On the day of the UK’s exit from the European Union it may seem idiosyncratic to provide a round up of case law developments on the EU Acquired Rights Directive. But a transitional (or “implementation”) period until 31 December 2020 now follows, during which these developments may still be relevant.

In TUPE situations, how does the Acquired Rights Directive apply where there is an assignment of duties to an employee but where the destination of that employee might be to multiple transferees and the employee works across all parts transferred?

Advocate General Szpunar has given his opinion in ISS Facility Services NV v Sonia Govaerts, Euroclean NV, C-344/18.

The question sent by the Arbeidshof te Gent (Belgium) for the Court of Justice to answer was this:

‘Must Article 3(1) of Council Directive 2001/23 of 12 March 2001 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 undertakings or businesses, be interpreted as meaning that, in the case where there is a simultaneous transfer of various parts of an undertaking within the meaning of Article 1(1) of that directive, which parts are transferred to various transferees, the rights and obligations arising from the employment contract, as it existed at the time of the transfer, of a worker who was employed in each of the transferred parts, will be transferred to each of the transferees, albeit in proportion to the extent of the employment of the aforementioned worker in the part of the undertaking acquired by each transferee, or must that provision be interpreted as meaning that the aforementioned rights and obligations are transferred in their entirety to the transferee of the part of the undertaking in which the aforementioned worker was principally employed, or as meaning that, if the provisions of the Directive cannot be interpreted in any of the aforementioned ways, there is no transfer to any transferee of the rights and obligations arising from the employment contract of the aforementioned worker, which is also the case if it is not possible to determine separately the extent of the worker’s employment in each of the transferred parts of the undertaking?’

So, in such a case, is:

(1) the employee transferred to each transferee pro rata, or

(2) to the transferee taking that part of the undertaking where the employee was principally employed, or

(3) is there no transfer to any transferee?

Perhaps surprisingly the AG favoured option (1). This would lead to some very difficult questions in practice. However, said the AG, in the event that the splitting of the employment contract proves to be impossible between the two assignees, or prejudices the maintenance of the rights of the worker, or if the worker refuses, after the transfer, to go along with the splitting of his employment contract, the employment contract or the employment relationship in question can be terminated and this termination must be considered as having occurred due to the act of the assignee (s) under Article 4 (2) of the Acquired Rights Directive.

An update on the status of pending case Unión Insular de CCOO de Lanzarote v Swissport Spain Aviation Services Lanzarote, SL (Case C-167/18).

In this referral to the Court of Justice, a case from Spain, the Court was being asked to rule on whether a service provision change concerning a labour-intensive cleaning contract amounts to a transfer of an undertaking when it took place under the terms of a collective agreement on employment in the cleaning sector in Spain. As it was pursuant to the terms of a collective agreement and therefore not a voluntary transfer, did that make a difference?

Furthermore, was the collective agreement applicable to the cleaning of buildings and premises in the Province of Las Palmas (which provides that when employees are taken over under the collective agreement they do not retain the rights which they acquired with the transferor undertaking) compatible with the Acquired Rights Directive?

By an order of 5 November 5, 2018, received at the Secretariat of the Court of Justice on 12 April 12, 2019, the Canary Superior Court of Justice informed the Court of Justice that it wished to withdraw its request for a preliminary ruling. Thus, although this referral still appears in the list of pending cases before the Court of Justice, it should be treated as suspended before removal from the register.

More details filed in the pending cases of EM v TMD Friction GmbH (Case C-674/18) and RCC v MOL (Case C-314/19)

In both these recent referrals to the Court of Justice the documents published on the website of the CJEU now also include the original Request for a Preliminary Ruling, which comprises:

• The questions referred.
• The provisions of EU Law cited.
• The provisions of national law cited.
• A Brief Summary of the facts
• The principal arguments of the parties
• A summary of the basis of the reference.