Mirja Juuri v Fazer Amica Oy.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2008:471
• Date: 04 September 2008
• Docket Number: C-396/07
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 4 September 2008 ¹(1)

Case C‑396/07

Mirja Juuri

v

Fazer Amica Oy

(Reference for a preliminary ruling from the Korkein Oikeus (Finland))

(Transfer of undertakings – Safeguarding of employees’ rights – Directive 2001/23/EC – Article 3(3) – Article 4(2) – Application of a new collective agreement – Circumvention of the law – Substantial change in working conditions – Voluntary termination of the employment contract – Termination attributable to the employer – Consequences of the termination in terms of compensation – Minimum content of directives)

I – Introduction

1. Mirja Juuri worked in the canteen of a metalworking company in Finland for nine years. When her employer transferred the catering sector to another undertaking, Ms Juuri’s working conditions deteriorated. Community law provides a remedy for a worker in this position, but the national court is uncertain how the Community rules should be interpreted. Specifically, Directive 2001/23/EC, relating to the safeguarding of employees’ rights in the event of transfers of undertakings, (2) attributes responsibility for a case such as that of Ms Juuri to her new employer. The Court of Justice must determine the extent of that responsibility, as well as its financial consequences.

2. Directive 2001/23 is part of what is called ‘Community social law’. This branch of Community law offers workers a minimum level of protection, although the Member States may increase that protection. The complexity inherent in the regulation of national labour markets meant that the adoption of this legislation involved achieving wide consensus, with the result that its provisions, which are open-ended and ambiguous, often require the intervention of the Court of Justice in the form of preliminary rulings.

3. Furthermore, Community social law is characterised by its fragmented structure. It is made up of certain rules for resolving specific problems which emerge in the course of the employment relationship. Metaphorically speaking, it resembles an archipelago (3) whose small islands do not always seem to be linked by bridges. In the present case, the Court is being asked to address questions arising on one of these islands. (4) The risk is, therefore, that while the issues of interpretation concerning the directive in question may be satisfactorily resolved, those concerning other related directives may not. For this reason, it is important to be rigorous and not to overlook connections in an area as diffuse as social law, which is more coherent, however, than it first appears.

II – Facts

4. On 5 April 1994 Mirja Juuri started working for Rautaruukki Oyj (‘the transferor’), in Hämeenlinna (Finland), in the company canteen. From 10 December 1999, Ms Juuri’s employment contract became permanent.

5. Although her duties were limited to the canteen, Ms Juuri came under the metalworking industry collective agreement, which was due to expire on 31 January 2003 and was automatically renewable for periods of one year unless one of the parties gave notice of termination at least two months prior to its expiry. No termination was necessary because, on 12 December 2002, a new agreement for the sector was signed, with effect from 1 February 2003.

6. On that date, when the previous agreement had already expired, the transferor handed over the running of the canteen to Amica Ravintolat Oy (‘the transferee’). Once the transfer had taken place, the workers started to work for the transferee, albeit under a new collective agreement, which in this case was the agreement relating to the hotel and catering sector.

7. Ms Juuri was unhappy with her employment being governed by the hotel and catering agreement and considered herself covered by the metalworking agreement. She maintained that the change of regime had meant a reduction in her pay of EUR 300 a month, as well as the need to transfer to different workplaces. For its part, the transferee has conceded that the more recent agreement required Ms Juuri to undergo a number of changes, including carrying out her work in other workplaces, albeit temporarily, and a reduction in her pay of EUR 100 a month due to a proportional reduction in working hours.

8. Following these changes in the system of collective agreements governing her employment, Ms Juuri decided to terminate her contract of employment on 19 February 2003. Relying on Finnish employment legislation, she brought legal proceedings against the transferee, claiming compensation in respect of holiday corresponding to the notice period and further compensation equivalent to 14 months’ pay for unfair dismissal. On 11 February 2005 the Helsingin Käräjäoikeus (Helsinki District Court) rejected Ms Juuri’s claim. A year later, on 28 February 2006, the Helsingin hovioikeus (Helsinki Court of Appeal) upheld the judgment at first instance but Ms Juuri took her case to the Korkein oikeus (Supreme Court), which is the court now referring questions to the Court of Justice concerning the interpretation of Directive 2001/23.

III – Legal framework

A – Community legislation

9. Directive 2001/23 sets out a system of minimum standards in order to preserve the rights of workers in the event of transfers of undertakings, businesses or parts of undertakings or businesses. In the context of the dispute between Ms Juuri and the transferee, the relevant provisions of that directive are Articles 3(3) and 4(2).

‘Article 3

…

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.

…

Article 4

…

2. If the contract of employment or the employment relationship is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment or of the employment relationship’.

B – National legislation

10. According to the order for reference from the Korkein oikeus, Paragraph 2 of Chapter 6 of the Työsopimuslaki (Finnish Law on employment contracts) provides that ‘a contract of employment concluded for an indeterminate period or otherwise in force until further notice may be terminated by the giving of notice to that effect by one of the parties.’

11. Paragraph 6 of Chapter 7 transposes Article 4(2) of Directive 2001/23 into Finnish law by providing that, ‘If a contract of employment is terminated because the employee’s working conditions become substantially worse as a result of a transfer of the undertaking, the employer shall be regarded as responsible for ending the employment relationship.’

12. Paragraph 1(2) of Chapter 8 of the Työsopimuslaki permits an employee to terminate the employment contract if the employer is in serious breach of obligations which are of fundamental importance to the employment relationship, at least until the date of expiry of the notice period.

13. Under Paragraph 5 of the Työehtosopimuslaki (Finnish Law on collective agreements), if the employer is party to or is otherwise bound by a collective agreement, all his rights and obligations thereunder pass to his successor. The transferee is therefore obliged to comply with the provisions of the collective agreement binding upon the transferor until that collective agreement expires, and thereafter with the provisions of the collective agreement binding on it, the transferee, in accordance with Paragraph 4 of the Työehtosopimuslaki.

14. Paragraph 2 of Chapter 12 of the Työehtosopimuslaki covers the right of an employee to obtain compensation from the employer for unfair dismissal and requires employers to pay compensation to workers dismissed on grounds other than those considered to be fair under the Työehtosopimuslaki, and to compensate employees who have terminated their contracts of their own accord.

15. Paragraph 2 of Chapter 12 of the Työsopimuslaki also indicates the extent of the compensation that the worker can claim, which ranges from 3 months’ to 24 months’ pay.

16. The employee is not entitled to compensation under Paragraph 2 of Chapter 12 of the Työsopimuslaki if the employer terminates the employment contract on objective and serious grounds, but even in these circumstances the employee can claim pay and other entitlements relating to the notice period. There is no right to pay or other entitlements under the employment relationship if it can be shown that the employer had especially serious grounds for terminating the employment contract with immediate effect.

17. Paragraph 1 of Chapter 12 of the Työsopimuslaki also requires an employer who, intentionally or through carelessness, breaches or fails to fulfil obligations under the employment contract or the Työsopimuslaki to compensate the employee for any losses suffered.

IV – The questions referred for a preliminary ruling

18. By a decision of 24 August 2007 in the proceedings brought by Ms Juuri against the transferee, the Korkein oikeus, referred the following questions to the Court for a preliminary ruling:

‘1. Is Article 4(2) of Council Directive 2001/23/EC to be interpreted as meaning that a Member State must, in a situation in which an employee has himself given notice to terminate his contract of employment after his working conditions have become substantially worse following the transfer of an undertaking, in its law guarantee the employee the right to obtain financial compensation from the employer in the same way as in the case where the employer has unlawfully terminated the employment...