Opinion Advocate General (26/11/19) on TUPE Directive in case of business transfer to various transferees

On 25 May 2018, the Belgian labor court of Ghent requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on how to interpret the TUPE Directive (implemented in Belgium through collective bargaining agreement 32bis) in the case where there is a simultaneous transfer of various parts of an undertaking, which parts are transferred to various transferees.

The CJEU was asked to answer the following questions: Must the TUPE Directive be interpreted as meaning that, in the case where there is a simultaneous transfer of various parts of an undertaking, which parts are transferred to various transferees,

1. the employment contract 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
2. 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
3. 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.

The opinion rendered by the Advocate General on 26 November 2019 seems to allow, as a matter of principle, the possibility of a transfer to each of the transferees, in proportion to the extent of the employment of the worker in the part of the undertaking acquired by each transferee.