CLECE SA v María Socorro Martín Valor and Ayuntamiento de Cobisa.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2010:636
• Date: 26 October 2010
• Docket Number: C-463/09
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

Trstenjak

delivered on 26 October 2010 (1)

Case C‑463/09

CLECE SA

(Reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha (Spain))

(Social policy – Directive 2001/23/EC – Article 1(1)(a) and (b) – Transfers of undertakings – Safeguarding of employees’ rights – Scope – Concept of ‘transfer’ – Existence of an ‘economic entity’ – Taking over of cleaning services in a public building by a municipality in its capacity as an authority)

I – Introduction

1. The Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice, Castilla-La Mancha, ‘the referring court’) has referred a question to the Court pursuant to Article 234 EC (2) for a preliminary ruling on the interpretation 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. (3)

2. This reference for a preliminary ruling stems from a dispute between María Socorro Martin Valor (‘the applicant in the main proceedings’), a worker who had previously worked for the cleaning company CLECE SA (‘CLECE’), and the Ayuntamiento de Cobisa (Municipality of Cobisa) concerning rights arising from her previous employment relationship with CLECE. By her action she is challenging her dismissal, which she considers to be unlawful, relying inter alia on the rights granted to employees under Directive 2001/23 in the event of transfers of businesses.

3. By the question referred, the Court is essentially being asked to clarify whether Directive 2001/23 covers a situation in which a municipal authority which previously contracted a private undertaking to clean its premises terminates that contract in order to take over the cleaning services itself, and hires exclusively new staff for that purpose. From a legal point of view, this raises the question of the scope of that directive, in connection with which the Court will first have to consider whether the necessary condition for the transfer of a business – the maintenance of an economic entity – is satisfied even if neither assets nor any employees are taken on, but the ‘transfer’ as such consists solely in a continuation of functions.

II – Legislative context

A – Union law (4)

4. 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, (5) as amended by Council Directive 98/50/EC of 29 June 1998. (6)

5. According to the third recital in the preamble to Directive 2001/23,‘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’.

6. The eighth recital in the preamble to 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.’

7. Article 1(1) of the directive states:

‘(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.

(c) This Directive shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain. An administrative reorganisation of public administrative authorities, or the transfer of administrative functions between public administrative authorities, is not a transfer within the meaning of this Directive.’

8. The first subparagraph of Article 3(1) of the directive reads:

‘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.’

9. The first subparagraph of Article 4(1) of the directive states:

‘The transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.’

B – National law

1. Legislation

10. Paragraph 1 of Article 44 of the Ley del Estatuto de los Trabajadores of 24 March 1995 (‘the Worker’s Statute’), which transposes Directive 2001/23, provides:

‘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 with respect to the employment contract and social security, including all commitments in respect of pensions, in the conditions provided for by the relevant specific legislation and, generally, all obligations in relation to additional social protection which the transferor has undertaken.’

11. Article 44(2) provides that ‘for the purposes of this article, there shall be a transfer of undertaking 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’; that latter definition corresponds with the definition laid down in Article 1(1)(b) of Directive 2001/23.

2. Collective Agreement

12. Article 14 of the Collective Agreement concerning workers employed in the cleaning of buildings and premises in Toledo, published in Boletín Oficial de la Provincia de Toledo No 269 of 22 November 2005, provides:

‘When an undertaking whose cleaning services have been supplied by a contractor takes over those services itself, it is not obliged to keep on the staff who provided the services on behalf of the contractor if it employs its own staff to carry out the cleaning. It must, however, do so if it wishes to employ new staff to carry out the cleaning.’

III – Facts, main proceedings and question referred for a preliminary ruling

13. The applicant in the main proceedings was employed by CLECE as a cleaner from 25 March 2004. She worked on the premises of the Ayuntamiento de Cobisa (Toledo) under a contract for the supply of cleaning services in schools and premises belonging to the council, entered into between the two defendants on 27 May 2003. The order for reference states that there is no evidence that any special equipment was required for the job.

14. Following an extension of the contract, the Ayuntamiento informed the co‑defendant CLECE on 9 November 2007 that it wished to terminate the contract for the provision of cleaning services with effect from 31 December 2007. On 2 January 2008 that company informed the applicant in the main proceedings that, as of 1 January 2008, she would be employed by the Ayuntamiento since that body had been awarded the contract for cleaning the premises of the Ayuntamiento. That body was to assume all the rights and obligations which had thus far been regulated under the employment relationship, as established in the applicable Collective Agreement concerning workers employed in the cleaning of buildings and premises in Toledo.

15. On 2 January 2008, the applicant in the main proceedings presented herself for work at the premises of the Ayuntamiento, where she was not permitted to carry out her work. CLECE did not offer her an alternative job. The order for reference also states that the co-defendant Ayuntamiento engaged five workers to clean its premises on 10 January 2008, via an employment agency created on 21 January 2007.

16. The action for unlawful dismissal brought by the applicant in the main proceedings against CLECE and the Ayuntamiento de Cobisa gave rise to the judgment of the Juzgado de lo Social No 2 de Toledo (Social Court No 2, Toledo), which found that the Ayuntamiento de Cobisa could not be sued, but upheld the action brought against the co-defendant CLECE, found that the dismissal was unlawful, and ordered CLECE either to reinstate the applicant in the main proceedings on the terms she enjoyed prior to her dismissal or to compensate her in the amount of EUR 6 507.10, along with payment in either case of earnings lost during the proceedings.

17. CLECE brought an appeal before the referring court against that judgment on 26 December 2008. In that appeal, CLECE essentially claims that the Ayuntamiento is subrogated in the employment relationship with the applicant in the main proceedings pursuant to Article 14 of the Collective Agreement concerning workers employed in the cleaning of buildings and premises in Toledo in conjunction with Article 44 of the Law on the statute of workers and with the case-law which it cites.

18. In its order, the referring court expresses doubts as to the applicability of Directive 2001/23 to the main proceedings. It therefore stayed the proceedings and referred the following question to the Court for a preliminary ruling:

Does a situation in which a municipal authority resumes or takes over the activity of cleaning its premises, which was previously carried out by a contractor, and for which new staff are hired, fall within the scope of Directive 2001/23, as defined in...