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Brussels, 18.6.2007
COM(2007) 334 final
COMMISSION
REPORT
on 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
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[1]
codifies Council Directive 77/187/EEC[2], as amended
by Council Directive 98/50/EC[3].
Article 7b) of Directive 98/50/EC states: "The Commission shall submit
to the Council an analysis of the effects of the provisions of this Directive
before 17 July 2006. It shall propose any amendment which may seem necessary." That Article was incorporated into Directive
2001/23/EC as Article 10. The object of this report is therefore to examine the
provisions of the Directive in the light of the experience which has been
acquired and, in particular, of the case-law of the Court, taking into account
the answers of the Member States and the social partners to the questionnaire
which was sent to them by the Commission (cf. Annex I) with a view to proposing
possible changes. A detailed report on the implementation of the Directive in
each of the 25 Member States will be prepared by the Commission departments in
2007.
The Directive, which is
based on Article 94 of the EC Treaty, is aimed at protecting a business' employees
in the event of a change of employer and, in particular, ensuring that the employees'
rights are safeguarded. It works on the premise that there are differences in
the Member States regarding the protection of employees in this area and
stresses the impact that these differences can have on the operation of the
single market. Consequently, it concludes that it would be advisable to
harmonise that protection. The aim of harmonisation is twofold: to ensure
comparable protection of employees' rights in the Member States and to approximate
the obligations which the rules of protection place on European undertakings.
The Court of Justice
has indicated on several occasions that the rules of the Directive are to be
regarded as mandatory, in that it is not permitted to derogate from them in a
manner which is detrimental to employees. Consequently, an employee cannot waive
his rights under the Directive, and those rights cannot be limited, not even
with the employee's agreement, nor if the disadvantages resulting from
renunciation are compensated for in such a way that the employee is not placed
in a less favourable overall situation.
As of 31 August 2006,
the Directive had formed the basis for 44 judgements of the Court of Justice,
40 of which concerned preliminary questions. 30 of these judgements concern the
scope of the Directive and, in particular, the concept of "transfer".
Directive 98/50/EC, referred to above, refines this concept in the light
of the considerable volume of Court of Justice case-law. This would appear to
explain why there has been only one judgement in this connection for transfers
carried out after 17 July 2001 (the deadline for transposition of the
Directive).
The Directive applies
to transfers of undertakings, businesses, or parts of undertakings or
businesses. These can be grouped together under the more general heading
"economic entity", which, for the purposes of the Directive, is
understood to mean an organised grouping of resources which has the objective
of pursuing an economic activity.
In terms of the
activity, the essential feature which characterises an entity as an undertaking
or business is the pursuance of an economic activity, in other words, the fact
that it provides goods or services on the market. Activities involving the
exercise of public authority do not fall within the scope of the Directive.
Transfers involving
seagoing vessels are explicitly excluded from the Directive. Nevertheless,
national provisions transposing the Directive also apply to seagoing vessels in
12 Member States (cf. Annex I, question 1.5).
The term
"employee" refers to any person who, in the Member State concerned,
is protected as an employee under national employment legislation. All
employees are protected, including those employed under a fixed-term contract, and
part-time employees.
For a transfer to be
deemed to exist, two conditions must be met: a) there must be a change of
employer and b) the transferred entity must retain its identity.
There must be a change,
in terms of contractual relations, in the legal or natural person who is
responsible for the performance of the activity and who assumes the obligations
of an employer with respect to the employees of the entity.
The transfer of ownership
of the majority of the shares in an undertaking or a change in the majority of
shareholders does not constitute a transfer because the legal personality of
the employer is unchanged. The Commission considers that a revision of the
Directive, extending the definition of "transfer" to include a change
of control, as proposed by the European Confederation of Trade Unions (cf.
Annex I, question 4), is not justified at this stage. Although a change of
control can lead to changes in the undertaking, the employees' legal position vis-à-vis the employer is unchanged. In
any case, Directive 2002/14/EC[4]
makes such changes subject to appropriate information and consultation
procedures.
Retention of identity
is marked both by the continuation by the new employer of the same activities
and by the continuity of its workforce, its management staff, the way in which
its work is organized, its operating methods or the operational resources
available to it. It is up to the national courts to judge, in the light of the
following criteria, whether or not there has been a transfer:
– the type of undertaking or business;
– transfer or otherwise of tangible assets,
such as buildings or movable property;
– the value of intangible assets at the time
of the transfer;
– employment of the majority of employees by
the new employer;
– transfer or otherwise of customers;
– degree of similarity between the activities
carried out prior to and after the transfer;
– where appropriate, the period during which activities
were suspended.
These are, however, merely
single factors in the overall assessment which must be made and cannot
therefore be considered in isolation.
The Irish authorities
have proposed revising the definition of "transfer" in order to
clarify how the Directive should be applied to cases where activities are outsourced,
i.e. where an undertaking outsources a function or service to another
undertaking.
The Commission is of
the opinion that the definition of "transfer" contained in the
Directive, as interpreted by the Court of Justice, is sufficiently broad to
achieve its aim of protecting employees in the event of a change of employer in
the very different situations which are likely to exist in 25 Member States.
Consequently, the Commission considers that a revision of this concept is not
justified at present.
The Directive applies
"where and in so far as the undertaking, business or part of the
undertaking or business to be transferred is situated within the territorial
scope of the Treaty" (Article 1(2)) and in the Member States of the
European Economic Area (Norway, Iceland and Liechtenstein) (Article 68 of the
Agreement on the European Economic Area[5]).
The Commission and some
Member States (cf. Annex I, questions 1.1-1.4) have noted that national
measures transposing the Directive on cross-border transfers can give rise to
problems for which the Directive does not provide a solution. Contrary to the
Commission proposal of 1974, the Directive does not contain provisions relating
to conflicts of law. However, some of its provisions refer specifically to
national law: for example, the concept of "employee" (Article 2(1)(d)),
or the definition of "employment contract" (Article 2(2)). Similarly,
the Court of Justice has referred to the legislation of the Member States in
ruling on certain aspects of business transfers. Lastly, the Directive leaves a
number of options open to the Member States. Although private international
law, particularly the Rome Convention,[6] offers some
solutions with regard to individual employment relationships in the event of a cross-border
transfer, the collective aspects of these transfers (collective agreements,
protection of employees' representatives, obligations regarding information and
consultation) are not regulated. Consequently, the Commission considers that cross-border
transfers could be given specific attention in the Directive.
