Opinion of Advocate General Van gerven delivered on 24 May 1992

1 Original language: Dutch.

2 OJ 1977 L 61, p. 26.

3 For the relevant part of the provision, see the Report for the Hearing.

4 Civil Code, Article 285(3). See, in particular, Asser/Van der Grinten: De rechtspersoon, Volume II of Asser's handleiding tot de beoefening van het Nederlands burgerlijk recht, Zwolle, Tjeenk Willink, 1986, section 471, pp. 347-349.

5 See in this connection inter alia V. A. M. Van der Burg, De onderneming in het stichtingsgewaad, in Van vennootschappelijk belang (Maeijerbundel), Zwolle, Tjeenk Willink, 1988, p. 21 et seq.; Dijk/Van der Ploeg, Van vereniging, coöperatie en stichting, Arnhem, Gouda Quint, 1991, p. 13. The use of foundations in connection with groups in this connection appears inter alia from the numerous purchasing and sales centres set up as foundations, research foundations, foundations involved in implementing the rules on competition, foundations operating as administrative offices in connection with the certification of shares in public limited companies (whereby the foundation holds the shares and issues certificates to the former shareholders) and the placing of shares in a foundation by large shareholders without successors with a view to ensuring the continuity of the undertaking: W. J. Slagter, Compendium van het ondernemingsrecht, Deventer, Kluwer, 1990, p. 335.

6 See the first and second recitals in the preamble to the directive.

7 Judgment in Case 135/83 Abels v Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische Industrie f 1985] ECR 469, paragraph 18 in fine.

8 Judgment in Case C-362/89 D'Urso [1991] ECR I-4105, paragraph 23.

9 It was announced in the Council Resolution of 21 January 1974 concerning a social action programme (OJ 1974 C 13, p. 1, more specifically at p. 4).

10 Second recital in the preamble to the directive.

11 Fifth recital in the preamble (OJ 1977 L 61, p. 26); see also in this connection the judgment in Abels, cited above, paragraph 18.

12 Judgments in Case 287/86 Ny Mølle Kro [1987] ECR 5465, paragraph 12, in Case 324/86 Tellerup v Daddy's Dance HaII[1988] ECR 739, paragraph 9, in Joined Cases 144 and 145/87 Berg v Besselsen [1988] ECR 2559, paragraph 12, in Case 101/87 Bork International v Foreningen af Arbejdsledere i Danmark [1988] ECR 3057, paragraph 13, and in D'Urso, cited above, paragraph 9.

13 Judgments in Berg, paragraph 13, and D'Uno, paragraph 9.

14 Judgment in Ny Mølle Kro, paragraph 11; and see the earlier judgment in Case 19/83 Wendelboe [1985] ECR 457, paragraph 15, and Berg, cited above, paragraph 13.

15 OJ 1985 L 370, p. 1.

16 Judgment in Case C-7/90 Vandevenne [1991] ECR I-4371, paragraph 6.

17 Judgment in Case C-41/90 Höfner and Eher [1991] ECR I-1979, paragraph 21.

18 See, inter alia, the judgments in Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 17, in Case 197/86 Brown [1988] ECR 3205, paragraph 21, in Case 344/87 Bettray [1989] ECR 1621, paragraph 12, and in Case C-3/90 Bernini [1992] ECR I-1071, paragraph 14.

19 Judgments in Case 105/84 Danmols Inventar [1985] ECR 2639, paragraph 28, and in Case 237/84 Commission v Belgium [1986] ECR 1247, paragraph 13.

20 Judgments in Case 24/85 Spijkers v Benedik [1986] ECR 119, paragraphs 11 and 15, and in Ny Mølle Kro, cited above, paragraph 18.

21 Judgments in Spijkers, paragraph 12, and in Ny Mølle Kro, paragraph 18.

22 Judgment in Spijkers, paragraph 13. The Court reiterated a number of those factors in tne judgment in Bork International, paragraph 15.

23 This appears from paragraph 4 of the judgment.

24 Judgment in Spijkers, paragraph 14.

25 According to the Court, in order to determine whether the employees were dismissed for those reasons or solely as a result of the transfer, it is necessary to take into consideration the objective circumstances in which the dismissal took place: judgment in Bork International, paragraph 18.

26 See, expressly, the judgment in Case 139/85 Kempf [1986] ECR 1741, paragraph 12.

27 Judgment in Danmols Inventar, cited in footnote 18, para* graph 10.

28 Judgments in Ny Mølle Kro, paragraph 12, Daddy's Dance Hau, paragraph 9, and Berg, paragraph 17.

29 In particular the German (vertragliche Übertragung), French (cession conventionnelle), Greek (συμβατική εκχώρηση), Italian (cessione contrattuale) and Dutch (overdracht krachtens overeenkomst): see the judgment in Abels, paragraph 11.

30 Paragraph 13. More specifically with regard to the question referrea for a preliminary ruling, the Court added that the meaning of the provision had to be clarified in the light of its place in the system of Community law in relation to the rules on insolvency, ibid.

31 Judgment in Berg, paragraph 19.

32 Judgment in Daddy's Dance Hall, paragraph 10; cf. paragraph 14 of the judgment in Bork International.

33 See the three judgments in Case 41/69 A CF Chemiefarma v Commission [1970] ECR 661, paragraph 112, in Case 44/69 Buckler v Commission [1970] ECR 733, paragraph 25, and in Case 45/69 Boehringer v Commission [1970] ECR 769, paragraph 28.

34 See also section 11 of my Opinion in Case C-279/87 Tipp-Ex v Commission [1990] ECR I-261 (summary publication, opinion not published in the ECR).

35 See also as regards the need for an overall view of the contractual relationship between the parties, section 8 of my Opinion in Case C-277/87 Sandoz v Commission [1990] ECR I-45 (summary publication, Opinion not published in the ECR).

36 Thus, in order for there to be an agreement within the meaning of Article 85(1) of the Treaty, it is not necessary for it to constitute a valid and binding contract under national law: judgment in Case C-277/87 Sandoz v Commission [1990] ECR I-45 (summary publication), at the end of paragraph 2 of the summary of the judgment; see also the judgment in Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, paragraphs 85 and 86.

37 For definitions coming under company law and revenue law, respectively, see Articles 3(1) and 4(1) of the Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited companies (OJ 1978 L 295, p. 36) and Article 2(l)(a) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1).

38 First recital in the preamble to the directive.

39 OJ 1989 L 395, p. 1.