Somoza Hermo and Ilunion Seguridad (Safeguarding of employees’ rights - Taking over of employment contracts in accordance with the terms of a collective agreement - Judgment) [2018] EUECJ C-60/17 (11 July 2018)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Somoza Hermo and Ilunion Seguridad (Safeguarding of employees’ rights - Taking over of employment contracts in accordance with the terms of a collective agreement - Judgment) [2018] EUECJ C-60/17 (11 July 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/C6017.html Cite as: [2018] WLR(D) 434, [2019] ICR 164, ECLI:EU:C:2018:559, EU:C:2018:559, [2018] EUECJ C-60/17

(Reference for a preliminary ruling — Directive 2001/23/EC — Article 1(1) — Transfer of an undertaking — Article 3(1) — Safeguarding of employees’ rights — Taking over of employment contracts in accordance with the terms of a collective agreement — Collective agreement excluding the obligation, for the transferor and transferee of the undertaking, to assume joint and several liability in respect of the obligations, including those relating to wages, which arose from employment contracts before that undertaking was transferred)

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia, Spain), made by decision of 30 December 2016, received at the Court on 6 February 2017, in the proceedings

composed of E. Levits, President of the Chamber, A. Borg Barthet (Rapporteur) and M. Berger, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Articles 1(1) and 3(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 request has been made in proceedings between, on the one hand, Mr Ángel Somoza Hermo and Ilunión Seguridad SA and, on the other, Esabe Vigilancia SA and Fondo de Garantía Salarial (Fogasa) concerning the payment, to Mr Somoza Hermo, of shortfalls in remuneration and discretionary social benefits for the years 2010 to 2012.

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).

‘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.’

‘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.’

‘(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.’

‘1. 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.

Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.

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.

4. (a) Unless Member States provide otherwise, paragraphs 1 and 3 shall not apply in relation to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary company or intercompany pension schemes outside the statutory social security schemes in Member States.

(b) Even where they do not provide, in accordance with subparagraph (a), that paragraphs 1 and 3 apply in relation to such rights, Member States shall adopt the measures necessary to protect the interests of employees and of persons no longer employed in the transferor’s business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old age benefits, including survivors’ benefits, under supplementary schemes referred to in subparagraph (a).’

‘This Directive shall not affect the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees or to promote or permit collective agreements or agreements between social partners more favourable to employees.’

9 The rules applicable to employees in the event of transfer of economic entities are defined by Real Decreto Legislativo 1/1995 por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree No 1/1995 approving the amended text of the Workers’ Statute) of 24 March 1995 (BOE No 75 of 29 March 1995, p. 9654), in its version resulting from Law 12/2001 of 9 July 2001 (BOE No 164 of 10 July 2001, p. 24890) (‘the Workers’ Statute’).

‘1. 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 in respect of the employment contract and social security, including commitments with regard to pensions, on the conditions laid down by the applicable specific legislation, and, in general, all obligations in the sphere of additional social protection that were borne by the transferor.

2. For the purposes of this article, there shall be a transfer of undertaking in the case 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.

3. Without prejudice to the provisions of social security legislation, in the case of inter vivos transfers, the transferor and the transferee shall be jointly and severally liable for three years for obligations arising from the employment contract which arose before the transfer and which have not been fulfilled.’

11 Article 14 of the Convenio colectivo estatal de las empresas de seguridad (Collective State Agreement for Security Firms), BOE No 99, of 25 April 2013, p. 31668) (‘the collective agreement for security firms’) provides:

‘Having regard to the specific characteristics and circumstances of the business, which require the mobility of employees from one job to another, this provision seeks to ensure the stability of employment of employees in this sector, but not the stability of the job, on the basis of the following implementing legislation, which applies to security services, security systems, personal protection and rural personal bodyguard services:

Where an undertaking ceases to hold the contract for the services which it is engaged to provide to a public or private client as a result of termination, on any ground, of the contract for the provision of services, the new contractor is required in all cases to take over the contracts of employees assigned to that contract and workplace, regardless of the type of contract that those employees have or their employment category, provided that it is established that the employees assigned to the service have a genuine minimum length of service of seven months immediately prior to the date on which the service is taken over, a period which includes the permitted absences of the employee of the service taken over, which are established in Articles 45, 46 and 50 of this collective agreement, situations of temporary absence on grounds of ill-health and disciplinary suspensions, for any reason, with the express exception of unpaid leave provided for in Article 48, except for employees contracted for a specific task or service.

