CJEU Case C-472/16 / Opinion

Jorge Luís Colino Sigüenza v Ayuntamiento de Valladolid and Others
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
06/12/2017
ECLI (European case law identifier)
ECLI:EU:C:2017:943
  • CJEU Case C-472/16 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Transfer of an undertaking — Prohibition of dismissal by reason of transfer — Dismissal for economic reasons — Directive 2001/23/EC — Expiring concession to run a music school — Loss of a service contract to a competitor — Economic entity — Economic entity which retains its identity — Collective dismissal — Right to an effective remedy — Article 47 of the Charter on Fundamental Rights of the EU

    Outcome of the case:

    In light of the foregoing, I propose that the Court answer the question referred by the Sala de lo Social del Tribunal Superior de Justicia de Castilla y León (Social Division of the High Court of Justice, Castilla y León, Spain) as follows:

    1. It should be considered that there is no transfer for the purposes 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 where the holder of a concession of a Municipal Music School, which receives all the material resources from that Municipality (premises, instruments, classrooms, furniture), has engaged its own staff and provides its services during the academic year, ceases that activity on 1 April 2013, two months before the end of the academic year, returning all the material resources to the Municipality, which does not resume the activity for the remainder of the academic year 2012/13, but awards a new concession to a new contractor, which resumes the activity in September 2013, at the beginning of the new academic year 2013/14, transferring to the new contractor for that purpose the necessary material resources previously made available to the former contractor by the Municipality (premises, instruments, classrooms, furniture).
    2. For the purposes of Article 4(1) of Directive 2001/23 it is to be understood that, in the circumstances described, – in which the failure of the main undertaking (the Municipality) to fulfil its obligations obliges the first contractor to cease its activity and to dismiss all its staff and immediately afterwards that main undertaking transfers the material resources to a second contractor, which continues with the same activity –, the dismissal of the first contractor’s employees has occurred for ‘economic, technical or organisational reasons entailing changes in the workforce’ and has not been caused by ‘the transfer of the undertaking, business or part of the undertaking or business’, a cause prohibited by that article.
    3. Article 47 of the Charter of Fundamental Rights of the European Union is to be interpreted as not precluding national legislation which prohibits a court from ruling on the substance of the claims of an employee who challenges in an individual action his dismissal, as part of a collective dismissal, in order to defend the rights deriving from Directive 2001/23 and Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, where final judgment has already been given on the collective dismissal in proceedings to which the employee was unable to be a party, although the unions established in the undertaking and all the collective statutory representatives were or were able to be parties, where under the national law, the binding force of that collective judgment does not exceed the boundaries of the subject matter of the proceedings and that subject matter differs from the one at issue in the individual proceedings.
  • Paragraphs referring to EU Charter (original language)