CJEU Case C-160/14 | João Filipe Ferreira da Silva e Brito and Others v Estado português

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Publication Date 2014-2015
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Summary:

Information Guide concerning Case C-160/14 from the Court of Justice of the European Union (CJEU) on the meaning of transfer of a business, the obligation to make a request for a preliminary ruling and the rights of employees in the event of transfer of businesses or undertakings.

Further information:

Air Atlantic (AIA) - a company operating in the charter flights market - was wound up in February 1993. In this operation, 97 individuals were dismissed as part of a collective redundancy. From May 1993, the main shareholder of AIA - TAP - started operating some of the flights which AIA had contracted to provide until October 1993. It also started operating some new routes previously covered by AIA. TAP also used some of the equipment and assets which AIA had used for its business, and recruited a number of former AIA employees.

The 97 employees made redundant brought an action against the collective redundancy before a Labour Court in Portugal (Tribunal do Trabalho de Lisboa). They sought reinstatement and payment of remuneration. The Court found there had been a transfer of business and ordered that the employees be reinstated in the corresponding grades and that they be paid compensation. Following an appeal, the Lisbon Court of Appeal (Tribunal da Relação de Lisboa) set aside the judgment given at first instance. The employees then brought an appeal in cassation before the Portuguese Supreme Court (Supremo Tribunal de Justiça), which held in 2009 that the collective redundancy was not unlawful.

A number of employees asked the Supreme Court to make a reference to the CJEU for a preliminary ruling but the national court considered that there had been no material doubt to the interpretation of EU law - Directive 2001/231 - which would make such a reference necessary. The employees then brought an action before the Court of First Instance in Lisbon (Varas Cíveis de Lisboa), for a declaration of non-contractual civil liability against the Portuguese State. They maintained that the Supreme Court judgment was unlawful because, among others elements, it interpreted incorrectly the concept of a transfer of a business, and it was obliged to refer the question to the CJEU concerning the interpretation of that concept.

On 9 September 2015, the Court of Justice ruled that the Portuguese Supreme Court was obliged to seek preliminary ruling on the concept of transfer of a business and that the Portuguese State would have to pay compensation to the employees of TAP's former subsidiary.

Related Links
Commentary and Analysis
EU Law Analysis, 13/09/2015: Final courts’ obligations to refer questions: the CJEU clarifies CILFIT http://eulawanalysis.blogspot.com/2015/09/final-courts-obligations-to-refer.html
Leiden University: Law Blog, 22/09/2015: Shining a light on the acte clair https://leidenlawblog.nl/articles/shining-a-light-on-the-acte-clair
European Law Blog, 29/09/2015: Joined cases C-72/14 and C-197/14 X and case C-160/14 Ferreira da Silva: is the ECJ reversing its position on the acte clair doctrine? https://europeanlawblog.eu/2015/09/23/joined-cases-c-7214-and-c-19714-x-and-case-c-16014-ferreira-da-silva-is-the-ecj-reversing-its-position-on-the-acte-clair-doctrine/
UNIO - EU Law Journal: Case Notes, 16/11/2015: State liability for judicial decisions – between the Portuguese regime and EU law, some lights in the Ferreira da Silva judgment https://officialblogofunio.com/2015/11/16/state-liability-for-judicial-decisions-between-the-portuguese-regime-and-eu-law-some-lights-in-the-ferreira-da-silva-judgment/
Eurocases: News, 13/01/2016: Case C-160/14 Ferreira da Silva and Others - A more lenient approach towards the acte clair doctrine? https://eurocases.eu/en/News?20/Case++C-160%2F14+Ferreira+de+Silva+and+others+%E2%80%93+a+more+lenient+approach+towards+the+acte+clair+doctrine%3F

Official
CJEU CURIA: Case C-160/14 | Ferreira da Silva e Brito and Others http://curia.europa.eu/juris/documents.jsf?num=C-160/14
CJEU: Press Release No 96/15, 09/09/2015: Judgment in Case C-160/14 João Filipe Ferreira da Silva e Brito and Others v Estado português https://curia.europa.eu/jcms/upload/docs/application/pdf/2015-09/cp150096en.pdf

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