(B) Obligations of the undertakings which cease to provide the service and of the undertaking holding the contract.

B.1 Undertaking which ceases to hold the contract: the undertaking which ceases to provide the service:

(a) payments and fees due for work provided up to the time at which it ceases to hold the contract, and

(b) settlement of all items, including paid holidays, since subrogation entails for the new contractor only the obligation to preserve the jobs of the employees affected.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 Mr Somoza Hermo worked as a security guard for Esabe Vigilancia, an undertaking holding the contract for the security service of the Museo de las Peregrinaciones, Santiago de Compostela, Spain, which comes under the Consellería de Cultura de la Xunta de Galicia (Department of Culture, Regional Government of Galicia, Spain).

13 On 16 October 2012, that security service was awarded to Vigilancia Integrada SA (‘VINSA’), now Ilunión Seguridad, which, from that date, took over the obligations arising from the employment contracts of the employees of the undertaking which had previously held the contract for that service, including the employment contract of Mr Somoza Hermo.

14 In that respect, VINSA informed Mr Somoza Hermo that, in accordance with the collective agreement for security firms, the shortfalls in remuneration and discretionary social benefits for the years 2010 to 2012 accorded by Esabe Vigilancia and still outstanding had to be paid by the latter.

15 As those two undertakings refused to pay Mr Somoza Hermo the sums claimed, he brought an action before the Juzgado de lo Social No 3 de Santiago de Compostela (Social Court No 3, Santiago de Compostela, Spain) with a view to obtaining payment of those sums.

16 That court upheld that action in part and ordered Esabe Vigilancia and VINSA jointly and severally to pay the debts which it held not to be time-barred, on the basis of Article 44(1) of the Workers’ Statute.

17 VINSA appealed against the judgment of that court to the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia, Spain), contending that the applicable provision is not Article 44 of the Workers’ Statute, but Article 14 of the collective agreement for security firms, which obliges the undertaking holding the contract to take over the rights and obligations arising for the transferor undertaking from the employment contracts. It submits that that subrogation obliges it to assume only the obligations arising from the employment contracts from the date on which it is awarded the contract and that it exempts it from liability for earlier obligations.

18 Mr Somoza Hermo also appealed against that judgment to the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia) with regard to the disallowed claims for payment of shortfalls in remuneration.

19 The referring court points out that the Tribunal Supremo (Supreme Court, Spain) held, in a judgment delivered on 7 April 2016, that Article 14 of the collective agreement for security firms concerns the succession in time of two undertakings providing a private security service. That succession includes an obligation for the transferee to take on the employees of the former undertaking.

20 Thus, according to that judgment, when one contractor succeeds another, subrogation does not operate pursuant to Article 44 of the Workers’ Statute if there has been no transfer of financial assets or transfer of employees in sectors where the activity is essentially labour-based. Therefore, in such cases, subrogation is effected in accordance with the applicable collective agreement. Consequently, the taking-on of the former undertaking’s employees does not reflect the situation in which members of staff are transferred because the new contracting company voluntarily takes on the majority of the employees who provided the services in question. On the contrary, in those cases, the transfer of staff is the result of compliance with the provisions laid down in the applicable collective agreement. The new contracting company could have assigned its own staff to the services concerned but is, however, required by that collective agreement to take on the employees assigned to those services by the former contracting company.

21 The Tribunal Supremo (Supreme Court) took the view that the case-law of the Court of Justice laid down in the judgment of 24 January 2002, Temco (C‑51/00, EU:C:2002:48) does not preclude that conclusion given that the subrogation imposed by the collective agreement for security firms does not arise from a situation which comes within the scope of Directive 2001/23 or of Article 44 of the Workers’ Statute. The relationship between Article 44 of the Workers’ Statute and Article 14 of the collective agreement for security firms is one of supplementation or of peaceful coexistence, in that the rules of the collective agreement, governing a different situation, improves the situation by applying one of the effects laid down in the statutory provision for its own scope of application.

22 The referring court is thus uncertain, in essence, whether, in the context of an activity that is essentially labour-based, the subrogation between undertakings, arising as the result of a transfer of a contract for the provision of services in accordance with a collective agreement which provides that the transferee undertaking is obliged to take on the staff of the undertaking which formerly held the contract, comes within the scope of Directive 2001/23. If that is the case, it is unsure whether a provision of the applicable collective agreement excluding the joint and several liability of the transferor and transferee as regards the compliance with the contractual obligations arising from employment contracts prior to the date of transfer of the service in question complies with Article 3(1) of that directive.

