for payment of claims for salary and for a declaration of a transfer of employment relationships to PPS for the purpose of calculating their claims.

Legal framework

Community legislation

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 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; ‘Directive 77/187’).

4 The eighth recital of the preamble to Directive 2001/23 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.’

5 Article 1(1)(a) and 1(b) of Directive 2001/23 provide:

‘(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.’

6 Article 2(2) of Directive 2001/23 states:

‘This Directive shall be without prejudice to national law as regards the definition of contract of employment or employment relationship.

However, Member States shall not exclude from the scope of this Directive contracts of employment or employment relationships solely because:

…

(c) they are temporary employment relationships within the meaning of Article 1(2) of Directive 91/383/EEC [Council Directive of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship (OJ 1991 L 206, p. 19)], and the undertaking, business or part of the undertaking or business transferred is, or is part of, the temporary employment business which is the employer.’

7 According to...