Juridical Tribune Volume 5, Issue 2, December 2015
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
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
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 undertakings or
businesses that constitutes an economic unit, the rights and obligations arising