Protection of shop stewards in transfers of undertakings: Danish supreme court ruling of 30 january 2024: Transfer of undertakings directive article 6; Danish transfer of undertakings act section 4

Abstract

A new ruling from the Danish Supreme Court gives perspective to Article 6 of Directive 2001/23/EC (ToU Directive). The ruling concerns the criteria for the continued function and protection of employee representatives under section 4(1) and (2) of the Danish ToU Act and Article 6(1) and (2) of the ToU Directive. At EU level, there is very little case law concerning Article 6 of the ToU Directive. One CJEU ruling was handed down in case C-151/09, in which the Court interpreted the concept of ‘autonomy’ in Article 6(1). The comment on the Danish Supreme Court ruling discusses the interpretation of the criteria for the continued function of shop stewards in a situation where the transferee is not covered by a collective agreement. The Eastern High Court assessment revolved around the lack of collective agreement as the basis for the function of the shop steward. The Supreme Court changed this, and instead reiterated that the criteria for the continued function of the shop steward is the preservation of the ‘autonomy’ or ‘independence’ of the transferred entity. The Danish ruling aligns with the wording of the EU Directive, but the Court did not interpret how to assess whether ‘the independence’ is preserved. In this regard, the CJEU ruling in C-151/09 is still the main source of interpretation. The Danish ruling continues to interpret the scope of the continued employment protection of the shop steward, in the situation where the function is not continued, as protected under Article 6(2) of the ToU Directive. The Supreme Court arrived at a solution whereby the employment protection continues for a period after the cessation of the functions as shop steward, which ceased at the date of transfer, until the end of the individual and extended notice period of the shop steward. Still, quite a number of questions on Article 6(1) and (2) concerning the function and protection of shop stewards in transfers of undertakings remain unanswered.