23 In those circumstances, the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does Article 1(1) of Council Directive 2001/23 ... apply when an undertaking ceases to hold the contract for the service it is engaged to provide for a client as a result of termination of the contract for the provision of the service, in a labour-intensive business (security of buildings), and the new holder of the contract for the service takes on the majority of the employees assigned to the performance of that service, when those employment contracts are taken over in accordance with the terms of the collective agreement [for security firms]?

(2) If the answer to the first question should be in the affirmative, if the legislation adopted by the Member State in order to transpose Directive 2001/23 provides, in accordance with Article 3(1) of that directive, that, after the date of the transfer, the transferor and the transferee are to be jointly and severally liable for obligations, including those relating to wages, which arose before the date of the transfer as a result of employment contracts existing on the date of the transfer, is an interpretation to the effect that joint and several liability for prior obligations does not apply when the majority of the workforce were taken on by the new contractor as a result of the requirements of the collective agreement [for security firms] and the wording of that agreement excludes joint and several liability for obligations preceding the transfer, compatible with Article 3(1) of that directive?’

24 By its first question, the referring court asks, in essence, whether Article 1(1) of Directive 2001/23 must be interpreted as meaning that that directive applies to a situation in which a contracting entity has terminated the contract for the provision of services relating to the security of buildings concluded with one undertaking and has, for the purposes of the provision of those services, concluded a new contract with another undertaking, which takes on, pursuant to a collective agreement, the majority, in terms of their number and skills, of the staff whom the first undertaking had assigned to the performance of those services, when the activity concerned is essentially labour-based.

25 Article 1(1)(a) of Directive 2001/23 applies 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.

26 In that respect, according to well-established case-law, the scope of that provision cannot be determined solely on the basis of a textual interpretation. On account of the differences between the language versions of that directive and the divergences between the laws of the Member States with regard to the concept of legal transfer, the Court has given that concept a sufficiently flexible interpretation in keeping with the objective of that directive, which is, as stated in recital 3 thereof, to provide for the protection of employees in the event of a change of employer (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 29 and the case-law cited).

27 In accordance with settled case-law of the Court, Directive 2001/23 is applicable whenever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the undertaking and entering into the obligations of an employer towards employees of the undertaking. There is thus no need, in order for Directive 2001/23 to be applicable, for there to be any direct contractual relationship between the transferor and the transferee, since the transfer may take place through the intermediary of a third party (judgment of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 23 and the case-law cited).

28 It follows that the lack of a contractual link between the two undertakings successively entrusted with managing the surveillance of the buildings in question has no bearing on the question as to whether or not Directive 2001/23 is applicable to a situation such as that at issue in the main proceedings (see, to that effect, judgment of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 24).

29 It must also be noted that, in accordance with Article 1(1)(b) of Directive 2001/23, in order for that directive to be applicable, the transfer must concern ‘an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether that activity is central or ancillary’.

30 In order to determine whether that condition is in fact met, it is necessary to consider all the facts characterising the transaction in question, including in particular the type of undertaking or business, whether or not its tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended. Those circumstances must be considered as part of the overall assessment of the circumstances of the particular case and cannot therefore be examined in isolation (judgment of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 26 and the case-law cited).

31 In particular, the Court has held that a national court, in assessing the facts characterising the transaction in question, must take into account, among other things, the type of undertaking or business concerned (judgments of 26 November 2015, Aira Pascual and Algeposa Terminales Ferroviarios, C‑509/14, EU:C:2015:781, paragraph 33, and of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 27).

32 It follows that the degree of importance to be attached to each criterion for determining whether or not there has been a transfer within the meaning of Directive 2001/23 will necessarily vary according to the activity carried on, or indeed according to the production or operating methods employed in the relevant undertaking, business or part of a business (judgment of 19 October 2017, Securitas, C‑200/16, EU:C:2017:780, paragraph 28 and the case-law cited).

33 The Court has previously stated that an economic entity is able, in certain sectors, to function without any significant tangible or intangible assets, and therefore the maintenance of the identity of such an entity following the transaction affecting it cannot, logically, depend on the transfer of such assets (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 35 and the case-law cited).

34 The Court has thus held that, inasmuch as, in certain labour-intensive sectors, a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, such an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task. In those circumstances, the new employer takes over an organised body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 36 and the case-law cited).

