Federación de Servicios Públicos de la UGT (UGT-FSP) v Ayuntamiento de La Línea de la Concepción, María del Rosario Vecino Uribe and Ministerio Fiscal.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2010:255
• Date: 06 May 2010
• Docket Number: C-151/09
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 6 May 2010 (1)

Case C‑151/09

Federación de Servicios Públicos de la UGT (UGT-FSP)

v

Ayuntamiento de la Línea de la Concepción

María del Rosario Vecino Uribe (and 19 other individuals)

(Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain))

(Transfers of undertakings – Safeguarding of employees’ rights – Employee representatives – Autonomy of the entity transferred)

1. By this reference for a preliminary ruling, the Court is asked once again to interpret 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, business or parts of undertakings or businesses (‘Directive 2001/23’). (2) On this occasion, however, the issue raised is one on which the Court has not yet ruled, that is to say, the meaning of the expression ‘preserves its autonomy’ in Article 6(1) of the directive.

Legal framework

European Union law

2. Recital 3 to Directive 2001/23 states that ‘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’.

3. Recital 5 recalls that ‘the Community Charter of the Fundamental Social Rights of Workers adopted on 9 December 1989 (“Social Charter”) states, in points 7, 17 and 18 in particular that: “the completion of the internal market must lead to an improvement in the living and working conditions of workers in the European Community. The improvement must cover, where necessary, the development of certain aspects of employment regulations such as procedures for collective redundancies and those regarding bankruptcies. Information, consultation and participation for workers must be developed along appropriate lines, taking account of the practice in force in the various Member States. Such information, consultation and participation must be implemented in due time, particularly in connection with restructuring operations in undertakings or in cases of mergers having an impact on the employment of workers”’.

4. Article 1 of that directive governs its scope of application. It provides:

‘1(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. …’

5. Article 2 of the directive sets out certain definitions. So far as relevant to this Opinion, it states:

‘1. For the purposes of this Directive:

(a) “transferor” shall mean any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), ceases to be the employer in respect of the undertaking, business or part of the undertaking or business;

(b) “transferee” shall mean any natural or legal person who, by reason of a transfer within the meaning of Article 1(1), becomes the employer in respect of the undertaking, business or part of the undertaking or business;

(c) “representatives of employees” and related expressions shall mean the representatives of the employees provided for by the laws or practices of the Member States;

(d) “employee” shall mean any person who, in the Member State concerned, is protected as an employee under national employment law.

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

…’

6. Article 3 forms part of Chapter II, entitled ‘Safeguarding of employees’ rights’. By virtue of Article 3(1), the rights and obligations of a transferor arising from a contract of employment or from an employment relationship existing on the date of a transfer are, by reason of such transfer, to be transferred to the transferee.

7. Article 3(3) lays down rules as to collective agreements where a transfer takes place. It provides:

‘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.

…’

8. Article 6 of the directive concerns the status and function of the representatives or of the representation of the employees following a transfer. It states:

‘1. If the undertaking, business or part of an undertaking or business preserves its autonomy, the status and function of the representatives or of the representation of the employees affected by the transfer shall be preserved on the same terms and subject to the same conditions as existed before the date of the transfer by virtue of law, regulation, administrative provision or agreement, provided that the conditions necessary for the constitution of the employees’ representation are fulfilled.

The first subparagraph shall not [apply] if, under the laws, regulations, administrative provisions or practice in the Member States, or by agreement with the representatives of the employees, the conditions necessary for the reappointment of the representatives of the employees or for the reconstitution of the representation of the employees are fulfilled.

Where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of a competent public authority (which may be an insolvency practitioner authorised by a competent public authority), Member States may take the necessary measures to ensure that the transferred employees are properly represented until the new election or designation of representatives of the employees.

If the undertaking, business or part of an undertaking or business does not preserve its autonomy, the Member States shall take the necessary measures to ensure that the employees transferred who were represented before the transfer continue to be properly represented during the period necessary for the reconstitution or reappointment of the representation of employees in accordance with national law or practice.

2. If the term of office of the representatives of the employees affected by the transfer expires as a result of the transfer, the representatives shall continue to enjoy the protection provided by the laws, regulations, administrative provisions or practice of the Member States.’

National law

9. Article 67(1) in fine of the Estatuto de los Trabajadores (Spanish Workers’ Statute) provides:

‘partial elections may be organised [within an undertaking] following departures or dismissals or in order to adjust the representation of employees following an increase in the size of the workforce. Collective agreements may provide for the measures necessary in order to adapt the representation of the employees to significant reductions in the workforce that may occur within an undertaking. If no such provision is made, such an adaptation shall be the subject of an agreement between the undertaking and the representatives of the employees.’

Facts, main proceedings and the question referred

10. By Decree 5983/80 of the Office of the Mayor of La Línea de la Concepción of 25 August 2008, it was decided that certain previously outsourced municipal public services should be taken back in-house. Specifically, all of the staff of the undertakings providing the following outsourced services were to be taken over: (i) caretaker services in public-sector schools, (ii) cleaning of public-sector schools, (iii) road cleaning, and (iv) maintenance of parks and gardens.

11. Those services had, until then, been provided by four separate companies operating in the private sector. The 20 individuals who are co-defendants in the main proceedings were the legal representatives of the employees covered by the transfer prior to the services being taken back in-house.

12. On 10 September 2008, in response to various requests made by the individuals concerned, the municipal authority refused to recognise their status as employee representatives. It appears from the order for reference that this refusal was based on the ground that: ‘since the employees referred to now form part of the municipal staff, such representatives must be considered to have ceased to carry out their functions, independently of the respect for the guarantees which the law provides for them’.

13. The order for reference also records that the applicant in the main proceedings, the UGT-FSP (the trade union representing the employees concerned) then sought various clarifications from the defendant authority concerning that decision. Thereafter, on 13 November 2008, the trade union brought proceedings before the Juzgado de lo Social Único de Algeciras (Social Court, Algeciras) in which it requested that court to declare, inter alia, that the representatives in question were entitled to retain their mandates until these expired in the course of time.

14. The order for reference is laconic in its description of the factual background to the transaction which resulted in the services concerned being taken back in-house.

15. It states merely that, once the various outsourced public services were taken back in-house by the municipal authorities, the employees who were part of the staff of the undertakings...