«(Directive 77/187/EEC – Safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses – Early retirement and associated benefits)»

1.. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees' rights – Directive 77/187 – Rights and obligations within the meaning of Article 3 – Rights contingent upon dismissal or the grant of early retirement by agreement with the employer – Included (Council Directive 77/187, Art. 3(1))

2.. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees' rights – Directive 77/187 – Exceptions – Supplementary company or inter-company pension schemes – Old-age benefits – Definition – Early retirement benefits and benefits intended to enhance the conditions of such retirement – Excluded (Council Directive 77/187, Art. 3(3))

3.. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees' rights – Directive 77/187 – Transfer of obligations applicable in the event of the dismissal of an employee – Conditions and limitations – Obligations deriving from or implemented by statutory instruments – Not relevant (Council Directive 77/187, Art. 3)

4.. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees' rights – Directive 77/187 – Less favourable early retirement terms – Acceptance by employees – Excluded – Exception – More favourable terms arising from a collective agreement which is no longer binding (Council Directive 77/187, Art. 3)

5.. Social policy – Approximation of laws – Transfers of undertakings – Safeguarding of employees' rights – Directive 77/187 – Less favourable early retirement terms offered in breach of the public policy obligations imposed by Article 3 – Transferee's obligation to make good (Council Directive 77/187, Art. 3)

JUDGMENT OF THE COURT (Sixth Chamber) 6 November 2003 (1)

((Directive 77/187/EEC – Safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses – Early retirement and associated benefits))

In Case C-4/01,

REFERENCE to the Court under Article 234 EC by the Employment Tribunal, Croydon (United Kingdom) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 3 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: J.-P. Puissochet (Rapporteur), President of the Chamber, R. Schintgen, C. Gulmann, F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: S. Alber,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Ms Martin, Mr Daby, South Bank University and the Commission at the hearing on 15 May 2003,

after hearing the Opinion of the Advocate General at the sitting on 17 June 2003,

gives the following

Member States may provide that, after the date of transfer within the meaning of Article 1(1) and in addition to the transferee, the transferor shall continue to be liable in respect of obligations which arose from a contract of employment or an employment relationship.

Member States may limit the period for observing such terms and conditions, with the provision that it shall not be less than one year.

Member States shall adopt the measures necessary to protect the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer within the meaning of Article 1(1) in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under supplementary schemes referred to in the first subparagraph.

The Transfer of Undertakings (Protection of Employment) Regulations 1981

The General Whitley Council conditions of service for NHS employees

The differences between early retirement for NHS employees laid down by the GWC conditions of service and early retirement for employees in the sector of higher education

2. Is the employees' entitlement to the payment of early superannuation benefits and lump sum compensation on redundancy/in the interests of the efficiency of the service/on organisational change, a right to an old-age, invalidity or survivors' benefit within the meaning of Article 3(3) of the directive? 3. If and to the extent that the answer to Question 2 is no, is there an obligation on the transferor arising from the contract of employment, the employment relationship or the collective agreement within the meaning of Article 3(1) and/or 3(2) which transfers by reason of the transfer of the undertaking and renders the transferee liable to pay the benefits to the employee upon dismissal? 4. If the answers to Questions 2 and 3 are no and yes respectively, may the employee, nonetheless, agree to forego his/her entitlement to early payment of pension and retirement lump sum and/or the annual allowance and lump sum compensation in circumstances where the transferee's pension scheme does not entitle him or her to the same benefits and the same circumstances or at all, and he/she

5. If so, what are the criteria by which the national court should decide whether, in such circumstances, the employee has agreed? 6. Are Articles 3(1) and/or 3(2) of the directive to be interpreted as precluding the transferee from offering transferred employees the option of taking early retirement on the basis of early retirement benefits that are less beneficial than those to which they are entitled as a consequence of the effect of the directive? 7. Is the answer to the foregoing question affected if, when offering transferred employees the option of taking early retirement on terms less beneficial than those to which they are entitled under the directive, the transferee states that no early retirement benefits will be available in future? 8. Where the parties have agreed that the employee will take premature retirement on the terms offered by the employer, what criteria should the national court apply in determining whether the transfer of the undertaking is the reason for that agreement in accordance with the principle enunciated by the Court in Case 324/86

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Employment Tribunal, Croydon (United Kingdom), by order of 5 January 2001, hereby rules:

Puissochet

Schintgen

Gulmann

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 6 November 2003.

R. Grass

V. Skouris

Registrar

President