CJUE, Mirja Juuri/Fazer Amica Oy, C-396/07, hotărârea din 27 noiembrie 2008

Extrasele exacte din hotărâre la care trimit ghidurile.

1. par. 22–25 · limba originalului: en

   22. It is clear from the wording of Article 4(2) of Directive 2001/23 that it establishes a rule that the employer is to be regarded as responsible for the termination of a contract of employment or employment relationship, whichever party is technically responsible for the termination. However, that provision does not set out the legal consequences of that responsibility. Thus it does not impose on the Member States any obligation to guarantee employees a particular compensation scheme or, accordingly, to ensure that the detailed rules under that scheme are the same as those under the scheme from which employees can benefit if the employer unlawfully terminates the contract of employment or by virtue of the notice period to be observed by the employer. 23. That is consistent with the aim of Directive 2001/23, which is intended to achieve only partial harmonisation in the field in question, essentially by extending the protection guaranteed to employees independently under the laws of the individual Member States to cover the case where an undertaking is transferred. It is not intended to establish a uniform level of protection throughout the Community on the basis of common criteria. Thus Directive 2001/23 can be relied on only to ensure that the employee is protected in his relations with the transferee to the same extent as he was in his relations with the transferor under the legal rules of the Member State concerned (Case C-4/01 Martin and Others [2003] ECR I-12859, paragraph 41). 24. Furthermore, it is clear from the explanatory memorandum in the proposal for Directive 77/187 (COM (74) 351) that, although the employee’s termination of his contract of employment must be treated as if it were due to the action of his employer, the legal consequences involved, such as severance payment or compensation, must be prescribed by the laws, regulations and administrative provisions of the Member States. 25. In those circumstances, Article 4(2) of Directive 2001/23 cannot be regarded as having impliedly fixed a uniform level of protection for employees above and beyond the rule it lays down regarding the responsibility to be attributed to employers. Thus, in particular, that provision does not specify the financial consequences flowing from the fact that, in the above circumstances, responsibility for termination of the contract of employment or the employment relationship can be attributed to the employer. Accordingly, those consequences must be established in each Member State in accordance with the applicable rules of national law.

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2. par. 26–30 · limba originalului: en

   26. However, it should also be borne in mind that the freedom to choose the ways and means of ensuring that a directive is implemented does not affect the obligation incumbent upon on all Member States to which the directive is addressed to adopt, in their national legal systems, all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it pursues (see Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 15, and Case C-268/06 Impact [2008] ECR I-0000, paragraph 40). 27. The Member States’ obligation arising from a directive to achieve the result envisaged by that directive, as well as their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts ( von Colson and Kamann , paragraph 26, and Impact , paragraph 41). 28. In that connection, it should be borne in mind that Directive 2001/23 is intended to safeguard the rights of employees in the event of a change of employer by allowing them to continue to work for the transferee employer on the same conditions as those agreed with the transferor (see, inter alia, Case 324/86 Tellerup (‘Daddy’s Dance Hall’) [1988] ECR 739, paragraph 9, and Case C‑499/04 Werhof [2006] ECR I-2397, paragraph 25). 29. Directive 2001/23 pursues that objective a stage further in that it makes the transferee employer responsible for the termination of the contract of employment or employment relationship where the transfer of the undertaking involves a substantial change in working conditions, the consequences of that responsibility being governed by the applicable national law. 30. In the light of the foregoing, Article 4(2) of Directive 2001/23 must be interpreted as meaning that, in cases where the termination of a contract of employment or an employment relationship is brought about because the conditions for the applicability of that provision have been met, independently of any failure on the part of the transferee employer to fulfil its obligations under that directive, the Member States are not required to guarantee the employee a right to financial compensation, for which the transferee employer is liable, in accordance with the same conditions as the right upon which an employee can rely where the contract of employment or the employment relationship is unlawfully terminated by his employer. However, the national court is required, in a case within its jurisdiction, to ensure that, at the very least, the transferee employer in such a case bears the consequences that the applicable national law attaches to termination by an employer of the contract of employment or the employment relationship, such as the payment of the salary and other benefits relating, under that law, to the notice period with which an employer must comply.

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3. par. 32–34 · limba originalului: en

   32. Under Article 3(3) of Directive 2001/23, following the transfer of an undertaking, the transferee is to continue to observe the terms and conditions agreed in a collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another. 33. Thus that provision aims to ensure that, despite the transfer of the undertaking, all the working conditions continue to be observed in accordance with the intention of the contracting parties to the collective agreement. However, that provision cannot derogate from the intention of those parties as expressed in the collective agreement. Accordingly, if the contracting parties have agreed not to guarantee certain working conditions beyond a particular date, Article 3(3) of Directive 2001/23 cannot impose on the transferee the obligation to observe those working conditions after the agreed date of expiry of the collective agreement, as after that date the agreement is no longer in force. 34. It follows that Article 3(3) of Directive 2001/23 does not require the transferee to ensure that the working conditions agreed with the transferor are observed after the date of expiry of the collective agreement, even though that date coincides with the date on which the undertaking was transferred.

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