The rights and
obligations arising for the transferor from an employment contract or
employment relationship existing on the date of the transfer are, by reason of
such transfer, transferred to the transferee.
The transfer of these
rights and obligations takes place automatically, by virtue of the transfer of
the undertaking, and cannot be made contingent on the intention of the
transferor or transferee, nor on the agreement of the employees, without
prejudice, however, to the employee's right not to continue his employment
relationship with the transferee.
The transfer covers all
the employees' rights referred to in Article 3(1) which are not covered by the limitations
provided for in Article 3(4) (cf. section 3.4
below).
In theory, the
transferor is released from his obligations as an employer by the mere fact of
the transfer, without this legal effect requiring the agreement of the
employees concerned. Member States may, however, provide that, after the date
of the transfer, the transferor continues to be jointly liable with the
transferee in respect of obligations arising from an employment contract or
employment relationship existing on the date of the transfer. 14 Member States have
made provision for the joint liability of the transferor and transferee (cf.
Annex I, question 2.1).
Article 3(3) of the
Directive requires the transferee to 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.
In any case, the latter limitation comes into play only if none of the
situations referred to above occurs within a year of the transfer. Ten Member
States have made use of the option of limiting this period (cf. Annex I,
question 2.2).
The transferee is bound
only by the collective agreement in force on the date of the transfer; the
Directive does not safeguard benefits which might arise from future
developments in collective agreements.
At this stage, the
Commission does not see the need for clarification of the Directive as proposed
by the authorities of the Slovak Republic to take account of situations in
which the transfer would lead to the application of several collective
agreements. In these situations, the conclusion of a new collective agreement,
as permitted by Article 3(3), should lead to the standardisation of working
conditions.
Unless Member States provide
differently, the transfer does not apply to employees' rights to old age,
disability or survivors' benefits under supplementary company or inter-company pension
schemes outside the statutory social security schemes in Member States.
Consequently, the transferor's obligations which are based on non-statutory
schemes are not transferred. In 13 Member States, these rights are transferred
just as any other right, either because they are specifically included, or
because they are not specifically excluded. The Commission notes, however, that
in some Member States, the fact of not being specifically included is
interpreted as exclusion (cf. Annex I, question 2.3).
It should be noted at
this juncture that on 20 October 2005, the Commission presented a proposal for
a Directive of the European Parliament and of the Council on improving the
portability of supplementary pension rights[7]. This
proposal is now the subject of inter-institutional discussions.
Since the transferee takes
the place of the transferor with regard to the rights and obligations arising
from the employment relationship, the Directive does not prevent the transferee
from amending the employment relationship insofar as applicable national law
admits such amendment in cases other than transfers of undertakings.
If the employment
contract or employment relationship is terminated because the transfer, within
the meaning of the Directive, involves a substantial change in the terms and
conditions of employment to the detriment of the employee, this termination is
regarded as having been brought about by the employer. It is up to the national
courts to determine if the employment contract proposed by the transferee
involves a substantial change in the terms and conditions to the detriment of
the employee.
The Commission does not
consider it appropriate at this stage to accept the proposal put forward by the
United Kingdom to introduce the possibility for the employer to amend the employment
contract, in agreement with the employee, in order to harmonise the terms and
conditions of employment of existing employees and those who have been
transferred, on condition that those changes, taken overall, are not to the
detriment of the transferred employees. The Commission feels that harmonisation
can be achieved via collective agreements which, because of the input of the
employees' representatives, provide adequate guarantees for transferred
employees.
The transfer of an
undertaking or business or part of an undertaking or business does not in
itself constitute grounds for dismissal by the transferor or the transferee,
but this provision does not stand in the way of dismissals for economic,
technical or organisational reasons entailing changes in the workforce.
Consequently, the Directive is restricted to prohibiting dismissals purely as a
result of the transfer.
The scope of the
Directive with regard to dismissals can be restricted by the right of the Member
States not to extend the protection provided to "certain specific
categories of employees who are not covered by the laws or practice of the
Member States in respect of protection against dismissal". Only four
Member States make use of this possibility (cf. Annex I, question 2.4)
Employees unlawfully dismissed
by the transferor shortly before the transfer of the undertaking and not re-employed
by the transferee may claim, as against the transferee, that their dismissal
was unlawful.
The purpose of the
Directive is to safeguard employees' rights in the event of a change of
employer by giving them the opportunity of continuing to work for the
transferee under the same conditions as those agreed with the transferor. Its
purpose is not, however, to guarantee the continuation of the contract with the
transferor if the employee does not wish to work for the transferee. On the
assumption that the employee decides of his own free will not to maintain the
contract or employment relationship with the transferee, it is up to the Member
States to determine the status of that contract or relationship. In such cases,
they may, in particular, decide that termination of the contract or employment
relationship is attributable to the employee or the employer. They may also
stipulate that the employment contract or employment relationship must be
maintained with the transferor.
In order to guarantee
the survival of insolvent undertakings, Article 5 of the Directive gives the
Member States a degree of flexibility.
In principle, Articles
3 and 4 of the Directive do not apply to bankruptcy proceedings initiated with
a view to liquidation of the transferor's assets under the supervision of a
competent public authority. When these two Articles apply to bankruptcy proceedings
under the supervision of a competent public authority, however, Member States
may, pursuant to Article 5(2), provide that: a) certain of the transferor's
debts are not transferred to the transferee under the conditions set out in
that Article; and/or b) that the employee's terms and conditions of employment
are altered, under certain conditions.
