In Ferreira da Silva e Brito & others v Estado Português (Case C-160/14) the European Court considered the winding up of Air Atlantis and the taking over of its activities by its major shareholder TAP.  TAP disputed that there was a transfer of an undertaking.  But TAP took over the routes previously served by Air Atlantis and used significant assets, including four aeroplanes.  TAP also assumed responsibility for the payment of charges under the leasing contracts relating to those aircraft and took over the office equipment which belonged to Air Atlantis and which had been used at Air Atlantis' premises in Lisbon and Faro.  TAP also took on a number of former Air Atlantis employees.

The Portuguese Court had taken the view that TAP had simply taken over Air Atlantis' licence to operate.  The European Court, however, considered that there had been a transfer of an undertaking.

Of paramount importance was that this case concerned the air transport sector.  So the transfer of the assets necessary to operate Air Atlantis' business (the aircraft) was crucial.

Secondly, it was immaterial that Air Atlantis lost its autonomy following the TAP takeover.  Following the case of Klarenberg (Case C-466/07) the Court confirmed that a loss of autonomy does not prevent a TUPE transfer.  This is provided that the various elements of production remain the same and are used by the new employer to carry out the same or similar activities.