OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 10 November 1992

1 Original language: Dutch.

2 Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, p. 26).

3 Bundesgesetzblatt I, p. 13.

4 Bundesgesetzblatt I, p. 1308.

5 Judgment of the Bundesarbeitsgericht of 2 October 197!, BAG AP, Paragrapli 613a of the BGB, paragraph 1.

6 Judgments of 21 July 1977, BAG AP, Paragraph 613a of the BGB, paragraph 8, of 17 November 1977, BAG AP, Paragraph 613a of the BGB, paragraph 10, of 6 February 1980, BAG AP, Paragraph 613a of the BGB, paragraph 21, of 15 February 1984, BAG AP, Paragraph 613a of the BGB, paragraph 37, and, most recently, of 30 October 1986, BAG AP, Paragraph 613a of the BGB, paragraph 55.

7 In its written observations, the German Government also claims that the right of objection is based on the prohibition of forced or compulsory labour set out in Article 4(2) of European Convention on Human Rights.

8 Judgments in Case 287/86 Ny Molle Kro [1987] HCR 5465, paragraph 12, in Case 324/86 Foreningen af Arbejdsledere i Danmark v Daddy's Dame Hall [1988] ECR739, paragraph 9, in Joined Cases 144/87 and 145/87 Berg v Beuchen [1988] ECR2559, paragraph 12, in Case 101/87 Bork [1988] ECR 3057, paragrapli 13, and in Case 326/89 D'Uno [1991] ECR I-4105, paragraph 9.

9 Judgments in Berg v Bestehen, paragraph 13, and in D'Urso, paragraph 9.

10 For an outline of the system of the directive, sec, inter alia, the judgments in Case 19/83 Wendelboe [1985] ECR 457, paragraph 15, and in Ny Malte Kro, paragraph 11.

11 Judgments in Case 105/84 Foreningen af Arbejdsledere i Danmark v Danmols Inventar [1985] ECR 2639, paragraph 16, and in D'Urso, paragraph 11.

12 Third recital in the preamble to the directive.

13 Judgments in Danmols Inventar, paragraph 26, and Daddy's Dance Hall, paragraph 16.

14 Judgment in Berg v Besselsen, paragraph 11.

15 Judgment in Berg v Besselsen, paragraph 12.

16 Yet another question has been raised in Case C-126/92 Esser —which is still pending —that is to say whether, in so far as it docs not provide for a right of objection, Article 3(1) is incompatible with the right freely to exercise one's occupation. I shall not consider that issue in this Opinion. Suffice it to say that, if it appeared at first blush to be incompatible with that fundamental right, Article 3(1) could still be interpreted consistently with it, at least in so far as the view is taken (as taken by myself later in this Opinion) that Article 3(1) does not preclude such a right of oujection on the part of employees.

17 Judgment in Daddy's Dance Hall, paragraph 14; this pas-sage has recently been confirmed in paragraph 11 of the judgment in D'Urso.

18 Judgment in Daddy's Dance Hall, paragraph 15.

19 Ibid.. paragraph 17.

20 For a summary of the Commission's views, see the Report for the Hearing.

21 This part of the alternative is not reaily relevant to the present cases, since the other part of the alternative affords a solution in Germany (see sections 20 and 21, above). It may, however, be relevant in the case of other Member States in which, according to the data made available to the Court, there arc no rules laid down by law, administrative provision or case-law on any right of objection.

22 Judgment in Daddy's Dance Hall, cited in section 16, paragraphs 14 and 15.

23 There is plainly no need to consider here — and the national courts have not asked the Court to do so — whether other aspects of the case-law of the Bundesarbeitsgericht on transfers of undertakings comply with the directive. This applies in particular to Article 4(1) of the directive, under which the transfer shall not in itself constitute grounds for dismissal by the transferor or the transferee (see Paragraph 613a(4) of the BGB), and to the manner in which that provision is applied with regard to employees who exercise their right of objection so as to remain in the employ of their former employers and whom those employers subsequently wish to dismiss.

24 The precise duration of that period is not specified in the case-law. Some academic writers suggest that it is one month, others two weeks.

25 Sec the passage from the judgment in Berg v Besselsen reproduced in section 15, above.

26 Moreover, failure to inform employees about the transfer in due time before it is to take pracé infringes the employer's obligations referred to in Article 6(1) of the directive.