Spijkers v Gebroeders Benedik Abattoir CV [1986] 2 CMLR 296

Facts

At the slaughterhouse where Mr Spijkers worked, he held the position of Assistant Manager. On December 27th, 1982, the slaughterhouse, along with land and some other products, was sold to Benedik C.V. The operation of the abattoir became Benedik C.V.'s primary source of income after that point, and it was done so for the benefit of both Benedik B.V. and itself. Benedik C.V. took over the abattoir and hired all of the workers there, with the exception of Mr Spijkers and one other person. At the time of the sale, Mr. Spijker's old employer had completely halted all commercial activity, therefore there was no goodwill in the firm.

Mr. Spijkers said in his lawsuit that after the sale of the company, his position as an employee ought to have been taken over by Benedik C.V. The court of first instance in the Netherlands as well as the Regional Court of Appeal both ruled against him and rejected his petition.

Questions

The European Court of Justice has been asked to weigh in on these three matters.

1. Was there a transfer within the meaning of the Acquired Rights Directive (which will be referred to throughout this section and hereafter as "the directive") where buildings and stock are taken over and the transferee is merely enabled to continue the business activities of the transferor and subsequently does so in the buildings that were taken over?

2. Is it possible that the fact that the vendor's commercial operations had completely halted by the time the buildings and goods were sold, and that there was no goodwill in the firm, prevents a transfer from taking place?

3. Does the fact that customers are not taken over prevent there from being a transfer?

Held

The European Court of Justice came at this conclusion.

The European Court of Justice determined that the simple transfer of assets was not sufficient to establish a transfer on its own. A number of aspects, such as the type of business, whether tangible assets (such as buildings) are transferred, the value of intangible assets (such as goodwill), whether the majority of staff are taken over by the new employer, whether the customer/client base is transferred, the degree of similarity between the activities carried on before and after the transfer, and the length of any interruption of those activities, are some of the aspects that need to be taken into consideration as a whole together. All of these things had a significant role in determining whether or not the company itself would be moved.