The acquired rights directive : its application to cross-border transfers, public servants and collective agreements

Abstract

This thesis gives an account of the rights afforded to employees in the case of a transfer of the undertaking in which they are employed to another employer under the Acquired Rights Directive, Council Directive 2001123. It does not aim to give an exhaustive account of all aspects of the Directive, but merely to address areas which have proved to raise particular questions affecting legal certainty, particularly from the point of view of the employee. Part I of the thesis gives an overview of the salient features of the Directive with a focus on issues raising questions of special interest and on issues relevant for the more thorough examination of certain questions found in Part II. Issues which do not raise particular problems are left out. This part of the thesis discusses questions with regard to the legal concept of a transfer, the application of the Directive to transfers involving public undertakings, transfers which take place as a result of insolvency procedures, as well as the most important consequences of a transfer of the employment relationship. Part II focuses on certain specific question concerning the Directive's application. In section 6 the question of the Directive's application to cross-border transfers is discussed, the conclusion being that the Directive will most likely apply in such situations. Section 7 deals with the Directive's application to public servants, and some critical remarks are made concerning recent case law by the European Court of Justice and the EFTA-court exempting public servants from the scope of the Directive. The consequences of a transfer in the meaning of the Directive to collective agreements applicable to the transferor are discussed in section 8 with a focus on the Court of Justice's case law pertaining to this question and some aspects concerning the limitations to the transferor's obligation to respect such agreements found in the Directive itself. Finally section 9 discusses the worker's right to object to the transfer of his employment relationship, pointing out that the Court has established that such a right does in fact exist and discussing the consequences of the exercise of such a right. I will say of the Lord, 'He is my refuge and my fortress; My God, in Him I will trust.'