«(Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of workers' rights – Directive 77/187/EEC – Scope – Definition of transfer)»

Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees' rights – Directive 77/187 – Scope – Termination by a contracting authority of a contract for management of catering services – Parts of the tangible assets belonging to the contracting authority used by each contractor in turn – Intention of the second contractor not to take on the employees of the first – Included (Article 1 of Council Directive 77/187) Article 1 of Directive 77/187 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 businesses must be interpreted as applying to a situation in which a contracting authority which had awarded the contract for the management of the catering services in a hospital to one contractor terminates that contract and concludes a contract for the supply of the same services with a second contractor, where the second contractor uses substantial parts of the tangible assets previously used by the first contractor and subsequently made available to it by the contracting authority, even where the second contractor has expressed the intention not to take on the employees of the first contractor.see para. 43 and operative part

JUDGMENT OF THE COURT (Sixth Chamber) 20 November 2003 (1)

((Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of workers' rights – Directive 77/187/EEC – Scope – Definition of transfer))

In Case C-340/01,

REFERENCE to the Court under Article 234 EC by the Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Council Directive 77/187/EEC of 14 February 1977 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 businesses (OJ 1977 L 61, p. 26),

THE COURT (Sixth Chamber),,

composed of: C. Gulmann, acting as President of the Sixth Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet (Rapporteur), F. Macken and N. Colneric, Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Sodexho MM Catering Gesellschaft mbH, represented by G. Loibner, of Sanrest Großküchen Betriebsgesellschaft mbH, represented by A. Walchshofer, Rechtsanwalt, and of the Commission, represented by J. Sack, at the hearing on 15 May 2003,

after hearing the Opinion of the Advocate General at the sitting on 19 June 2003,

gives the following

Community law

National law

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the Oberster Gerichtshof by order of 25 June 2001, hereby rules:

Gulmann

Cunha Rodrigues

Puissochet

Macken

Colneric

Delivered in open court in Luxembourg on 20 November 2003.

R. Grass

V. Skouris

Registrar

President