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Published online by Cambridge University Press: 27 October 2017
Advocate General Mayras described a public authority as ‘that which arises from the sovereignty and majesty of the State; for him who exercises it, it implies the powers of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens’.
This quotation has an eighteenth century flavour and is difficult to adapt to the complex legal and economic system of the European Community the extraordinary remit of which has extended to many activities traditionally reserved to the State and to public authorities. The scope of this remit blurs the distinction between what could be termed the exercise of a public power and what could be termed the exercise of an economic function. The ‘Europeanization of public service provision’ has thus rendered the definition of a ‘public authority’ elusive. One of the areas where such a definition has been particularly problematic is the protection of employees’ rights in the event of the transfer of an undertaking.
1 Case 2/74 Reyners [1974] ECR 631, at 665.
2 Szyszczak, E. ‘Public Service Provision in Competitive Markets’ (2001) 20 YEL 35 Google Scholar.
3 Subsequently referred to as ‘the Directive’, OJ 1977 L 61/26.
4 Dir. 98/50, OJ 1998 L 201/58.
5 Dir. 2001/23, OJ 2001 L 82/16.
6 See in particular Case 24/85 Spijkers [1986] ECR 1119; Case C–392/92 Schmidt [1994] ECR I–2435; Case C–13/95 Süzen [1997] ECR I–1259; Joined Cases C–127/96, C–226/96 & C–74/97 Hermandez Vidal [1998] ECR I–8179; Joined Cases C–173/96 & 247/96 Sanchez Hidalgo [1998] ECR I-8237; Case C–234/98 Allen [1999] ECR I–8643; Case C–172/99 Oy Liikenne [2001] ECR I–745; Case C–51/00 Temco, judgment of 24 January 2002, nyr. This case law has been widely com mented upon. Recently, see in particular McMullen, J. ‘Sidestepping Süzen’ (1999) 28 ILJ 360 Google Scholar; Davies, P. ‘Transfers—the UK will have to make up its own mind’ (2001) 30 ILJ 231 CrossRefGoogle Scholar; Garde, A. ‘Recent Developments in the law relating to transfers of undertakings’ (2002) 39 CMLRev 523 Google Scholar Now published (pages 523–550).
7 Case C–29/91 Redmond Stichting [1992] ECR I–3189.
8 Para 21.
9 Case C–382/82 Commission v. UK [1994] ECR I–2435.
10 Paras 44 to 46.
11 Case C–268/94 Henke [1996] ECR I–4989.
12 After amendment, Second Recital.
13 Virksomhed, Unternehmen, entreprise, impresa, onderneming, empresa, yritis, företag …; and bedrift, Betrieb, établissement, stabilimento, vestiging, estabelecimento, centro de actividad …
14 Indehaver, Inhaber, chef d’entreprise, imprenditore, ondernemer, empresario, empresario …
15 Case C–175/99 Mayeur v. Association Promotion de l’Information Messine (APIM) [2000] ECR I–7755.
16 Case C–343/98 Collino and Chiappero v. Telecom Italia SpA [2000] ECR I–6659.
17 Case 41/83 Italy v. Commission [1985] ECR 873; Joined Cases C–271/90, C–281/90 and C–289/90 Spain and Others v. Commission [1992] ECR I–5833.
18 Case C–69/91 Decoster [1993] ECR I–5335 and Case C–92/91 Taillandier [1993] ECR I–5383.
19 Case C–29/91 Redmond Stichting v. Bartol [1991] ECR I–3189.
20 Hepple, B. ‘Report for the Commission of the European Communities Directorate-General Employment, Industrial Relations and Social Affairs—Main shortcomings and proposals for revision of Council Directive 77/187/EEC’, December 1990.
21 Case C-41/90 Höfner and Elser [1991] ECR I–1979, para 21. See also Joined Cases C–159/91 and 160/91 Poucet and Pistre [1993] ECR I–637, para 17.
22 See further Buendia Sierra, J.-L. Exclusive Rights and State Monopolies under EC law (Oxford, OUP, 1999), 55 Google Scholar.
23 Case C–118/85 Commission v. Italy [1987] ECR 2599, para 7.
24 Case 30/87 Corinne Bodson v. Pompes Funèbres des Régions Libérées SA [1988] ECR 2479.
25 Case C–364/92 SAT Fluggesellschaft mbH v. Eurocontrol [1994] ECR I–43. For examples where the Court refused to exempt public bodies from the scope of competition law, see Case C–41/90 Höfner and Elser [1991] ECR I–1979 and Case C–387/93 Banchero [1995] ECR I–4663.
26 Para 30.
27 Case C–343/95 Diego Cali & Figli Srl v. Servizi ecologici porto di Genova SpA [1997] ECR I–1547.
28 See also Case C–118/85 Commission v. Italy [1987] ECR 2599: ‘It is of no importance that the State is acting directly through a body forming part of the State administration or by way of a body on which it has conferred special or exclusive rights’, para 8.
