Publication details
Les transferts d’entreprise : les clauses « dynamiques » devant la Cour de justice
| Title in English | Transfers of undertakings: ‘dynamic’ clauses before the Court of Justice |
|---|---|
| Authors | |
| Year of publication | 2018 |
| Type | Article in Periodical |
| Magazine / Source | ERA Forum |
| MU Faculty or unit | |
| Citation | |
| Web | |
| Doi | http://dx.doi.org/10.1007/s12027-018-0512-9 |
| Keywords | Transfer of undertakings; Directive 2001/23; Enforceability against the transferee of static and dynamic clauses; Freedom to conduct a business; The judgments Werhof; Alemo-Herron and Asklepios |
| Attached files | |
| Description | In the Alemo-Herron judgment the Court interpreted Article 3 of Directive 2001/23 read in conjunction with Article 8 thereof and in accordance with Article 16 of the EU Charter of Fundamental Rights. The Court ruled that this provision must be interpreted as precluding a Member State from providing, in the event of a transfer of an undertaking, that dynamic clauses referring to future collective agreements are enforceable against the transferee, where that transferee has no possibility of participating in the negotiation process of such collective agreements concluded after the date of the transfer. By contrast, in the Asklepios judgment, the Court ruled that the national legislation concerned maintains the possibility for the transferee to organise his activity after the date of the transfer in spite of such a dynamic clause and that therefore there is no need to further scrutinise whether this legislation was compatible with Article 16 of the Charter. Hence, both judgments are mutually coherent, even if they lead to different results. |