12.6 Employee Issues 423or natural person who is responsible for carrying on the business, regardless of
whether or not ownership of the undertaking is transferred. The decisive criterion
for establishing whether there is a transfer for the purposes of this Directive is
whether a new employer continues or resumes the operation of the unit in ques-
tion, retaining its identity.^54
According to case-law, the implementation of such rights conferred on employ-
ees may not be made subject to the consent of either the transferor or the trans-
feree nor to the consent of the employees’ representatives or the employees them-
selves.^55
This means that contracts of employment, or employment relationships, exist-
ing on the date of the transfer between the transferor and the workers assigned to
the undertaking transferred are automatically transferred from the transferor to the
transferee by the mere fact of the transfer of the undertaking.^56
There is only one exception. Following a decision freely taken by the worker
himself, he is at liberty, after the transfer, not to continue the employment rela-
tionship with the new employer.^57
Collective rights. The collective rights of employees consist of the employer’s
obligations to inform or consult the employees’ recognised representatives under
Community and national law. This means that there must be a labour law compli-
ance process in addition to a competition law and other compliance processes.^58
The national rules on employees’ representatives are involved in decision-
making within companies depend very much on the Member State. There is great
diversity of rules and practices.^59 For example, German law requires strict compli-
ance with extensive duties of disclosure.^60
However, EU merger and takeover law protects even the interests of employ-
ees. In addition, the collective rights of employees are based in particular on the
European Works Council Directive (EWC Directive).^61
Mergers and public takeover bids. Both domestic and cross-border mergers are
covered by a legal regime for informing and consulting employees. Rules on in-
(^54) Article 1(1) of Directive 77/187/EEC. See, for example, Case C-478/03 Celtec [2005]
ECR I-4389, paragraphs 33–35; Case C-458/05 Jouini et al [2007] ECR I-7301, para-
graphs 23–27 and 31–32.
(^55) Case C-478/03 Celtec [2005] ECR I-4389, paragraph 37.
(^56) Case C-478/03 Celtec [2005] ECR I-4389, paragraph 38.
(^57) Case C-478/03 Celtec [2005] ECR I-4389, paragraph 37. For the lack of rules on finan-
cial compensation, see C-396/07 Mirja Juuri v Fazer Amica Oy.
(^58) See also recital 45 of Regulation 139/2004 (EC Merger Regulation): “This Regulation in
no way detracts from the collective rights of employees, as recognised in the undertak-
ings concerned, notably with regard to any obligation to inform or consult their recog-
nised representatives under Community and national law.”
(^59) Recital 5 of Directive 2001/86/EC.
(^60) § 613a BGB. See also BAG, judgment of 20.3.2008 – 8 AZR 1016/06.
(^61) Directive 94/45/EC on the establishment of a European Works Council or a procedure in
Community-scale undertakings and Community-scale groups of undertakings for the
purposes of informing and consulting employees (as amended).