11 Member States have national
provisions which apply Articles 3 and 4 of the Directive to transfers in which
the transferor is the subject of bankruptcy proceedings. Six Member States have
made use of the possibilities offered by Article 5(2) (cf. Annex I,
questions 2.6 and 2.7). As regards the practical effects of these provisions,
the Member States do not possess any data on how many additional undertakings
have been saved from bankruptcy by the application of these derogations (cf.
Annex I, question 2.8).
Italy is the only
Member State whose national legislation (as of 17 July 1998) contains a
definition of a "situation of serious economic crisis" which
satisfies the conditions of Article 5(3), and which could therefore
legitimately permit alterations to the terms and conditions of employment pursuant
to Article 5(2)(b). However, the Commission considers that Italian legislation
goes well beyond simple alteration of the terms and conditions of employment,
since it excludes employees of enterprises which are in crisis from the
benefits of Articles 3 and 4 of the Directive. In these circumstances, the
Commission decided to allow Italy to present its comments on the matter pursuant
to Article 226 of the EC Treaty (infringement no. 2005/2433).
Consequently, a report on the effects of this provision as provided for in the
second subparagraph of Article 5(3) is not applicable.
Article 6 of the
Directive seeks to guarantee the continuity of the representation function and
the protection of the persons concerned. As regards continuity of the
representation function, it must be borne in mind that if the transferred business
preserves its autonomy, in other words, it continues to exist as a distinct
operational unit and is not absorbed by a more complex structure, then the status
and function of the representatives or of the representation of the employees affected
by the transfer, as established by the national legislation of the Member
States, must be preserved. However, this provision does not apply if, pursuant
to national legislation, the conditions for the re-appointment of the employees' representatives are fulfilled.
Employees'
representatives who are affected by a transfer and whose mandate expires as a
result of that transfer "shall continue to enjoy the protection provided
by the laws, regulations, administrative provisions or practice of the Member
States".
The transferor and the
transferee are required to provide certain items of information to the
representatives of their respective employees. Whereas the obligation to report
is general, the obligation concerning consultation is limited. The latter obligation
exists where the transferor or the transferee envisages any measures in
relation to the employees (for example, a reduction in the workforce). The
consultation takes place "with a view to reaching an agreement".
Member States are
required to take all appropriate measures to ensure that the representatives of
employees are appointed with a view to ensuring the information and
consultation referred to in Article 7. The Directive gives the Member States considerable
latitude when defining the procedures for nominating employees'
representatives.
The information and
consultation obligations apply irrespective of whether the decision resulting
in the transfer is taken by the employer or an undertaking controlling the
employer.
Member States may limit
the above-mentioned obligations to undertakings or businesses which, in terms
of the number of employees, meet the conditions for the election or nomination
of a collegiate body representing the employees. Six Member States make use of
this option (cf. Annex I, question 3.2).
In any case, in the
absence of employees' representatives in an undertaking or business, the
employees concerned must be informed in advance.
The French authorities believe
that, notwithstanding the information which must be given to the employees'
representatives, employees should be informed individually by the transferee about
the various rights which become applicable after the transfer. The Commission,
however, takes the view that the existing information obligations are
sufficient to help employees to safeguard their rights, without imposing
excessive burdens on employers. The Member States are, however, free, where they
consider it appropriate, to extend these obligations at national level pursuant
to Article 8 of the Directive. Consequently, the Commission considers that a
revision of the Directive on this point is not justified at this stage.
Nearly 30 years after
its adoption, the Commission believes that Directive 77/187/EEC continues to
play a key role in protecting employees' rights. This text introduced the
principle of the retention of employment contracts despite a change in the
legal personality of the employer into the legal orders of many Member States
which did not previously recognise that principle. The 1998 revision also made
it possible, on the one hand, to refine the concept of "transfer" in
the light of the considerable volume of Court of Justice case law and, on the
other, to allow the Member States a degree of flexibility when implementing
certain provisions, particularly in cases where the transferor is bankrupt.
By achieving the
correct balance between the protection of employees and the freedom to pursue
an economic activity, the Directive has made a major contribution to ensuring that
numerous restructuring operations in Europe are socially more acceptable.
The Commission
believes, however, that the absence of explicit treatment of cross-border
transfers in the Directive, which nevertheless applies to transfers in which
the undertaking being transferred falls within the territorial scope of the
Treaty, can cause uncertainty on the part of employers and employees.
Furthermore, the Commission believes that the enlargement of the EU and the
consolidation of the internal market, globalisation and the facilitation of
cross-border activities by the Regulations on the European Company[8]
and on the European Cooperative Society,[9] or by the
Directive on cross-border mergers,[10] are factors
liable to increase the phenomenon of cross-border transfers. Consequently, the
Commission believes that the Directive could be amended with a view to clarifying
this point, thereby contributing to the improvement of the acquis communautaire. To this end, it intends to consult the social
partners pursuant to Article 138(2) of the Treaty.
