Decision CJEU (26 March 2020) in situation of TUPE involving a number of transferees
On 25 May 2018, the Belgian labor court of Ghent requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on how to interpret the TUPE Directive (implemented in Belgium through collective bargaining agreement 32bis) in the situation of a transfer of undertaking involving a number of transferees.
By its question, the referring court seeks, in essence, to ascertain whether, when there occurs a transfer of an undertaking, within the meaning of Article 1(1) of Directive 2001/23, involving a number of transferees, the first paragraph of Article 3(1) of that directive must be interpreted as meaning that the rights and obligations arising from a contract of employment existing at the time of that transfer are transferred to each of the transferees, in proportion to tasks performed by that worker, or only to the transferee for whom the worker will perform his or her principal tasks. In the alternative, the referring court asks whether that provision must be interpreted as meaning that the rights and obligations arising from the contract of employment cannot be asserted against either of the transferees.
The decision of the CJEU of 26 March 2020 is as follows :
Where there is a transfer of undertaking involving a number of transferees, Article 3(1) 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 meaning that the rights and obligations arising from a contract of employment are transferred to each of the transferees, in proportion to the tasks performed by the worker concerned, provided that the division of the contract of employment as a result of the transfer is possible and neither causes a worsening of working conditions nor adversely affects the safeguarding of the rights of workers guaranteed by that directive, which it is for the referring court to determine. If such a division were to be impossible to carry out or would adversely affect the rights of that worker, the transferee(s) would be regarded as being responsible for any consequent termination of the employment relationship, under Article 4 of that directive, even if that termination were to be initiated by the worker.
A copy of the decision can be found here : http://curia.europa.eu/juris/document/document.jsf?text=&docid=224722&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1144035
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