29 Paras 22 and 23.
30 Opinion in Case C–475/99 Ambulanz Glöckner, judgment of 25 October 2001, nyr, para 72.
31 See Szcycsak, above n 2, for a discussion relating to the litigation on the application of ‘services of general economic interests’ contained in Art. 86 EC.
32 The Court has even relied expressly on some of its competition law cases in Collino (telecommunication services = economic activity).
33 Case C–234/98 Allen [1999] ECR I–8643.
34 Case C–73/95 Viho [1996] ECR I–5457. Appeal against the judgment of the CFI in Case T-102/92 [1995] ECR II–17.
35 Case T–102/92, para 50.
36 Para 20.
37 Case C–67/96 Albany [1999] ECR I–5751.
38 Paras 59 and 60 of the Albany case. For a general account of the relationship between the meaning of undertaking in competition law and social policy, see Hennion-Moreau, S. ‘La notion d’entreprise en droit social communautaire’ Droit Social (2001) 957.
39 Joined Cases C–270/97 and C–271/97 Deutsche Post AG v. Elisabeth Sievers and Brunhilde Schrage [2000] ECR I–929. The Court stated: ‘the economic aim pursued by Article 119 of the Treaty [now Article 141], namely the elimination of distortions of competition between undertak ings established in different Member States, is secondary to the social aim pursued by the same pro vision, which constitutes the expression of a fundamental human right’ (para 57).
40 Para 17.
41 See Morris, N. ‘The Contemporary Prison’ in Morris, N. and Rothman, D. (eds.) The Oxford History of Prisons—The Practice of Punishment in Western Society (Oxford, OUP, 1998), 227 Google Scholar.
42 See, for example, the statements that Mark Healy from the Prison Officers Association made to the Trades Union Congress on 17 September 1998: ‘the workers in private prison are paid less than their public sector counterparts, they work longer hours, they have less holidays, and you can go on and on and on. In short, it is yet another example of the private sector exploiting workers’.
43 Case C–51/00 Temco, judgment of 24 January 2002, nyr.
44 See, for instance, Case 324/86 Daddy’s Dance Hall [1988] ECR 739; Case C–29/91 Redmond Stichting [1992] ECR I–3189; Case C–13/95 Süzen [1997] ECR I–1259.
45 Para 32. Advocate General Geelhoed suggested an alternative approach to subcontracting (paras 33 to 40 of his Opinion). See Garde, above n 6.
46 Advocate General Alber forcefully made this point in Collino.
47 Dir. 93/104/EC of 23 November 1993, OJ 1993 L 307/18. Art. 2 of Dir. 89/391 states that ‘this Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, com mercial, administrative, service, educational, cultural, leisure, etc.’ (OJ 1989 L 183/1).
48 Dir. 2000/34/EC, OJ 2000 L195/41.
49 Other terms such as ‘representatives of employees’ (Art. 2(1)(c)), ‘contract of employment’ and ‘employment relationship’ (Art. 2(2)) are also defined at national level.
50 Case 105/84 Mikkelsen [1985] ECR 2639 and Case 19/83 Wendelboe [1985] ECR 457. In Collino, the Court emphasised, after holding that a transfer such as that in the main proceedings could theoretically fall within the material scope of the Directive, that it could only be relied upon by persons who are protected in the Member State concerned as employees under national labour law (para 36). The lack of a Community definition has been fiercely criticised ‘as it may deprive some of the workers who need it most of the protection that the Directive provides and consequently ‘frustrate the aims of those who drafted the Directive’ (Hepple, above n 20).
51 In Mayeur, the Court stated in the last stage of its reasoning that it could not conclude as to whether the Directive should apply. The Court decided that the activity was economic in nature, and therefore the applicability of the Directive could not be ruled out. However, it also insisted on the fact the mere fact that the activity engaged in by the two consecutive employers was similar did not justify the conclusion that an economic entity had been transferred, as an entity cannot be reduced to the activity entrusted to it (para 49). It therefore left it to the referring court to assess whether a transfer of an undertaking had actually taken place on the facts of the case.
52 Case 24/85 Spijkers [1986] ECR 1119.
53 Case C–13/95 Süzen [1997] ECR I–1259. This case has been seen as a retreat from the more extensive interpretation adopted by the Court in Case C–392/92 Schmidt [1994] ECR I–2435.
54 See Joined Cases C–127/96, C–229/96 and C–74/97 Hernandez Vidal [1998] ECR I–8179 and Joined Cases C–173/96 and C–247/96 Sanchez Hidalgo [1998] ECR I–8237.
55 Case C–172/99 Oy Liikenne [2001] ECR I–745. See Davies, above n 6.
56 Transfers of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1794).
57 Staff Transfers in the Public Sector Statement of Practice, Cabinet Office, January 2000. See Sargeant, M. ‘New Transfer Regulations’ (2002) 31 ILJ 35, 39 CrossRefGoogle Scholar.