Technical annex
Overview of the replies to the questionnaire on 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
|
Questions 1.1 and 1.2 |
Do the national measures adopted in your country to
implement the Directive apply to transfers of undertakings from your country
to another Member State or to another country of the EEA (Article 1(2))? / to
countries outside the EEA (Article 1(2))? |
|
Belgium |
They apply to any employer subject to the 1968 Law
on Collective Agreements. In the case of cross-border transfers only the
party located in Belgium will be subject to Belgian law. |
|
Czech Republic |
They apply to all labour law
relationships subject to the Labour Code. Changes of place of work in
connection with transfers involve termination of the employment relationship
for organisational reasons with three months' notice and entitlement to
severance pay. |
|
Denmark |
Yes, if the conditions are met for the
employees concerned. |
|
Germany |
Yes, provided German law is applicable
under private international law. |
|
Estonia |
Yes, provided the employment contract is
concluded under Estonian law. |
|
Greece |
The business to be transferred must be situated
within the EU. |
|
Spain |
Yes. The starting point is the Rome Convention. The
applicable law will depend on the time of transfer: before or after the
change of place of work. |
|
France |
In principle yes, but account should be taken of
possible mobility clauses. |
|
Ireland |
Yes. They are not specifically excluded. |
|
Italy |
Yes, to the countries where the Rome Convention
applies. |
|
Cyprus |
Yes, no special exclusion. |
|
Latvia |
Yes. |
|
Lithuania |
Yes. |
|
Luxembourg |
Yes, they apply to undertakings located in
Luxembourg. |
|
Hungary |
Yes. Hungary's provisions apply to all
employment relationships on the basis of which work is performed in Hungary and
also to work performed temporarily abroad. |
|
Malta |
Yes, they apply to undertakings situated in the EEA. |
|
Netherlands |
Yes, there is no special exclusion. |
|
Austria |
Yes, but not outside Austria. Territoriality
principle. |
|
Poland |
No specific provisions. Need to use
international private law. |
|
Portugal |
Yes, by virtue of the Rome Convention. |
|
Slovenia |
Yes. Labour law applies to employment relationships
between employers that have their registered office or residence in Slovenia
and workers employed by them. It also applies to employment relationships
between foreign employers and workers that are based on an employment
contract in Slovenia. |
|
Slovak Republic |
Yes, no special exclusion. |
|
Finland |
No specific provision. |
|
Sweden |
Not explicitly addressed. It would be for the ECJ to
rule. |
|
United Kingdom |
Yes, to transfers of businesses situated in the UK immediately
before the transfer. |
|
Iceland |
They Act apply to all countries of the EEA, to the
Faeroe Islands and to member states of the Convention establishing the
European Free Trade Association. |
|
Liechtenstein |
They do not make a difference
between transfers
of undertakings from Liechtenstein to another EEA Member State or to countries outside the EEA. For
cross-border transfers § 1173a Art. 43 ff ABGB and the regulations of the IPRG have to be considered. |
|
Norway |
The issue of cross border transfers not explicitly
addressed in the national rules or in the preparatory works. |
|
Question 1.3 |
Are the provisions of the Directive suitable for the
cross-border transfers mentioned in points 1.1 and 1.2? |
|
Belgium |
There should be no major problems in case of transfers
within the EEA. Possible problems in the case of non-EEA countries. |
|
Czech Republic |
Yes. |
|
Denmark |
Yes. |
|
Germany |
Yes. |
|
Estonia |
No problems detected so far. |
|
Greece |
Yes. |
|
Spain |
The problems raised by the Directive are general
(not specific to cross-border transfers) and stem from the diversity of
situations that can arise. |
|
France |
No. The absence of express provisions on conflict of
law creates problems. |
|
Ireland |
No. Greater clarity is needed about the applicable
law, jurisdiction and enforcement. |
|
Italy |
The Rome Convention suffices. |
|
Cyprus |
No. |
|
Latvia |
No problems detected so far. |
|
Lithuania |
Yes. |
|
Luxembourg |
Yes. |
|
Hungary |
No problem so far. |
|
Malta |
No obstacle to application of the national rules
implementing the Directive. |
|
Netherlands |
No practical experience. |
|
Austria |
Yes. |
|
Poland |
Yes. The Rome Convention suffices. |
|
Portugal |
The Rome Convention applies. |
|
Slovenia |
Slovene labour law does not cover enforcement of
rights in case of cross-border transfers. It would be necessary to apply the
rules of the different legal systems involved. |
|
Slovak Republic |
No. |
|
Finland |
The Directive should state that it
applies to cross-border situations. |
|
Sweden |
No practical experience. |
|
United Kingdom |
There would intrinsically be greater difficulties in
enforcing rights against foreign-based transferees. |
|
Iceland |
No particular problems or conflicts that have arisen
in connection with these specific provisions |
|
Liechtenstein |
Yes |
|
Norway |
As long as there is no court cases on cross border
transfers in Norway, we do not know the effects of the provisions in the
Directive (or the Norwegian implementation of the Directive). A discussion
should be based on the eventual problems that do occur in practice. Therefore
Norway sees the need for a study of the effects of the Directive when it
comes to protection of workers in the case of cross border transfers. |
|
Question 1.4 |
Do you consider that cross-border transfers from
your country or to your country are increasing in number or are likely to
increase in number? |
|
Belgium |
They are likely to increase. |
|
Czech Republic |
Likely to increase. |
|
Denmark |
Increase expected. |
|
Germany |
Likely to increase. |
|
Estonia |
The employers' confederation has
predicted an increase. |
|
Greece |
Currently no cases. |
|
Spain |
Likely to increase. |
|
France |
No information available. |
|
Ireland |
Increase expected. |
|
Italy |
No specific information available. |
|
Cyprus |
Not likely to increase due to the geographical
characteristics of the island. |
|
Latvia |
No information available. |
|
Lithuania |
No information available. |
|
Luxembourg |
No such trend has been noted. |
|
Hungary |
No data on transfers. Stabilisation of
the number of foreign companies in Hungary. Increase in the number of
Hungarian companies abroad. |
|
Malta |
No data available. |
|
Netherlands |
No. |
|
Austria |
Likely to increase. |
|
Poland |
No cases reported. Difficult to
speculate. |
|
Portugal |
No cases reported. |
|
Slovenia |
Likely to increase. |
|
Slovak Republic |
Likely to increase. |
|
Finland |
Likely to increase. |
|
Sweden |
No statistics available. |
|
United Kingdom |
No statistics available, but likely to increase. |
|
Iceland |
No significant changes have been noted. |
|
Liechtenstein |
There are no statistics concerning cross-border
