In this essay I will argue that the jurisprudence emerging from the CJEU in relation to key concepts of the Directive has largely been deficient. Deficient in the sense that the CJEU has not been consistent in its decisions in course of time, shifting its thinking, providing a lack of clarity and therefore leaving national courts with suboptimal legal certainty in the interpretation of the law.
Since its adoption in 1977 the Acquired Rights Directive (hereinafter the “Directive”) has generated a generous amount of case law, both in the national courts of the Member States of the European Union as well as at European level before the CJEU. This was owed to the vague drafting of its original provisions and the lack of clarity or definition even of key concepts such as the “transfer of undertakings”. Furthermore, the way of doing business in a globalised economy has changed over the years leading to corporate restructuring and the creation of atypical contracts (e.g. leasing, contracting-out, franchising) which the European legislator may not have thought of at that time. Consequently, national courts involved in transfer of undertakings litigations have been forced to request the CJEU for preliminary rulings and interpretation in rather fact-specific matters since a settlement based solely on the law text of the Directive or the corresponding national implementation was not possible. At the end, some of the Court’s case law itself has generated new uncertainty among the interpretation of the provisions of the Directive which has resulted in more case law. This prompted the European Council to amend the Directive in 1998 in order to reflect inter alia the case law of the CJEU and ultimately to repeal it in 2001 ‘in the interests of clarity and rationality’. The corresponding law and the evolvement of the jurisprudence of the CJEU will be analysed in more detail below.
Inhaltsverzeichnis (Table of Contents)
- Introduction
- Scope of application - The concept of the transfer of an undertaking
- Economic activity in contrast to the exercise of public authority: An unclear demarcation
- Legal transfer: Resurrection of a contractual link?
- Economic entity retaining its identity: An open door to avoid the application of the Directive...
- Safeguarding of employees' rights
- Contractual variation
- Opting-out of a transfer: A sting in the tail
- Collective agreements
- Dismissal: Clever transferors dismiss before the transfer, or not?
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
The objective of this essay is to critically evaluate the jurisprudence of the Court of Justice of the European Union (CJEU) regarding the interpretation of the Acquired Rights Directive. It explores whether the case law emerging from the CJEU is deficient and why.
- The interpretation of key concepts within the Acquired Rights Directive, particularly the "transfer of undertakings."
- The consistency and clarity of the CJEU's jurisprudence over time, focusing on the application of the Directive.
- The implications of the CJEU's jurisprudence for national courts in interpreting and applying the Directive.
- The evolving nature of business practices and the need for the Directive to adapt to changes in the globalized economy.
- The balance between protecting employee rights and facilitating business operations in the context of transfers of undertakings.
Zusammenfassung der Kapitel (Chapter Summaries)
- Introduction: This chapter provides an overview of the Acquired Rights Directive, its history, and the rationale behind its adoption. It highlights the complexities arising from the Directive's vague wording and the need for the CJEU to interpret its provisions.
- Scope of application - The concept of the transfer of an undertaking: This chapter delves into the core concept of "transfer of undertakings" as defined by the Directive. It examines the CJEU's interpretation of the key elements of this concept: economic activity, legal transfer, and the economic entity retaining its identity.
- Safeguarding of employees' rights: This chapter focuses on the Directive's primary aim of protecting employee rights during transfers of undertakings. It analyzes the CJEU's jurisprudence on contractual variation, opting-out provisions, and the role of collective agreements in safeguarding employee rights.
- Dismissal: Clever transferors dismiss before the transfer, or not?: This chapter investigates the CJEU's case law on the relationship between dismissal and the transfer of undertakings. It examines whether the Directive effectively prevents employers from strategically dismissing employees prior to a transfer to circumvent its protections.
Schlüsselwörter (Keywords)
This essay examines the Acquired Rights Directive, focusing on the CJEU's jurisprudence. Key terms include transfer of undertakings, economic activity, legal transfer, economic entity retaining its identity, employee rights, contractual variation, collective agreements, dismissals, and the interpretation of EU law in the context of corporate restructuring.
- Quote paper
- Ass. Jur. Thomas Böhm (Author), 2018, A critical evaluation of the jurisprudence of the Court of Justice of the European Union (“CJEU”) that has interpreted the provisions of the Acquired Rights Directive. Is the case law emerging from the CJEU deficient, and why?, Munich, GRIN Verlag, https://www.grin.com/document/480685