35 Thus, a business providing security in a museum, such as that at issue in the main proceedings, which does not require specific tangible assets, can be regarded as essentially a labour-intensive activity and, consequently, a group of workers engaged in a joint security activity on a permanent basis may, in the absence of other factors of production, constitute an economic entity. The identity of that entity must nonetheless be retained after the transfer in question (see, by analogy, judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 39).

36 In that respect, it is apparent from the order for reference that VINSA, for the purposes of carrying out the activities of providing security for the Museo de las Peregrinaciones in Santiago de Compostela, formerly entrusted to Esabe Vigilancia, took on the workers whom the latter had previously assigned to those activities.

37 It follows that the identity of an economic entity, such as that at issue in the main proceedings, which is essentially labour-intensive, can be retained if the majority of its employees are taken on by the presumed transferee.

38 Furthermore, although the Spanish Government submits in its written observations that the engagement of the staff of Esabe Vigilancia was imposed on VINSA by a collective agreement, that circumstance, in any event, has no bearing on the fact that the transfer concerns an economic entity. It must, moreover, be emphasised that the objective pursued by the collective agreement for security firms is the same as that pursued by Directive 2001/23 and that that collective agreement is expressly intended, as regards the engagement of part of the staff, to cover the case of a new tendering procedure such as that at issue in the main proceedings (see, to that effect, judgment of 24 January 2002, Temco, C‑51/00, EU:C:2002:48, paragraph 27).

39 Consequently, the answer to the first question is that Article 1(1) of Directive 2001/23 must be interpreted as meaning that that directive applies to a situation in which a contracting entity has terminated the contract for the provision of services relating to the security of buildings concluded with one undertaking and has, for the purposes of the provision of those services, concluded a new contract with another undertaking, which takes on, pursuant to a collective agreement, the majority, in terms of their number and skills, of the staff whom the first undertaking had assigned to the performance of those services, in so far as the operation is accompanied by the transfer of an economic entity between the two undertakings concerned.

40 By its second question, the referring court asks, in essence, whether the second subparagraph of Article 3(1) of Directive 2001/23 must be interpreted as precluding, under a collective agreement, the transferor and the transferee of the economic entity concerned from being exempt from the obligation to assume joint and several liability for obligations, including those relating to wages, which arose from employment contracts before that entity was transferred.

41 The first subparagraph of Article 3(1) of Directive 2001/23 lays down the principle that the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer are to be transferred to the transferee. The second subparagraph of Article 3(1) states that Member States may provide that, after the date of transfer, the transferor and the transferee are to be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.

42 In that respect, it is apparent from the order for reference that Article 44(3) of the Workers’ Statute provides that, in the case of inter vivos transfers, the transferor and the transferee are to be jointly and severally liable for three years for obligations arising from an employment contract before the transfer and which have not been fulfilled. The collective agreement for security firms does not provide for any such joint and several liability.

43 In its written observations, the Spanish Government submits that the second question falls outside of the jurisdiction of the Court of Justice. The question as formulated by the national court, it argues, requires the Court of Justice not to carry out an interpretation of the second subparagraph of Article 3(1) of Directive 2001/23, but to give a ruling on whether certain national provisions are compatible with each other. The Court of Justice does not, however, have jurisdiction to rule on the compatibility of such provisions.

44 In that respect, it should be recalled that, according to settled case-law, the jurisdiction of the Court of Justice is confined to considering provisions of EU law alone. It is for the national court to assess the scope of national provisions and the manner in which they must be applied (order of 23 May 2011, Rossius and Collard, C‑267/10 and C‑268/10, not published, EU:C:2011:332, paragraph 15).

45 In this case, in the light of the wording of that question, it must be held that, in reality, the question concerns the examination of the consistency of a provision of a collective agreement with a provision of national law. Such an examination, which implies the assessment of hierarchy of norms in national law, does not, however, come within the jurisdiction of the Court of Justice.

46 It follows that the Court of Justice does not have jurisdiction to answer the second question referred by the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia).

47 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

1. Article 1(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, must be interpreted as meaning that that directive applies to a situation in which a contracting entity has terminated the contract for the provision of services relating to the security of buildings concluded with one undertaking and has, for the purposes of the provision of those services, concluded a new contract with another undertaking, which takes on, pursuant to a collective agreement, the majority, in terms of their number and skills, of the staff whom the first undertaking had assigned to the performance of those services, in so far as the operation is accompanied by the transfer of an economic entity between the two undertakings concerned.

2. The Court of Justice of the European Union does not have jurisdiction to answer the second question referred by the Tribunal Superior de Justicia de Galicia (High Court of Justice of Galicia, Spain), by decision of 30 December 2016.

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