transfers. |
|
Norway |
In Norway there are no specific statistics on
"transfers of undertakings" available. |
|
Question 1.5 |
Do the national measures adopted in your country to
implement the Directive apply to seagoing vessels (Article 1(3))? |
|
Belgium |
No. |
|
Czech Republic |
Yes. |
|
Denmark |
No. |
|
Germany |
Yes. |
|
Estonia |
Yes. |
|
Greece |
No. |
|
Spain |
Yes. |
|
France |
No. |
|
Ireland |
No. |
|
Italy |
Yes, except for possible specific rules in the
Navigation Code. |
|
Cyprus |
No. |
|
Latvia |
No. |
|
Lithuania |
Yes. |
|
Luxembourg |
No. |
|
Hungary |
Yes. |
|
Malta |
No. |
|
Netherlands |
No. |
|
Austria |
Yes. |
|
Poland |
Yes. |
|
Portugal |
Yes. |
|
Slovenia |
No. |
|
Slovak Republic |
No. |
|
Finland |
Specific provisions in force. |
|
Sweden |
Yes. |
|
United Kingdom |
Yes, but there are limitations if a UK-registered
ship situated in the UK immediately before the transfer ceases to be
UK-registered as a result of the transfer. |
|
Iceland |
No. |
|
Liechtenstein |
The Principality of Liechtenstein being a midland,
the exemption in Article 1 (3) of the Directive has not been implemented into
national law . |
|
Norway |
No. |
|
Question 2.1 |
Do your national provisions provide for joint
liability from transferor and transferee 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 (Article 3(1))? |
|
Belgium |
Yes, except debts from supplementary pension
schemes. |
|
Czech Republic |
No. |
|
Denmark |
No. |
|
Germany |
Yes, for debts which arose before the
transfer and are due to be met within one year after the transfer. |
|
Estonia |
Yes, for debts which arose before the
transfer and are due to be met within one year after the transfer. |
|
Greece |
Yes. |
|
Spain |
Yes, for 3 years after the transfer (or 4 years in the
case of social security debts). |
|
France |
Yes, except in the cases of insolvency proceedings
and of successive contracts without any direct contractual link between
transferor and transferee. |
|
Ireland |
No. |
|
Italy |
Yes. |
|
Cyprus |
No, only by agreement between transferor and
transferee. |
|
Latvia |
No. |
|
Lithuania |
No. Only subsidiary responsibility for three years. |
|
Luxembourg |
Yes. |
|
Hungary |
Yes, provided claims are enforced within
one year after the transfer. |
|
Malta |
No. |
|
Netherlands |
Yes, for one year after the transfer. |
|
Austria |
Yes. |
|
Poland |
Only for transfers of parts of
undertakings. Not for transfers of whole undertakings. |
|
Portugal |
Yes, for one year after the transfer. |
|
Slovenia |
Only for claims made prior to the transfer and
claims due to termination of contracts. |
|
Slovak Republic |
No. |
|
Finland |
Yes. |
|
Sweden |
Yes, except insolvency situations or old-age,
invalidity or survivors' benefits. |
|
United Kingdom |
No, except: a) compensation for failure to consult
or inform and b) in the case of public employers, liabilities for injuries or
disease which arose before the transfer. |
|
Iceland |
Yes. |
|
Liechtenstein |
Yes. |
|
Norway |
Yes. |
|
Question 2.2 |
Do your national provisions implementing Article
3(3) limit the period for observing, following the transfer, the terms and
conditions agreed in a collective agreement? If the reply is yes, please
indicate the period. |
|
Belgium |
No. |
|
Czech Republic |
No. |
|
Denmark |
No. |
|
Germany |
Yes: one year. |
|
Estonia |
No. |
|
Greece |
No. |
|
Spain |
No. |
|
France |
Yes: one year plus three months' notice. |
|
Ireland |
No. |
|
Italy |
No. |
|
Cyprus |
Minimum period for observing any collective
agreement is one year. |
|
Latvia |
Provisions of any collective agreement
cannot be amended to the detriment of the employee for one year. |
|
Lithuania |
No, except in bankruptcy proceedings. |
|
Luxembourg |
No. |
|
Hungary |
Yes: one year. |
|
Malta |
No. |
|
Netherlands |
No. |
|
Austria |
Yes: one year. |
|
Poland |
Yes: one year. |
|
Portugal |
Yes: one year. |
|
Slovenia |
Yes: one year. |
|
Slovak Republic |
No. |
|
Finland |
No. |
|
Sweden |
Yes: one year. |
|
United Kingdom |
No. |
|
Iceland |
No. |
|
Liechtenstein |
Yes: One year. |
|
Norway |
Yes. According to Section 16-2, 2nd
paragraph, the transferee must observe the terms and conditions agreed to in
a collective agreement prior to the transfer, unless the transferee
explicitly declares in writing within three weeks of the transfer, that he
does not want to be bound by the agreement. However, the transferred workers
are entitled to keep their individual conditions of employment that arise
from the collective agreement agreed to by the transferor, until the
collective agreement expires, or a new collective agreement is entered into
by the transferee and the transferred employees. |
|
Question 2.3 |
Does the transfer of rights and obligations under
the national provisions implementing paragraphs 1 and 3 of Article 3 apply in
relation to employees' rights to old-age, invalidity or survivors' benefits
under supplementary company or inter-company pension schemes outside the
statutory social security schemes (Article 3(4)(a))? |
|
Belgium |
No: specifically excluded unless there is a
collective agreement to the contrary. |
|
Czech Republic |
Those schemes are not regulated by
legislation in the Czech Republic. At present there is only legislation on supplementary
pension schemes with a State contribution. |
|
Denmark |
No, not specifically included. |
|
Germany |
Yes. |
|
Estonia |
Yes: no specific rules. |
|
Greece |
Yes. |
|
Spain |
Yes: specifically included. |
|
France |
Yes. |
|
Ireland |
No, not specifically included. |
|
Italy |
Yes: all rights are transferred. |
|
Cyprus |
No. |
|
Latvia |
Yes, not specifically excluded. |
|
Lithuania |
Yes, if they are part of a collective agreement. |
|
Luxembourg |
No, not specifically included. |
|
Hungary |
No. The supplementary pension funds
regulated in Hungary are not company or inter-company pension schemes since
they are not linked to employment. |
|
Malta |
Yes. |
|
Netherlands |
Yes, unless the transferee itself operates a pension
scheme, in which case it can choose which of the two. |
|
Austria |
Yes, but the transferee has the right to object to
the transfer sufficiently in advance. |
|
Poland |
Yes. |
|
Portugal |
Yes. Since they may be established by collective
agreement, they are transferred in the same way. |
|
Slovenia |
No, there is no regulation on this matter. |
|
Slovak Republic |
No. They are not organised/managed by the employer. |
|
Finland |
Yes, they are considered employment
benefits that are transferred just like all other rights and obligations. |
|
Sweden |
No. However, if they are established in a collective
agreement they are transferred in the same way. |
|
United Kingdom |
No, but if there is a transfer the transferee has to
provide a minimum level of pension provision to employees who were entitled
to participate in a scheme run by the transferor. |
|
Iceland |
No. |
|
Liechtenstein |
No. |
|
Norway |
Yes, they are transferred to the new employer.
