2014/14 Distinction asset-intensive/labour intensive not decisive; all Spijkers criteria relevant (NL)

The transfer of part of a business under the transfers of undertakings rules can occur without assets being transferred from one party to the other. The Dutch Supreme Court recently found such a transfer to have occurred without assessing whether the business in question was asset-reliant or labour-reliant. The other ‘Spijkers criteria’ took precedence.

2014/14 Distinction asset-intensive/labour intensive not decisive; all Spijkers criteria relevant (NL)

The transfer of part of a business under the transfers of undertakings rules can occur without assets being transferred from one party to the other. The Dutch Supreme Court recently found such a transfer to have occurred without assessing whether the business in question was asset-reliant or labour-reliant. The other ‘Spijkers criteria’ took precedence.

ECJ 6 March 2014, case C-458/12 (Lorenzo Amatori and others - v - Telecom Italia SpA and Telecom Italia Information Technology Srl), Transfer of undertaking, Transfer

In February 2012, Telecom Italia carried out an internal reorganisation. Before the...

ECJ 6 March 2014, case C-458/12 (Lorenzo Amatori and others - v - Telecom Italia SpA and Telecom Italia Information Technology Srl), Transfer of undertaking, Transfer

In February 2012, Telecom Italia carried out an internal reorganisation. Before the...

2014/1 Transfer of undertaking may happen in unexpected cases (CZ)

There is a transfer of an undertaking not only in cases where the employer’s undertaking, or part of it, is transferred to another employer based on an agreement or other legal reason but also where a company ceases to trade and another company owned by the same people starts to perform the same activities in the same premises, for the same clients but without any agreement on the transfer of the business itself, but where equipment has been contractually transferred between the two companies.

2014/1 Transfer of undertaking may happen in unexpected cases (CZ)

There is a transfer of an undertaking not only in cases where the employer’s undertaking, or part of it, is transferred to another employer based on an agreement or other legal reason but also where a company ceases to trade and another company owned by the same people starts to perform the same activities in the same premises, for the same clients but without any agreement on the transfer of the business itself, but where equipment has been contractually transferred between the two companies.

2014/40 Nature of activity, including asset/labour intensiveness, determines existence of transfer (HU)

Earlier this year, the Supreme Court of Hungary decided that there is no transfer of an undertaking where the activity concerned is labour-intensive and no staff or immaterial assets transfer.

2014/40 Nature of activity, including asset/labour intensiveness, determines existence of transfer (HU)

Earlier this year, the Supreme Court of Hungary decided that there is no transfer of an undertaking where the activity concerned is labour-intensive and no staff or immaterial assets transfer.

2014/42 Cross-border transfers of undertakings, focussing on Germany, UK and the Netherlands (Article)

Undertakings are increasingly being transferred to foreign companies. Neither the Transfer of Undertaking Directive 2001/23/EC (the ‘Directive’) nor, to my knowledge, Member States’ regulations stipulate how to apply labour law provisions to a transfer between Member States. A crucial question is which national law applies. Transposition of a directive by a Member State does not in itself lead to uniform legislation within the EU. As long as the aim of a directive is achieved, the Member States may implement the directive in the way that best suits their legal system. In addition, Directive 2001/23/EC is a minimum harmonisation directive. Article 8 allows Member States to grant employees rights that are more favourable than the directive requires. As a result of choices made by Member States, domestic laws on transfers of undertakings vary across the EU. This article focuses on the issue of the conflict of law when dealing with a cross-border transfer. It also examines, where appropriate, the jurisdiction of the courts.

2014/42 Cross-border transfers of undertakings, focussing on Germany, UK and the Netherlands (Article)

Undertakings are increasingly being transferred to foreign companies. Neither the Transfer of Undertaking Directive 2001/23/EC (the ‘Directive’) nor, to my knowledge, Member States’ regulations stipulate how to apply labour law provisions to a transfer between Member States. A crucial question is which national law applies. Transposition of a directive by a Member State does not in itself lead to uniform legislation within the EU. As long as the aim of a directive is achieved, the Member States may implement the directive in the way that best suits their legal system. In addition, Directive 2001/23/EC is a minimum harmonisation directive. Article 8 allows Member States to grant employees rights that are more favourable than the directive requires. As a result of choices made by Member States, domestic laws on transfers of undertakings vary across the EU. This article focuses on the issue of the conflict of law when dealing with a cross-border transfer. It also examines, where appropriate, the jurisdiction of the courts.