The Public Sector as a Good Employer: The Application of the Acquired Rights Directive to Public Authorities

Abstract

Advocate General Mayras described a public authority as ‘that which arises from the sovereignty and majesty of the State; for him who exercises it, it implies the powers of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens’. This quotation has an eighteenth century flavour and is difficult to adapt to the complex legal and economic system of the European Community the extraordinary remit of which has extended to many activities traditionally reserved to the State and to public authorities. The scope of this remit blurs the distinction between what could be termed the exercise of a public power and what could be termed the exercise of an economic function. The ‘Europeanization of public service provision’ has thus rendered the definition of a ‘public authority’ elusive. One of the areas where such a definition has been particularly problematic is the protection of employees’ rights in the event of the transfer of an undertaking.