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C 278/18 EN Official Journal of the European Communities 5.9.

98

Reference for a preliminary ruling by the Industrial (vi) after being employed by company B the
Tribunal, Leeds, by decision of that court of 5 May 1998, employees carry out work for both companies A
in the case of G. C. Allen and others against and B as needed by the local management who
Amalgamated Construction Co. Limited are responsible for both companies;
(Case C-234/98)
(98/C 278/30) (vii) the work undertaken was continuous, there was
no suspension of activities at any time or any
change in the manner in which they were
conducted.
Reference has been made to the Court of Justice of the
European Communities by a decision of the Industrial
Tribunal, Leeds, of 5 May 1998, which was received at (1) Council Directive 77/187/EEC of 14 February 1977 on the
the Court Registry on 3 July 1998, for a preliminary approximation of the laws of the Member States relating to
ruling in the case of G. C. Allen and others against the safeguarding of employees' rights in the event of transfer
of undertakings, businesses or parts of businesses (OJ L 61,
Amalgamated Construction Co. Limited, on the following
5.3.1977, p. 26).
questions:

1. Is the Acquired Rights Directive (77/187/EEC) (1)
capable of applying to two companies in the same
corporate group which have common ownership,
management, premises and work or are such
companies a single undertaking for the purpose of the Reference for a preliminary ruling from the Arios Pagos
Directive? In particular, can there be a transfer of an by judgment of that court of 12 May 1998 in the case of
undertaking for the purposes of the Directive when Panagis Neophytos Pythagoras Pafitis and Others and
company A transfers a substantial part of its labour Trapeza Kentrikis Ellados AE and Others
force to company B in the same corporate group.
(Case C-235/98)

(98/C 278/31)
2. If the answer to question 1 is in the affirmative what
are the criteria for deciding whether there has been
such a transfer? In particular, has there been a transfer
of undertaking in the following circumstances: Reference has been made to the Court of Justice of the
European Communities by an order of the Arios Pagos
(Supreme Court of Cassation) of 12 May 1998, which was
(i) over a period of time the workers involved have received at the Court Registry on 6 July 1998, for a
been dismissed from company A, purportedly preliminary ruling in the case of Panagis Neophytos
for redundancy, and offered employment Pythagoras Pafitis and Others and Trapeza Kentrikis
with associated company B carrying out a Ellados AE and Others, pending before it, on the
geographical distinct undertaking or part of the following question:
undertaking of company A, namely the driving
of mine tunnels;

Does a dispute arising out of an increase in the share
(ii) no transfer of premises, management, capital of a public limited liability banking company and
infrastructure, materials or assets occurred the allocation of the new shares, which were the subject
between company A and B and the majority of of decisions taken under temporary administration by a
significant assets used by both companies in the temporary administrator, imposed on that company by the
work of driving main tunnels is supplied by a supervisory authority (Governor of the Bank of Greece),
third party, the mine operator; where that dispute subsists solely and exclusively as
between the company and the new shareholders who
acquired the new shares, on the one hand, and certain of
(iii) company A remains the sole contractor with the
its old shareholders, on the other, come within the vertical
third-party client which engaged it to work on
relationship of individuals and the State or State bodies so
construction projects which were undertaken on
as to require under the third paragraph of Article 189 of
a rolling' basis;
the EC Treaty the direct application, in order to deal with
the dispute in question, of the provisions of the
(iv) there was little or no contemporaneity between abovementioned Second Council Directive 77/91/EEC (1),
the movement of the workers from company A even before the Member State which is an addressee of the
to company B and the beginning and/or end of Directive has transposed the Directive into national law?
the contracts under which the work was
performed;
(1) OJ L 26, 30.1.1977, p. 1.

(v) company A and company B share the same
management and premises;