Lex localis - Journal of Local Self-Government_11(1)_January

716 L EX LOCALIS - J OURNAL OF L OCAL S ELF -G OVERNMENT D. Senčur Peček, S. Laleta & S. Kraljić: Labour Law Implications of Outsourcing in Public Sector The Court of Justice of the EU in its case law clearly holds that Directive 2001/23/EC may also apply in the event of the transfer of services within the scope of the public procurement procedure. In the case Liikene (C-172/99, 25 January 2001) 54 The Court took the view that there may be a transfer of an undertaking within the meaning of Directive 2001/23/EC even in the case where there is no direct contractual link between two undertakings who are successively providing a service; but only if there is a transfer of an economic entity which has retained its identity. With regard to the already mentioned case law, the Court of Justice of the EU considers the identity maintained, if the property is transferred or employees are taken over (depending on the type of the service). 55 In the case of the public procurement where a municipality or other local self- government institution (as well as other public entity) is delegating a service in which employees are the key element (e.g. cleaning, surveillance), the use of the institution of a change of employer depends on whether the contractor takes over (enters into the employment relationship with) employees of the contracting authority (or the current contractor). This situation undoubtedly occurs if the contracting authority lays down in the tender specifications the obligation for the provider to take over employees. Such cases of public procurement can be found in Slovenian case law, 56 with contracting authorities typically requiring the employment of the contracting authority's employees and, more rarely, the employment of those employees who have been transferred to the current service provider on the basis of the previous tender. It is interesting that the National Review Commission regarded the requirement of employment of the contracting authority’s former employees, who are employed by the current provider of services, as a disproportionate request that does not comply with the provisions of Public Procurement Act. 57 A similar (or seemingly stricter) position is clearly established in Croatian law 58 , where the practice demonstrates that contracting authorities do not require employees to be taken over in cases of public procurement, and no decisions of the State Commission for Supervision of Public Procurement procedures can be found in this regard. Otherwise, the obligation to take over employees, which is stipulated in the tender conditions or in the contract for the provision of services, is not a prerequisite for the institution of a change of employer to apply in the relation to the service in which employees are the crucial element. As can clearly be concluded on the basis of the decision issued by the Court of Justice of the EU in the case Süzen (as well as in the case Clece, which refers to the cleaning in local self-government institutions), the decisive factor is whether the new service provider has actually taken over former employees of the contracting authority or the current contractor. 59 Since the chosen contractor is generally not interested in employment relationships with employees of the contracting authority (or employees of the previous contractor) in cases of simple tasks (cleaning, surveillance), this condition typically fails to be met where this is not stipulated as mandatory (is not