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CJEU - Case C-426/11 / Opinion

Alemo-Herron and Others v Parkwood Leisure Ltd

Policy area:
Employment and social policy
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Decision
Decision date:
19/02/2013
Key facts of the case:

 

Reference for a preliminary ruling: Supreme Court of the United Kingdom - United Kingdom.
Transfer of undertakings - Directive 2001/23/EC - Safeguarding of employees’ rights - Collective agreement applicable to the transferor and to the employee at the time of the transfer.

Outcome of the case:

In the light of the foregoing, I propose that the Court reply as follows to the questions referred by the Supreme Court:

(1) Article 3(3) 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 not, in principle, precluding Member States from allowing dynamic clauses referring to existing and future collective agreements that are freely agreed between the parties to a contract of employment to be transferred as a result of the transfer of an undertaking.

(2) European Union law, and in particular Article 16 of the Charter of Fundamental Rights of the European Union, does not preclude national legislation that requires the transferee of an undertaking to accept the existing and future terms and conditions agreed by a collective bargaining body, provided that the requirement is not unconditional and irreversible. It is for the national court to assess whether, in the specific circumstances of the present case and pursuant to national law, the requirement is in fact unconditional and irreversible in nature.