Key facts of the case:
Request for a preliminary ruling from the Supreme Court of the 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:
On those grounds, the Court (Third Chamber) hereby rules:
Article 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 precluding a Member State from providing, in the event of a transfer of an undertaking, that dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer are enforceable against the transferee, where that transferee does not have the possibility of participating in the negotiation process of such collective agreements concluded after the date of the transfer.
30) Secondly, it is settled case-law that the provisions of Directive 2001/23 must be interpreted in a manner consistent with the fundamental rights as set out by the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, Case C–179/11 Cimade and GISTI  ECR, paragraph 42).
31) In that regard, the referring court does indeed indicate that the right not to join an association is not at issue in the main proceedings. However, the interpretation of Article 3 of Directive 2001/23 must in any event comply with Article 16 of the Charter, laying down the freedom to conduct a business.
32) That fundamental right covers, inter alia, freedom of contract, as is apparent from the explanations provided as guidance to the interpretation of the Charter (OJ 2007 C 303, p. 17) and which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into account for the interpretation of the Charter (Case C-283/11 Sky Österreich  ECR, paragraph 42).