Arbetstagarskyddet vid verksamhetsövergång med flera förvärvare

Sammanfattning: The protection of employees in the case of business transfers is regulated within the European Union (EU) by Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of the transfer of under-takings, businesses or parts of undertakings or businesses (Transfer of Un-dertakings directive). In Swedish law, the rules have been implemented through amendments to the law (1982:80) on employment protection (LAS) and law (1976:580) on co-determination in working life (MBL). This thesis distinguishes the definition of an employee and the employee protection in perspective of the Transfer of Undertakings directive, as well as a presentation of the employee protection regulation and its purpose in Sweden and in the EU. The thesis is based on a combination of a traditional legal method and the EU-legal method. The employee protection aims to protect employees’ rights in the case of busi-ness transfers which entails a change of employer, and to enable the employ-ees to continue their employment under the same conditions as with the trans-feror. It includes a number of rights and obligations. The employee always has the possibility to let the employment remain with the transferor. The Transfer of Undertakings directive also entails an obligation for both the transferor and the transferee to inform the relevant employee representatives about certain points concerning the transfer, such as the time of the transfer. Thus, the right to information and consultation goes to workers' unions and not to individual workers. Workers who are not union members lack such right. The fact that the employment contract or employment relationship changes from the transferor to the transferee means that the transferee enters into the employment contract as it appears at the date of the transfer. The terms of em-ployment that are transferred can be divided into four categories: statutory, collective agreements, those that are part of the individual employment con-tract and those that are unilateral employer gifts. All the terms are transferred to the transferee, but the collective agreements with certain limitations. Alt-hough the Transfer of Undertakings directive does not explicitly regulate the termination of employment or the right to re-employment, these may be re-garded as a consequence of the rights and obligations being transferred to the new employer. A large part of the employee protection in the case of business transfers con-sists of the prohibition of dismissals. The prohibition means that redundancies may not take place due to the transfer. However, dismissals due to economic, technical or organizational reasons are still permitted. The main question of this thesis relates to business transfers with several transferees. Since the employee protection includes the right for the employee to follow the transfer to the transferee, problems arise when there are several transferees. On the subject, the Belgian Court of Labour has requested a pre-liminary ruling from the European Court of Justice, asking how it should be decided to which transferee an employee will transferred. It is in this prelimi-nary ruling that the analysis of this thesis takes off. A business transfer in the meaning of the Transfer of Undertakings directive is a transfer of an economic entity that retains its identity, and which is under-stood to mean an organized grouping of assets which has the objective to car-ry out economic activity. In order to determine whether the transfer is covered by the directive, the so-called Spijkers criteria are used. These take into ac-count, inter alia, whether tangible assets have been transferred and the degree of similarity between the business before and after the transfer. To answer how it is decided to which transferee the employees will follow, the answer is sought in case law and in the purposes of the Transfer of Un-dertakings directive. It is not possible to predict with absolute certainty how the European Court of Justice will judge in its preliminary ruling, but a proba-ble approach can be considered. Having determined that it is a transfer cov-ered by the directive and national rules, it will be crucial to find whether the employee has an employment relationship and, if so, to which business part or parts the employee was assigned.