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	Číslo (Kód CELEX): Number (CELEX Code):		61994J0171

	Název: Title:		ECJ Judgement of 7 March 1996 Cases C-171/94 and C-172/94 Albert Merckx and Patrick Neuhuys v Ford Motors Company Belgium SA Preliminary Ruling [1996] ECR I-1253 "Merckx"

	Publikace: Publication:

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		· Redmond Case C-29/91 Redmond Stichting v Hendrikus Bartol [1992] ECR I-3189 · Schmidt Case C-329/92 Schmidt v Spar- und Leihkasse der frueheren Aemter Bordesholm, Kiel und Cronshagen [1994] ECR I-1311 · Tellerup Case 324/86 Tellerup v Daddy‘s Dance Hall [1988] ECR 739 · Bork Case 101/87 Bork International v Foreningen af Arbejdsledere I Danmark [1988] ECR 3057 · Katsikas Joined Cases C-132/91, C-138/91, C-139/91 Katsikas and Others v Konstandinidis [1992] ECR I-6577


	Plný text: Fulltext:		Ne

Fakta:
The plaintiffs were salesmen with Anfo Motors, a dealer selling Ford motor vehicles in the Brussels conurbation. Ford is also its main shareholder. On 8 October 1987, Anfo informed the plaintiffs that it would discontinue all its activities on 31 December 1987 and that with effect from 1 November 1987, Ford would be working with an inpedendent dealer, Novarobel. The latter would take on 14 of the 64 employees, among whom the plaintiffs, who would retain their duties, seniority and all other contractual rights in accordance with the provisions of Convention Collective No 32 bis, by which Belgian had implemented Council Directive 77/187/EEC.
Of 14/02/1977 on the approximation of laws of the Member States relating to the safeguarding of employees‘ rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, 26).
Anfo also sent a letter to its customers in order to inform them of the discontinuance of its activities and to recommend to them the services of the new dealer. The plaintiffs refused to work for Novarobel, claiming that Anfo could not require them to work with another company, in another place and under different working conditions, without any guarantee as to whether the client base would be retained or a particular turnover reached (on which base their salary is calculated). Moreover, the circumstances did not constitute a transfer, but rather the closure of an undertaking, because there was no contractual agreement between Anfo and Novarobel and no tangible assets had been passed between them, and because Anfo had dismissed more than three-quarters of its staff.
According to Art. 1 (1), the Directive applies to the transfer of an undertaking, business or part of business to another employer as a result of a legal transfer or merger. Art. 3 (1) provides for the transfer from the transferor to the transferee of the rights and obligations arising from a contract of employment existing at the time of the transfer. The first subparagraph of Art. 4 (1) adds that the transfer of an undertaking, business, or part of a business shall not in itself constitute grounds for dismissal by the transferor or the transferee. Art. 4 (2) provides that if the contract of employment is terminated because the transfer with the meaning of Art. 1 (1) involves a substantial change in working conditions to the detriment of the employee, the employer is to be regarded as having been responsible for termination. Finally, as indicated by the second recital in the preamble, the directive‘s aim is to provide ”the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded.”
The Higher Labour Court Brussels, by judgement of 15 July 1994, referred the case to the ECJ and asked whether the situation at issue would constitute a transfer of an undertaking within the meaning of the directive. In order to provide a helpful answer to the Belgian Court, the ECJ also found it necessary to establish whether Art. 3 (1) of the Directive precludes an employee of the transferor from objecting to the transfer of this contract of employment, with the new working relationships possibly entailing changed working conditions.

Názor soudu a komentář:
As regards the first part of the question as reformulated the ECJ first pointed to its settled case law (inter alia in Redmond ) according to which it is the decisive criterion for establishing a transfer for the purposes of the Directive whether the entity in question retains its economic identity, indicated inter alia by the fact that is operation is continued or resumed. To verify this condition, recourse must be had to an overall assessment based on the facts characterising the transaction in question, including the type of undertaking or business, whether or not the business‘s tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees is taken over by the new employer, whether or not its customers are transferred and the degree of similarity between the activities carried on before and after the transfer and the period, if any, for which those activities were suspended.
Here, the facts that Novarobel carried on the activity at its own economic risk, without interruption, in the same sector and subject to similar conditions, that it took on part of its staff and that is was recommended to customers in order to ensure continuity in the operation of the dealership support the result that the transfer of the dealership falls within the Directive‘s scope. By contrast it is immaterial here that no tangible assets were transferred (as equally found in Schmidt ), that the undertaking‘s structure and organisation is not preserved and that the principal place of business has been changed within the same conurbation. It is moreover irrelevant that the transferor discontinued its activities after the transfer, because otherwise the Directive‘s protective goal would be frustrated. The same is true for the argument that the majority of the staff was dismissed for the dismissals might have taken place for legitimate economic, technical or organisational reasons, which is not excluded by Art. 4. Finally, the fact that there was no contractual agreement is irrelevant as well. In order to realise the Directive‘s protective goals, the Court points to the need of a flexible interpretation. Thereafter, the notion of transfer within the meaning of the Directive is capable of encompassing cases such as the termination of a lease of a restaurant followed by the conclusion of a new management contract with another operator (Tellerup ), the termination of a lease followed by a sale by the owner (Bork ) and the situation in which a public authority ceases to grant subsidies to a legal person thereby bringing about the termination of its activities in order to transfer them to another legal person with a similar aim (Redmond ).
As regards the second question as reformulated above, the Court points to its Katsikas judgement (). According to this, whilst the Directive allows the employee to remain in the employ of his new employer on the the same conditions as were agreed with the transferor, it cannot be interpreted as obliging the employee ot continue his employment relationship with the transferee. Otherwise, the employee‘s fundamental rights to choose his employer would be jeopardised. In the event of the employee deciding not to continue with the contrict after the transfer, it is for the Member States to determine what the fate of the contract of employment should be; possible options include the termination of the contract either by the employee or the employer or the continuation of the employment relationship with the transferor (see Katsikas ). However, on the basis of the plaintiffs‘ submissions that Novarobel refused to guarantee to maintain their level of remuneration (calculated by reference to the turnover achieved), Art. 4 (2) applies and Anfo must be held responsible for the termination of the contract.

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):