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:Department of Law, Portucalense Infante D. Henrique University
Pages:106-123
SUMMARY

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 subrogation ex lege of the transferee in the rights and obligations arising from the employment relationship existing on the date of a transfer. This issue is of the... (see full summary)

 
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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
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 or a legal 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 shape d 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 empl oyees' 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.
Keywords: 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 lege 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 undertakings or
businesses that constitutes an economic unit, the rights and obligations arising

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