Ferreira da Silva e Brito and Others  EUECJ C-160/14
Case Reference EUECJ C-160/14
Legal BodyCourt of Justice EU (CJEU/ECJ)
Type of Claim / JurisdictionTUPE, Transfer of Undertaking
The Irish statute European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 implement requirements under the EU Directive of 2001. Síobhra analyses the recent case of Ferreira da Silva e Brito and Others  EUECJ C-160/14, where the CJEU considered whether the EU Transfer of Undertakings Directive (2001/23) would apply in a situation involving aircraft companies in Portugal. The case gives further insight into the decisive criteria for the application of TUPE, and how they will be considered by courts/tribunals in Ireland and throughout the EU. In particular, it supplements the already growing body of case law on how the retention of identity will be considered, which is all the better for practitioners.
A decision of the CJEU on the transfer of undertakings, and the “retention of identity” of part of a business is instructive to practitioners in advising on the transfer (or potential transfer) of employees. When advising on employment aspects in commercial transactions, particularly on the application of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘TUPE’), many practitioners fail to initially consider whether there is in fact a transfer of a business at all.
Most employers decide that there is, and assume that the obligations imposed under
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