Workers whose employment contract was made with a company that did not actually employ them are still entitled to TUPE protections upon transfer. The "Transferor" is the company in the group that they actually worked for.Albron Catering BV v FNV Bondgenoten C-242/09 | |||
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24/11/2010
The European Court of Justice has given its preliminary ruling regarding the application of Article 3(1) of Council Directive 2001/23/EC (2001) 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). In this case the Heineken group of companies sought to deny the application of protections given under EU law to workers whose jobs had been transferred out of the company. They sought to do this by claiming that as the workers had a contract of employment with one group company (Heineken Nederlands Beheer BV) yet actually worked for another company in the group (Heinken Nederland BV). Heineken's argument was in effect that as the workers had no contractual standing with the company they had been working at, when they began to work for Albron they were in essence starting afresh. The ECJ gave that the thumbs down, interpreting the Directive purposively, that the word "transferor" applies to the company where the employees were permanently assigned, whether or not those employees had been given a contract from the company they were actually working for. From the judgement: " 29 It follows that the position of a contractual employer, who is not responsible for the economic activity of the economic entity transferred, cannot systematically take precedence, for the purposes of determining the identity of the transferor, over the position of a non-contractual employer who is responsible for that activity. 30 That analysis is supported by recital 3 of Directive 2001/23, which emphasises the need to protect employees in the event of a change of ‘employer’. That concept may, in a context such as that in the main proceedings, designate the non-contractual employer, responsible for the running of the business transferred. 31 In those circumstances, if, within a group of companies, there are two employers, one having contractual relations with the employees of that group and the other non-contractual relations with them, it is also possible to regard as a ‘transferor’, within the meaning of Directive 2001/23, the employer responsible for the economic activity of the entity transferred which, in that capacity, establishes working relations with the staff of that entity, despite the absence of contractual relations with those staff. 32 The answer to the questions referred must therefore be that, in the event of a transfer, within the meaning of Directive 2001/23, of an undertaking belonging to a group to an undertaking outside that group, it is also possible to regard as a ‘transferor’, within the meaning of Article 2(1)(a) of that directive, the group company to which the employees were assigned on a permanent basis without however being linked to the latter by a contract of employment, even though there exists within that group an undertaking with which the employees concerned were linked by such a contract of employment. The temporal effects of the present judgment" Mr Roest a member of the FNV trade union had thus sought and received a declaration from the ECJ that the transfer of the catering business in 2005 between Heineken Nederland and Albron constituted the transfer of an undertaking within the meaning of Directive 2001/23, despite their not having had contractual relations with Heineken Nederland, the company they had worked at. The employees of HNB who were assigned to Heineken Nederland therefore automatically became staff members of Albron. The ECJ applied the judgement retroactively under Article 267 TFEU according to previous decisions (Case 24/86 Blaizot and Others [1988] ECR 379, paragraph 27; Case C-415/93 Bosman [1995] ECR I-4921, paragraph 141; and Case C-402/03 Skov and Bilka [2006] ECR I-199, paragraph 50). The Court reminded itself in para 36 that in application of the general principle of legal certainty the Court may only exceptionally restrict this retroactivity; only where there was a risk of serious economic repercussions owing to the large number of legal relationships that had been entered into in good faith(Case C-423/04 Richards [2006] ECR I-3585, paragraph 42,Case C-313/05 Brzezinski [2007] ECR I-513, paragraph 56, and Case C-73/08 Bressol and Others [2010] ECR I-0000, paragraph 91). Evidence of whether any such difficulties existed was not given to the ECJ. |
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| The transcript of this case follows:- Albron Catering BV v FNV Bondgenoten C-242/09 | |||
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