However, the transferee has the option of applying existing pension schemes
to the transferred employees after the transfer. In situations where the
pension schemes cannot be transferred (e.g. transfers from public to private
sector, where membership in the State pension fund cannot be upheld), the
transferee is obliged to ensure that the transferred workers' are covered by
another group pension scheme. |
|
Question 2.4 |
Has the possibility laid down in the second
subparagraph of Article 4(1)[11]
been used in your country? If the reply is yes, in which way? |
|
Belgium |
No. |
|
Czech Republic |
No. |
|
Denmark |
No. |
|
Germany |
No. |
|
Estonia |
No. |
|
Greece |
No. |
|
Spain |
Yes: for senior managers. |
|
France |
No. |
|
Ireland |
No. |
|
Italy |
No. |
|
Cyprus |
No. |
|
Latvia |
No. |
|
Lithuania |
No. |
|
Luxembourg |
No. |
|
Hungary |
Yes: for fixed-term employment
contracts. |
|
Malta |
No. |
|
Netherlands |
No. |
|
Austria |
No. |
|
Poland |
No. |
|
Portugal |
No. |
|
Slovenia |
No. |
|
Slovak Republic |
No. |
|
Finland |
No. |
|
Sweden |
Yes: for managers, relatives of the employer,
employees working in the employer's household and employees who are employed
for work with special employment support or in sheltered employment. |
|
United Kingdom |
Yes: for employees who do not have one year's
qualifying service with their employer. |
|
Iceland |
No. |
|
Liechtenstein |
No. |
|
Norway |
No. |
|
Question 2.5 |
Do your national provisions implementing Articles 3
and 4 apply to transfers of undertakings where the transferor is the subject
of bankruptcy proceedings or any analogous insolvency proceedings mentioned
in Article 5(1)? |
|
Belgium |
Not in cases of bankruptcy ("faillite"),
but they apply in cases of pre-bankruptcy ("concordat judiciaire"). |
|
Czech Republic |
Yes. |
|
Denmark |
Yes. |
|
Germany |
Yes. |
|
Estonia |
Yes, if the trustee transfers employment
contracts. |
|
Greece |
No. |
|
Spain |
Yes. |
|
France |
Not in cases of administration ("redressement
judiciaire") or receivership ("liquidation judiciaire") but
they apply in cases of preservation ("sauvegarde"). |
|
Ireland |
No. |
|
Italy |
No. |
|
Cyprus |
No. |
|
Latvia |
No. |
|
Lithuania |
Yes. However, the administrator can dismiss
employees. |
|
Luxembourg |
Yes. |
|
Hungary |
Yes. |
|
Malta |
No. |
|
Netherlands |
No. |
|
Austria |
No. |
|
Poland |
Yes. |
|
Portugal |
Yes. |
|
Slovenia |
No. |
|
Slovak Republic |
No. |
|
Finland |
No, unless the transferor and transferee
were under the same control. |
|
Sweden |
No. |
|
United Kingdom |
Yes. |
|
Iceland |
No. |
|
Liechtenstein |
No. |
|
Norway |
No. |
|
Question 2.6 |
Has the possibility laid down in Article 5(2)(a)[12]
been used in your country? If the reply is yes, in which way? |
|
Belgium |
Yes. It is provided for in Article 8 bis of
collective agreement (CCT) No 32 bis in cases of pre-bankruptcy
("concordat judiciaire"). |
|
Czech Republic |
No. Normal rules on transfers apply. |
|
Denmark |
No. Normal rules on transfers apply. |
|
Germany |
Yes, through Court interpretations of
national law. |
|
Estonia |
No. |
|
Greece |
No. |
|
Spain |
Yes. |
|
France |
Yes. |
|
Ireland |
No. |
|
Italy |
No. |
|
Cyprus |
No. |
|
Latvia |
No. |
|
Lithuania |
No. Normal rules on transfers apply. |
|
Luxembourg |
No. Normal rules on transfers apply. |
|
Hungary |
No. Normal rules on transfers apply. |
|
Malta |
No. |
|
Netherlands |
No. |
|
Austria |
No. |
|
Poland |
Yes. The purchaser of a bankrupt company
purchases it free of liabilities and is not responsible for the obligations
of the bankrupt. |
|
Portugal |
No. Normal rules on transfers apply. |
|
Slovenia |
No. |
|
Slovak Republic |
No. |
|
Finland |
No. |
|
Sweden |
No. |
|
United Kingdom |
Yes, for certain pre-existing debts. |
|
Iceland |
No. |
|
Liechtenstein |
No. |
|
Norway |
No. |
|
Question 2.7 |
Has the possibility laid down in Article 5(2)(b)[13]
been used in your country? If the reply is yes, in which way? |
|
Belgium |
Yes. It is provided for in Article 8 bis of
collective agreement (CCT) No 32 bis in cases of pre-bankruptcy
("concordat judiciaire"). |
|
Czech Republic |
No. |
|
Denmark |
No. |
|
Germany |
Yes: the insolvency administrator can
give notice of dismissals in view of the transfer. |
|
Estonia |
No. |
|
Greece |
No. |
|
Spain |
Yes. |
|
France |
No. |
|
Ireland |
No. |
|
Italy |
Yes, through use of the possibility granted by
Article 5(3). |
|
Cyprus |
No. |
|
Latvia |
No. |
|
Lithuania |
Nothing stops parties from concluding a collective
agreement to this effect. |
|
Luxembourg |
Yes. |
|
Hungary |
No. Normal rules on transfers apply. |
|
Malta |
No. |
|
Netherlands |
No. |
|
Austria |
No. |
|
Poland |
No. |
|
Portugal |
No. Normal rules on transfers apply. |
|
Slovenia |
No. |
|
Slovak Republic |
No. |
|
Finland |
No. |
|
Sweden |
No. |
|
United Kingdom |
Yes. |
|
Iceland |
No. |
|
Liechtenstein |
No. |
|
Norway |
No. |
|
Question 2.8 |
