Analysis of the Portuguese legal framework concerning the safeguarding of employees' rights in the event of the transfer of an undertaking or an establishment compliance with the directive 2001/23/CE of 12 march 2001

• Author: Sónia de Carvalho
• Position: Assistant Professor
• Pages: 106-123

Analysis of the Portuguese le gal framework concerning

the safeguarding of employees' rights in the event of the transfer

of an undertaking or an establishment compliance with the directive

2001/23/CE of 12 march 2001

Assistant Professor Sónia de CARVALHO

1

Abstrac t

The undert aking , b usiness, o r part of an un dertaki ng or bu siness can b e

transferred to anothe r person or corporati on as a result of a merger o r a leg al transfer,

transit ory or definit ive. As a con sequence of the transfer, t here is subroga tion ex lege of the

transferee in the rights a nd obl igations a rising from the employment relationshi p existing

on the date of a tra nsfer. This issu e is of the ut most import ance to acco mplish the freedo m

of the employer n egotiate the unde rtaking and the pro tection of employe es' rights as well.

The Portug uese leg al framework h as been shap ed by Directi ve 77/ 187/ CEE an d

subsequ ently b y Directive 2001/23 /CE. In th is paper, in order to assess th e compliance o f

the legal framewo rk conc erning th e enshrin ed in La bor Co de with the Direct ive 2001/2 3

/CE, it will b e performed a comparati ve analy sis between both regula tions, which will b e

coordi nated with t he case law from the Cou rt of Justi ce and Portuguese Courts. We w ill

concl ude that , ap art from some issues, the Port uguese lab our la w regard ing t he

safeguard ing of emp loyees' righ ts in t he event of the t ransfer of an undertak ing co mplies

with t he Directive 2001 /23 /CE and the ca se law from the Court of Justi ce.

Keyword s: Directive 2001 /23/CE, Portug uese Labour Law, tran sfer of

undert aking

JEL Cla ssification: K31

1. Introduction

The undertaking, business, or part of an undertaking or business can be

transferred to another person or corporation as a result of a merger or a legal

transfer, transitory or definitive.

As a consequence of the transfer, there is a subrogation ex leg e of the

transferee in the transferor rights and obligations arising from the employment

relationship existing on the date of a transfer.

This issue is of the utmost importance to accomplish the freedom of the

employer to negotiate the undertaking and the protection of employees' rights as

well.

1

Sónia de Carvalho - Department of Law, Portucalense Infante D. Henrique University, Researcher

at IJP - Port ucalense Institute for Legal Research, Port o, Portugal, scarvalho@upt.p t .

Juridical Tribune Volume 5, Issue 2, December 2015

107

The Portuguese legal framework has been shaped by Directive 77/187/CEE

and subsequently by Directive 2001/23/CE.

In this paper, in order to assess the compliance of the legal framework

provided in Labour Code with the Directive 2001/23/CE, we will perform a

comparative analysis between both regulations, which will be coordinated with the

case law Court of Justice of European Union and Portuguese Courts.

Contrary to what happened in the art. 319º/ 3 of the Portuguese Labour

Code 2003 (CT2003), the transferee no longer has the right to post a notice in the

workplace to inform the workers that they have a deadline of three months claim

their credits. Under that rule, the transferee was not liable for the payment of

credits that were not claimed within that deadline.

We intend to discuss the removal of this rule in Portuguese Labour Code

2009 (CT), questioning its validity in light of Directive 2001/23/EC.

We will also evaluate the circumstances under which the employee may

oppose the transfer of his contract employment contract to the transferee.

We will analyse the compatibility of art. 285º/4 of the Portuguese Labour

Code 2009 with Directive 2001/23/EC, considering that this provision excludes

from the undertaking, business, or part of an undertaking or business transfer legal

frame work workers, whose employment contract the transferor has decided to

maintain, but that are transferred to another business or part of the undertaking by

referring to the legal framework concerning the workplace transfer ruled by

art. 194º of the CT.

We will also examine the issues raised by the compliance of the duty to

inform and to consult the representatives of employees by transferor and transferee

and by the protection granted to the status and function of the representatives or of

the representation of the employees of the economic unit transferred.

Throughout this paper, we will address, where necessary, the law of the

European Union, in particular, Directive 2001/23/EC and the case law of the Court

of Justice.

We will conclude that, apart from some issues, the Portuguese labour law

regarding the safeguarding of employees' rights in the event of the transfer of an

undertaking complies with the Directive 2001/23/CE and the case law from the EU

Court of Justice.

2. The transfer of undertakings, businesses or parts of undertakings

or businesses

The legal framework concerning the safeguarding of employees' rights in

the event of transfers of undertakings, businesses or parts of undertakings or

businesses is enacted by art. 285º/1 of the CT, which states that " In the case of

transmission, by any title, of undertakings, businesses or parts of undertaking s or

businesses that con stitutes an economic unit, the rights and obliga tions arising