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

722 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 A proposal regarding the enactment of application of the institution of transfer of an undertaking in the case of concessions was presented also by a Slovenian trade union Pergam in its comments on the draft of ZJN-3. See the Letter by the trade union Pergam to the Ministry of Public Administration entitled Comments on the draft of ZJN-3 of 25 May 2015. 54 In this case, the city of Helsinki awarded the operation of local bus routes, previously operated by a company Hakunila Liikene, to a company Liikene following a public procurement procedure. Hakunilan Liikene dismissed all 45 drivers, 33 of whom were then employed by Liikene. The company Liikene bought no buses from the company Hakunilan Liikene. 55 In the case Liikene , the Court took the view that the economic entity did not retain its identity, because buses (key assets, which are necessary for the operation of this activity) were not transferred from the old to the new contractor. 56 See, for example, a small-value procurement (surveillance) NMV237/2016, published on 13 January 2016; public procurement (cleaning) JN002088/2016-X01, published on 2 June 2016; public procurement (cleaning) JN006830/2016-B01, published on 27 October 2016; public procurement (cleaning) JN5121/2011, published on 18 May 2011; public procurement (cleaning) JN2828/2015, published on 6 June 2015 and others. 57 See Decision No. 018-2932012-8 of 5 December 2012, which otherwise still refers to ZJN-2. 58 Article 4 of PPA (principle of proportionality) states that providers should not be disproportionately burdened. 59 According to the Court's opinion, it is not important for an economic entity in order to retain its identity whether the majority of employees are taken over following a contractual transfer, or whether it is the result of a unilateral decision made by the transferor to terminate the employment contracts of the transferred employees, followed by the employment of the majority of the same employees by the transferee. The Court emphasised in paragraph 38 of the case Süzen that "if the application of the directive depended on the fact that the contract was concluded between the transferor and the transferee, the protection of employees would be left to the discretion of the management of undertakings, for whom it would be open, by not agreeing to a contract, to avoid application of the Directive, which would be detrimental to the maintenance of transferred employees' rights that is required by Article 3.1. of the Directive." This position is unusual, considering the fact that the takeover of the transferor's employees is left to the discretion of the transferee as well. 60 See point 2 of this article. 61 Which undoubtedly occurs in the case where the contracting authority includes in the tender documents a condition that his or her employees, who performed these tasks (cleaning, surveillance, etc.), have to be taken over. 62 The same view was also adopted in the judgment VIII Ips 185/2014 of 13 January 2015. Refences: Barbić, J. (2002) Prijenos ugovora o radu prijenosom poduzeća i pogona poduzeća, Hrvatska pravna revija , 2, pp. 22-37. Barnard, C. (2012) EU Employment Law, Fourth Edition (Oxford, Oxford University Press). Barnard, C. & De Baere, G. (2014) Towards a European Social Union: Achievements and Possibilities under the Current EU Constitutional Framework (Leuven: KU Leuven).