Do you consider that the number of insolvent
undertakings that have survived in your country has increased thanks to the
use of the derogations provided for in Article 5(2)? |
|
Belgium |
No information available. |
|
Czech Republic |
N.A. |
|
Denmark |
N.A. |
|
Germany |
The legislation in place was already in
force in Germany before. Therefore no change has been noted. |
|
Estonia |
N.A. |
|
Greece |
N.A. |
|
Spain |
No information available, but it appears to have
been useful. |
|
France |
N.A. |
|
Ireland |
N.A. |
|
Italy |
Yes, but there are no specific data. |
|
Cyprus |
N.A. |
|
Latvia |
N.A. |
|
Lithuania |
N.A. |
|
Luxembourg |
No information available. |
|
Hungary |
N.A. |
|
Malta |
N.A. |
|
Netherlands |
N.A. |
|
Austria |
N.A. |
|
Poland |
No information available. |
|
Portugal |
N.A. |
|
Slovenia |
N.A. |
|
Slovak Republic |
N.A. |
|
Finland |
N.A. |
|
Sweden |
N.A. |
|
United Kingdom |
Too early to say. Changes have only just been
introduced. |
|
Iceland |
N.A. |
|
Liechtenstein |
N.A. |
|
Norway |
N.A. |
|
Question 3.1 |
Has the possibility laid down in Article 7(3)[14]
been used in your country? If the reply is yes, in which way? |
|
Belgium |
No. |
|
Czech Republic |
No. |
|
Denmark |
No. |
|
Germany |
Yes. |
|
Estonia |
No. |
|
Greece |
No. |
|
Spain |
No. |
|
France |
No. |
|
Ireland |
No. |
|
Italy |
No. |
|
Cyprus |
No. |
|
Latvia |
No. |
|
Lithuania |
No. |
|
Luxembourg |
No. No such recourse to an arbitration board is
provided for in Luxembourg. |
|
Hungary |
No. There is no such arbitration board. |
|
Malta |
No. |
|
Netherlands |
No. |
|
Austria |
No. |
|
Poland |
No. No such recourse to an arbitration
board is provided for in Poland. |
|
Portugal |
No. No such recourse to an
arbitration board is provided for in
Portugal. |
|
Slovenia |
No. |
|
Slovak Republic |
No. |
|
Finland |
No. |
|
Sweden |
No. |
|
United Kingdom |
No. |
|
Iceland |
No. |
|
Liechtenstein |
No. |
|
Norway |
No. The Norwegian
legislation does not provide for any such arbitration board. |
|
Question 3.2 |
Has the possibility laid down in Article 7(5)[15]
been used in your country? If the reply is yes, in which way? |
|
Belgium |
No. |
|
Czech Republic |
No. |
|
Denmark |
No. |
|
Germany |
Yes: undertakings with more than 20
employees. |
|
Estonia |
No. |
|
Greece |
No. |
|
Spain |
No limit for information purposes. For consultation
purposes in certain circumstances: undertakings with more than 6 employees. |
|
France |
Yes. |
|
Ireland |
No. |
|
Italy |
No. |
|
Cyprus |
No. |
|
Latvia |
Consultations take place only with
employees' representatives (who are elected in undertakings with more than 5
workers). |
|
Lithuania |
No. |
|
Luxembourg |
No. |
|
Hungary |
No. |
|
Malta |
Yes: undertakings with more than 20 employees. |
|
Netherlands |
No. |
|
Austria |
No. |
|
Poland |
No. |
|
Portugal |
No. |
|
Slovenia |
No. |
|
Slovak Republic |
No. |
|
Finland |
Yes: the Act on Cooperation within Undertakings
applies to enterprises with at least 30 employees. |
|
Sweden |
No. |
|
United Kingdom |
No. |
|
Iceland |
No. |
|
Liechtenstein |
No. |
|
Norway |
No. |
|
Questions 4.1 and 4.2 |
Do you consider that any provision in the Directive
needs clarification or improvement? If the reply is yes, please specify which
provisions and the problems encountered. Do you have any concrete drafting proposal to
overcome the problems identified? |
|
Belgium |
No. |
|
Czech Republic |
No. |
|
Denmark |
No. |
|
Germany |
|
|
Estonia |
The Estonian Employers' Confederation
considers that the broad range of possible interpretations of Article 1 of
the Directive cause legal uncertainty and court actions. The Confederation of
Estonian Trade Unions sees no need to amend the Directive. |
|
Greece |
No. |
|
Spain |
No. |
|
France |
In addition to the information due to employees'
representatives, each employee should be informed by the transferee about his
or her rights after the transfer. |
|
Ireland |
Yes. The Directive does not address the issue of
outsourcing. The exclusions arising as a result of application of the principles
of the Süzen ECJ ruling are unfair and particularly victimise low-paid
workers. It is essential that measures be introduced to recognise that the
work performed by a worker is an economic asset with potential to generate
profit. |
|
Italy |
|
|
Cyprus |
No. |
|
Latvia |
No. |
|
Lithuania |
No. |
|
Luxembourg |
No. |
|
Hungary |
No. |
|
Malta |
No. |
|
Netherlands |
No. |
|
Austria |
No. |
|
Poland |
No. |
|
Portugal |
The issue of cross-border transfers creates doubts. |
|
Slovenia |
No. |
|
Slovak Republic |
Yes, it is necessary to clarify Article 3(3) of the
Directive in cases where several legal regimes under several collective
agreements are transferred to an acquirer (transferee employer) and each of
the collective agreements will have come into force on a different date. Is
this a case of employee discrimination by the acquirer (transferee employer)?
