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

720 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 23 The aim of the Directive is to ensure the continued existence of the employment relationship with the transferee, without changes to its form, in order to prevent the situation where employees affected by the transfer of an undertaking would be at a disadvantage because of the transfer. See also judgements in the case Spijkers (points 11 and 12); in the case Foreningen af Arbejdsledere i Danmark (105/84, point 26); in the case Daddy's Dance Hall (324/86, point 9); in the case D'Urso and Others (point 9); in joined cases Katsikas and Others (C-132/91, C-138/91 and C-139/91, point 21); in the case Europièces (point 37); in the case Juuri (C-396/07, point 28); in the case UGT-FSP (C- 151/09, point 40). 24 See Opinions of Advocate General Trstenjak in the case Clece, point 62; Advocate General Geelhoed in the case Abler and Others, point 79, Advocate General Cosmas in joined cases Hernández Vidal and Others , point 80. 25 The Court thus held that public transport services are based on assets (Liikenne), and so is catering in hospitals (Abler), while the drilling of tunnels in the mine is not asset-based (Allen). 26 VSRH, Revr 8/09, of 21 October 2009. 27 The judgements encompass the period from 2004 until today and consequently the application of Article 133 of the old Labour Act of 2010 (OG 149/09, 61/11, 73/13, 82/12,93/14), respectively Article 129 of the Labour Act of 1995. See VSRH, Revr 8/09, of 21 October 2009, VSRH, Revr 592/07-2 of 12 September 2009 and others. 28 VSRH, Revr-1904/09-2, of 23 March 2010. 29 The Supreme Court also emphasised the importance of the transfer of employees (or key assets) in a number of other cases related to the transfer of part of an undertaking - for example, in cases VIII Ips 29/2012; 7 May 2012 and VIII Ips 7/2015, 25 May 2015. 30 This is explicitly provided in Article 8 of Directive 2001/23/EC. 31 But not in the case of a contractual transfer of services to the first contractor (outsourcing). See the above-mentioned case of the Supreme Court of the RS VIII Ips 126/2009. 32 The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), SI 2006/246. These rules have amended rules from 1981 of the same name, SI 1981/1794. 33 According to Article 3, TUPE applies to a.) a transfer of an undertaking or part of an undertaking where there is a transfer of an economic entity which retains its identity, and b.) a service provision change, which covers situations where activities cease to be carried out by a contracting authority on his or her own behalf and are carried out instead by a contractor on behalf of the contracting authority; situations where activities cease to be carried out by the first contractor and are carried out instead by the subsequent contractor on behalf of the contracting authority; and situations where activities cease to be carried out by the first or subsequent contractor and are carried out instead by the client on his own behalf. The conditions under which TUPE applies in these situations are the following: there is an organised grouping of employees which has as its principal purpose the carrying out of the activities concerned on behalf of the client, and the activity is not transferred only for a single specific purpose, task or a short-term duration. If the listed conditions are met, TUPE applies, which means that legal protection of employees in the event of a contractual transfer of service provision again does not depend on the will of employers. 34 See point c of the first paragraph of Article 1 of the Directive. The same can be logically derived from point 14 of Article 137 of Croatian LA. 35 See the cases Redmond Stichting , Collino (C-343/98), Sanchez (C-173/96, C-247/96 and 74/97), Mayeur (C-175/99), Delahaye (C- 452/02).