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TRANSFER OF UNDERTAKINGS IN EU LAW

TRANSFER OF UNDERTAKINGS IN EU LAW. Tamás Gyulavári gyulavari.tamas@jak.ppke.hu. SOCIAL POLICY AND EMPLOYMENT. Legal harmonization Equal treatment Labour law & social dialogue Health and safety legislation Open method of co-ordination Employment policy Social protection

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TRANSFER OF UNDERTAKINGS IN EU LAW

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  1. TRANSFER OF UNDERTAKINGS IN EU LAW Tamás Gyulavárigyulavari.tamas@jak.ppke.hu

  2. SOCIAL POLICY AND EMPLOYMENT Legalharmonization • Equaltreatment • Labourlaw & socialdialogue • Health and safetylegislation Open method of co-ordination • Employment policy • Socialprotection • Socialinclusion

  3. General remarks on EU social and employment policy The acquison statistics consists of: • legislation which is directly applicable in the Member States, mostlyDirectives • Soft-law • ECJ case-law

  4. LABOUR LAW • Information and consultation • Restructuring • Atypical forms • Working time • Informing employees • Young workers • Posting

  5. Restructuring of enterprises

  6. Overview

  7. Transfer of undertakings

  8. A MunkAJOGI jogutódlás uniós jogi szabályai • 77/187/EEC • 98/50/EC Directives • 2001/23/E • ECJ case law

  9. Features of the directive • Firstly adopted in 1977 • Aim: securing employees’ rights in case of transfer of business, or parts of a business • The employment relationship with the transferor remains intact and goes on with the transferee (as the new employer)

  10. PLEASE, READ: DIRECTIVE 2001/23 ARTICLE 1 and 3

  11. 1. This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger.

  12. Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.

  13. Definition of the transfer • Legal transfer or merger • e.g. succession • B)Transfer of an economic entity which retains its identity, meaning an organised group of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. • In public/private/nonprofit sphere

  14. Transfer TRANSFER Transferee (B) Transferor(A) Transfer of rights and obligations Rights and obligations Rights and obligations Employees Employees

  15. 3. The transferor's rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

  16. Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.

  17. 4. The transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.

  18. Consequence of a transfer • The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. • Employee might contradict, if national law enables this • Dismissal can not be based solely on the transfer

  19. PLEASE, READ: DIRECTIVE 2001/23 ARTICLE 7

  20. 3. Following the transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.Member States may limit the period for observing such terms and conditions with the proviso that it shall not be less than one year.

  21. Ascpects of collective labour law • Information and consultations with workers’ representatives during the process • Collective agreement has to be upheld, until the date of termination/expiry or the entry into force of another CA, or (optional) to a max. of at least 1 year • Representation in works councils shall be guaranteed

  22. Thank you for your attention  Tamás Gyulavári

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