Does the collective agreement grant the most favourable conditions to
employees, e.g. after three undertakings are merged if applicable to all
employees of a newly established (merged) undertaking? |
|
Finland |
Yes. Cross-border application of the
Directive could be clarified. |
|
Sweden |
No. Possible problems and solutions could be
discussed within the Group of Experts. |
|
United Kingdom |
The UK Government considers that Article 3(1), as
interpreted by the ECJ and the UK courts, places unnecessary and unhelpful
restrictions on employers and employees preventing them from agreeing to vary
employment contracts where the purpose of the variation is to harmonise the
terms and conditions of transferring employees with those of employees
already employed by the transferee. Because such harmonisation is not
currently permissible, transferees are required to operate at least two sets
of terms and conditions following a transfer. And because some transferees
(especially those providing contract services to employers) can be involved
in many transfers, there is scope for three of more sets of terms and
conditions to apply across a group of employees doing the same or similar
jobs. The following new second subparagraph should be
inserted in Article 3(1): “This Article shall not prevent the employer and his
employee whose contract of employment is, or will be, transferred from
agreeing a variation of that contract by reason of such transfer, provided
the sole or principal purpose of the variation is to effect harmonisation and
provided the employee is no worse off overall as a result. “Harmonisation”
means a measure intended to increase uniformity in the terms and conditions
of employees, or prospective employees, of the transferee.” The existing second subparagraph of Article 3(1)
would then become the third subparagraph. |
|
UEAPME |
No. |
|
ETUC |
Some of the measures safeguarding employees' rights
provided for in the Directive (Articles 3(1), 3(2), 6 and 7) should be
extended to cases of change of ownership through share purchases. |
|
Iceland |
The provisions are generally clear. It is up to the
courts to interpret the provisions if problems or conflicts arise. |
|
Liechtenstein |
For the moment, there is no need for clarification
or improvement. |
|
Norway |
Norway first of all sees the need for more
information of the practical problems with cross border transfers. A
discussion should be based on the problems that do occur in cases in
practical life, and especially what kind of solutions the social partners
tend to reach through negotiations instead of going to court. Norway
therefore welcomes the result/report from the Commission of the effect of the
Directive. Hopefully the report will identify eventually problems and/or
needs for clarifications or improvements that might be of interest to discuss
in the group of experts in order to find possible solutions |
[1] OJ L 82, 22.3.2001, p. 16.
[2] OJ L 61, 05.3.77, p. 26. This
Directive is one of the measures provided for in the EEC's Social Action Programme
of 21 January 1974.
[3] OJ L 201, 17.7.1998, p. 88.
[4] Directive 2002/14/EC of the
European Parliament and of the Council of 11 March 2002 establishing a general
framework for informing and consulting employees in the European Community, OJ
L 80, 23.3.2002, p. 29.
[5] OJ L 1 of 3.1. 1994, p. 3.
[6] Rome Convention of 1980 on the
law applicable to contractual obligations (consolidated version), OJ C 27
of 26.1.1998, p. 34-46.
[7] COM (2005) 507 final
[8] Council Regulation (EC) No.
2157/2001 of 8 October 2001 on the Statute for a European Company (SE) (OJ L
294, 10.11.2001, p. 1)
[9] Council Regulation (EC) No.
1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE)
(OJ L 207, 18.8.2003, p. 1)
[10] Directive 2005/56/EC of the
European Parliament and of the Council of 26 October 2005 on cross-border
mergers of limited liability companies (OJ L 310, 25.11.2005, p.1)
[11] 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.
Member States may provide that the first subparagraph shall not apply to
certain specific categories of employees who are not covered by the laws or
practice of the Member States in respect of protection against dismissal.
[12] Where Articles 3 and 4 apply to a transfer during insolvency proceedings
which have been opened in relation to a transferor (whether or not those
proceedings have been instituted with a view to the liquidation of the assets
of the transferor) and provided that such proceedings are under the supervision
of a competent public authority (which may be an insolvency practitioner
determined by national law) a Member State may provide that:
(a) notwithstanding Article 3(1), the transferor's debts arising from any
contracts of employment or employment relationships and payable before the
transfer or before the opening of the insolvency proceedings shall not be
transferred to the transferee, provided that such proceedings give rise, under
the law of that Member State, to protection at least equivalent to that
provided for in situations covered by Council Directive 80/987/EEC of 20
October 1980 on the approximation of the laws of the Member States relating to
the protection of employees in the event of the insolvency of their employer.
[13] Where Articles 3 and 4 apply to a transfer during insolvency proceedings
which have been opened in relation to a transferor (whether or not those
proceedings have been instituted with a view to the liquidation of the assets
of the transferor) and provided that such proceedings are under the supervision
of a competent public authority (which may be an insolvency practitioner
determined by national law) a Member State may provide that:
(b) the transferee, transferor or person or persons exercising the transferor's functions, on the one hand, and the representatives of the employees on the other hand may agree alterations, in so far as current law or practice permits, to the employees' terms and conditions of employment designed to safeguard employment opportunities by ensuring the survival of the undertaking, business or part of the undertaking or business.
[14] Member States whose laws, regulations or administrative provisions provide
that representatives of the employees may have recourse to an arbitration board
to obtain a decision on the measures to be taken in relation to employees may
limit the obligations laid down in paragraphs 1 and 2 to cases where the
transfer carried out gives rise to a change in the business likely to entail
serious disadvantages for a considerable number of the employees.
The information and consultations shall cover at least the measures envisaged
in relation to the employees.
The information must be provided and consultations take place in good time
before the change in the business as referred to in the first subparagraph is
effected.
[15] Member States may limit the obligations laid down in paragraphs 1, 2 and 3
to undertakings or businesses which, in terms of the number of employees, meet
the conditions for the election or nomination of a collegiate body representing
the employees.