Outsourcing som verksamhetsöverlåtelse - Om överlåtelsedirektivet 2001/23/EG tillämplighet vid outsourcing och kollektivavtalade villkor vid verksamhetsöverlåtelse enligt direktivet

Detta är en Kandidat-uppsats från Lunds universitet/Institutionen för handelsrätt

Sammanfattning: As a consequence to the increased globalization and deregulation of trade restriction which previously ruled within the EU market, new flexible corporate structures have risen within the labour market. The swift development within the corporate structures has occasionally led the rights of the employment to be left in the dark in cases of corporate acquisitions. The reigning directive 2001/23/EG was for that reason put in place in 1977. The directive for corporate acquisitions was supposed to clarify the rights and obligations which follows the transfer of undertakings. In the above mentioned directive it was made clear that transferred employees are protected against both termination and restrictions to the earlier employment conditions. Today's business environment is characterized by constant changes where efficiency and flexibility are a prerequisite for staying competitive on the market. Companies therefore increasingly choose to focus on the core business and to delegate to external parties the services that do not form a major part of the company. Which is the fundamental of outsourcing. Outsourcing is an increasingly common mission model that can be found in most major, but also smaller companies. The activities that are common outsourcing objects are characterized by being part of the company's service functions such as restaurant, cleaning or tech. The directive's application for outsourcing has been more difficult for the European Court of Justice to interpret than traditional transfers, as outsourcing situations are more complex and therefor in the border area with the applicability of the Directive. One reason for this is that both the employer's commercial interests and employee protection need to be taken into account when assessing the applicability of the Directive. The European union has in this case said that an overall assessment is based on the Spijkers criteria that define what constitutes an economic entity with a preserved identity. The transfer shall also be deemed lawful by the fact that a contractual context has occurred within the transfer and that the employer has transferred to the acquirer. If a transfer fulfills the requirements for the Directive to be applicable, it may further be discussed how such a transfer affects the collectively agreed terms of both the acquirer and the transferor. The question is interesting in that Swedish collective law carries out a large part of the country's regulated terms of employment. The legal consequences for this can thus mean major changes in the employment and in the workplace as a whole. How collective agreement conditions apply when transferring the activity depends on the manner in which the transferor's and acquirer's collective bargaining agreement appears at the time of the transfer. Both internationally and nationally, precedents have been formed on how to deal with the issue based on the specific case. Both statutory law and precedents show that previous collective agreement terms that exist at the transferor are subject to special protection. However, such protection is limited to being valid only for a certain period of time. Thereafter, the idea is that the new employees will eventually grow into the acquirer's company and also apply the acquirer's own collectively agreed terms. The questions in this essay is affected by numerous unexpected provisions and legal effects.

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