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

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 719 to equalise the level of labour-law standards in individual Member States, thus prevent the race to the bottom (Jeffery, 2002: 670- 671). 6 OJ L 201; 17 July 1998. 7 OJ L 082; 22 March 2001. 8 First with ERA (Official Gazette of the RS no. 42/2002 and 103/07), now with ERA-1 (Official Gazette of the RS, no. 21/2013). 9 Official Gazette, no. 93/2014. (English version, by: Ministry of Labour and Pension System, http://www.mrms.hr/wp-content/uploads/2015/03/labour-act.pdf, 11 December 2016). This institution was regulated by the first Croatian Labour Act (1995, OG 38/95, 54/95, 65/95,17/01, 82/01, 142/03, 30/04, 137/04, 68/05), in Article 129. The provision was much shorter. 10 This is the Directive that has been under consideration the most frequently (Barnard, 2012: 578). 11 Although the reason for adoption of the Directive was mainly the regulation of the status of employees in the event of mergers and acquisitions, which had been associated with the single market, the notion of the transfer of an undertaking was already defined in a broader manner in the basic directive, so that in addition to the merger it also included the legal transfer (Jeffery, 2002: 682, 683). 12 The legal transfer is also a transfer that occurs on the basis of an administrative or legislative act (Sophie Redmond Stichting C-29/91, 19 May 1992; Temco , C-51/00, 24 January 2002 - act by a local authority; Martin and Others, C-4/01, 6 November 2003; Celtec , C-478/03, 26 May 2005 - privatisation), on the basis of a court decision (Abels, C 135/83, 7 February 1985; d'Urso, C-362/89, 25 July 1991; Dethier Equipment , C-319/94, 12 March 1998; Europieces , C-399/96, 12 November 1998 - cases of procedures where a company was dissolved by a court decision), and even without any of these legal acts, as well as without a contract (Merckx and Neuhuys, C-171/94 and C-172/94, 7 March 1996). 13 The Court already confirmed in the mid-eighties that contracts for the provision of services fall within the scope of the Directive, whereas some Member States and business lobbies opposed this decision (Jeffery, 2002: 683). 14 The Court of Justice of the EU held that the Directive is intended to cover any legal change in the person of the employer, if the other conditions it lays down are also met. See the judgement in the case Allen and Others, C-234/98, 2 December 1999, point 17. 15 This formulation was included in the Directive only with the amendments of 1998 and was based on case law. The Court of Justice of the EU stated several times in its decisions that the Directive applies only in the case where the undertaking whose operation was actually continued or resumed by the new employer retains its identity. 16 See the judgement in the case Schmidt, C-392/92, point 16; Süzen C-13/95, point 14. 17 Cases Sophie Redmond Stichting, Schmidt, Merckx and Neuhuys . 18 The Court considered the agreement on the transfer of ancillary activity of cleaning, which was prior to the transfer carried out by a single employee, the transfer of an undertaking within the meaning of the Directive. 19 The case referred to the second-stage transfer of service provision (contracting out). A company A, which had entrusted the cleaning of its premises to B, terminated this contract and, for the performance of similar work, entered into a new contract with C, without any transfer of tangible or intangible business assets from one undertaking to the other. 20 See the judgement in the case Süzen, point 15. 21 It is not decisive whether ownership of assets was transferred, but whether the new employer uses those assets to perform the same activities. 22 The judgement in the case Süzen, point 18.