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2.3.2 Transfer of undertaking and restructuring
88. In case of activities in civil aviation, where pilots and other aircrew are constantly working in different member states, it is not always easy to know when someone is posted and thus is protected by the Directive. In 2020, European Cockpit Association and other European social partners therefore have published a study on this topic: “Should Aircrew be declared posted?”. See point 6.2.3 and find the summary and full study here.
2.3.2 Transfer of undertaking and restructuring
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89. Council Directive 2001/23/EC 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 business (the Transfer of Undertaking Directive) 45 aims to protect employment rights when there is a transfer of ownership of a company. The employment rules regarding a transfer of undertaking are sometimes referred to as “TUPE” (Transfer of Undertaking Protection of Employment). This directive spells out both the EU-wide rights of employees which work in a company or a business whose ownership is transferred and the obligations of the transferee (the entity that buys or acquires the company) and transferor (the entity that sells the company).
90. In concrete terms, article 4 of the Directive establishes that the transfer is not a ground for dismissal and that employees retain the same rights and obligations existing before the operation. This means that a transfer of undertaking cannot change the working conditions of an employee. Article 3 provides that the terms and conditions of a collective bargaining agreement are also maintained unless national governments decide to limit its duration. This limitation cannot be less than one year. However, rights and obligations resulting from the complementary social protection schemes are not maintained.
91. Subsequently, article 5 provides that employees’ rights and obligations are not maintained when the transfer is carried out in a context of insolvency or bankruptcy proceedings (with the exception of the right to be represented).
92. Furthermore, article 6 establishes that employee representatives have to continue to perform their role until their reappointment is possible because employees must remain represented during a transfer. Lastly, the Directive imposes in article 7 a consultation requirement of the company’s workers’ representation bodies before the adoption of measures concerning employees and an information requirement concerning the details (especially the reasons and the consequences) of the transfer.
amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. 45 Council Directive 2001/23/EC 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 (date of effect : 11/04/2001)
