Key facts of the case:
After about twenty years of service as a cleaner in State schools, but employed by a municipality, the applicant of the main proceedings was transferred to the State as the mew employer; due to the fact that the applicant was placed on a salary scale corresponding only to nine years of service she suffered a significant loss of income and brought action. The court referred first to the Iatalian constitutional court (which did not finf an infringement of principles of legal certainty or effective judicial protection) and then to ECJ.
Results (sanctions) and key consequences of the case:
- The takeover by a public authority of a Member State of staff employed by another public authority and entrusted with the supply to schools of auxiliary services including, in particular, tasks of maintenance and administrative assistance constitutes a transfer of an undertaking falling within 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 businesses, where that staff consists in a structured group of employees who are protected as workers by virtue of the domestic law of that Member State.
- Where a transfer within the meaning of Directive 77/187 leads to the immediate application to the transferred workers of the collective agreement in force with the transferee, and where the conditions for remuneration are linked in particular to length of service, Article 3 of that directive precludes the transferred workers from suffering, in comparison with their situation immediately before the transfer, a substantial loss of salary by reason of the fact that their length of service with the transferor, equivalent to that completed by workers in the service of the transferee, is not taken into account when determining their starting salary position with the latter. It is for the national court to examine whether, at the time of the transfer at issue in the main proceedings, there was such a loss of salary.