Jhonny Briot v Randstad Interim, Sodexho SA and Council of the European Union.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2010:526
• Docket Number: C-386/09
• Date: 15 September 2010
• Procedure Type: Reference for a preliminary ruling

Case C-386/09

Jhonny Briot

v

Randstad Interim and Others

(Reference for a preliminary ruling from the

cour du travail de Bruxelles)

(Article 104(3), second subparagraph, of the Rules of Procedure – Directive 2001/23/EC – Transfer of undertakings – Safeguarding of employees’ rights – Non-renewal of a fixed-term contract of employment of a temporary worker)

Summary of the Order

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

(Council Directive 2001/23, Arts 3(1), first para., and 4(1), first para.)

When the fixed-term employment contract of a temporary worker has ended, due to expiry of the agreed term, on a date earlier than that of the transfer of the activity to which he was assigned, the non-renewal of this contract because of that transfer does not disregard the prohibition set out in Article 4(1) of 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. Thus, that temporary worker is not to be regarded as still being available to the user company on the date of the transfer.

Accordingly, the worker is not, in principle, entitled to renewal of a fixed-term contract. The fact that the expiry date of such a contract precedes the date laid down for the transfer of the activity to which the worker was assigned cannot create such a right. The non‑renewal of a fixed-term temporary employment contract, due to the absence of a new agreement between the employer and the employee, cannot be regarded as dismissal within the meaning of Article 4(1) of Directive 2001/23, by which the employment contract or employment relationship is terminated by a unilateral decision of the employer.

(see paras 33-34, 37, operative part)

ORDER OF THE COURT (Seventh Chamber)

15 September 2010 (*)

(Article 104(3), second subparagraph, of the Rules of Procedure – Directive 2001/23/EC – Transfer of undertakings – Safeguarding of employees’ rights – Non-renewal of a fixed-term contract of employment of a temporary worker)

In Case C‑386/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Cour du travail Bruxelles (Belgium), made by decision of 21 September 2009, received at the Court on 30 September 2009, in the proceedings

Jhonny Briot

v

Randstad Interim,

Sodexho SA,

Council of the European Union,

THE COURT (Seventh Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, J. Malenovský (Rapporteur) and T. von Danwitz, Judges,

Advocate General: V. Trstenjak,

Registrar: R. Grass,

having informed the referring court that the Court proposes to give its decision by reasoned order in accordance with the second subparagraph of Article 104(3) of its Rules of Procedure,

having invited the interested parties referred to in Article 23 of the Statute of the Court of Justice to submit any observations they may have on that subject,

after hearing the Advocate General,

makes the following

Order

1 This reference for a preliminary ruling concerns the interpretation of Articles 2 to 4 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 has been made in proceedings between (i) Mr Briot and (ii) the temporary employment agency Randstad Interim (‘Randstad’), the company Sodexho (‘Sodexho’) and the Council of the European Union (‘the Council’) in relation to various claims brought by Mr Briot concerning, first, the conditions under which he worked in the Council restaurant in Brussels under a temporary contract with Randstad and, second, the fact that he was not re-engaged in the service of Sodexho after the operation of the restaurant was transferred to it.

Legal context

European Union 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 undertakings or 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).

4 Under Article 1(1)(a) and (b) of Directive 2001/23:

‘(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.’

5 Article 2 of Directive 2001/23 provides:

‘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;

…

2. 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, 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.’

6 Under the terms of the first subparagraph of Article 3(1), of Directive 2001/23:

‘The transferor’s rights and obligations arising from a contract of employment or from an employment...