Succession and transfer of businesses in Belgium
| Autor | Pieter Pecinovsky |
| Páginas | 3-10 |
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In Belgium the transfer of business regulated by a collective agreement (see infra). To interpret the meaning of the provisions of this regulation the Belgian courts and doctrine will often look to the case law of the EU Court of Justice on the meaning of the provisions of Directive 2001/23/EC. The Belgian legal order thus tries to stay as close as possible to the meaning of the Directive. However sometimes the offered protection to transferred workers goes further than the one to be found in the minimum provisions of the Directive. As will be seen, sometimes there is still discussion in the legal doctrine on the scope of the granted protection.
Collective Agreement no. 32 bis has implemented the directive. The full title is Collective agreement no. 32 bis of 7 June 1985 on the conservation of workers' rights at the change of employers in case of a transfer of companies under agreement and regulating workers' rights who are to be taken over in case of transfer of assets after bankruptcy, amended by Collective agreement no. 32 ter of 2 December 1986, no. 32 quarter of 19 December 1989 and no. 32 quinquies of 13 March 2002. This is a national collective agreement, concluded in the National Work Council and which is made generally applicable and thus binding for all.
· Classic case of transfer of business
Article 6 Collective agreement 32 bis defines the scope of the transfer of business rules as follows: -[e]very change of employer which is caused by any transfer of business, or a transfer of a part of the business, by agreement.- As transfer is to be qualified every transfer in view of the continuation of an activity (whether or not mainly economical), of an economic entity which maintains its identity, in the sense of an entirety of organized of resources. This article clearly refers to article 1 of the Directive.
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The notion -economic entity- refers to an organized grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective. An undertaking is seen as a social and economic whole, based on economic and social criteria. In case of doubt, the social criteria prevail.
Of most importance is the question whether the identity of the transferred enterprise is maintained or not. If not, it will not fall under the scope of the Directive, nor of Collective agreement 32 bis. In order to decide whether or not an undertaking retains its identity it is necessary to consider whether or not the undertaking was disposed of as a -going concern-. To find out whether this is the case, the judge has to look at the factual circumstances, like:
- the type of undertaking or business;
- whether or not the business’s tangible assets are transferred;
- the value of its intangible assets at the time of the transfer;
- whether or not the majority of its employees are taken over by the new employer;
- whether or not its customers are transferred;
- the degree of similarity between the activities carried on before and after the transfer;
- the period, if any, for which those activities were suspended.
The Court of Justice confirmed in several occasions that before a decision can be made, it is necessary to consider all the facts characterizing the transaction in question. No single factor is decisive...
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