Foreneligheden mellem Virksomhedsoverdragelsesloven og de bagvedliggende direktiver: En afhandling, der undersøger foreneligheden mellem Virksomhedsoverdragelsesloven og direktiv 77/187EØF samt direktiv 2001/23/EF

Kira Rebecca Petersen & Milan Bodhi Silva Mørck

Studenteropgave: Kandidatafhandlinger

Abstrakt

Act on safeguarding employees rights in the event of transfer of undertakings (Virksomhedsoverdragelsesloven) hereafter VOL came into effect on 1 April 1979. The aim of VOL is safeguarding employees’ rights in the event of a change of employer following a transfer of undertaking. VOL specifies the employee's and employer's rights and obligations affected by a business transfer. Since the Act came into effect, it has been modified once by Act No. 441 of 7 June 2001. VOL implements the Business Transfers Directive 2001/23/EC, which is a European Union Law that protects employees working in businesses that are transferred between employers. The Business Transfers Directive is originally from 1977 (The Acquired Rights Directive 77/187/EEC), and has been codified in 2001 by Directive 2001/23/EC. The formulation of the Directive must be able to accommodate special conditions in national legislation of the member states and when transcribing the Directive it is essential that the translation is done in a prober legislation terminology that is formed within the country in which the Directive is implemented. The in practice crucial issues such as the extent of the obligations that the acquirer enters are not dealt with in the Danish legislation work and there are formulations in VOL that leads to even more questions than the original Directives own formulations in some crucial areas. As a result, the law has been the direct cause of a large number of legal issues that have been resolved through interpretation of the EEC Directive, including preliminary rulings by the European Court of Justice (ECJ) as well as some rulings from national courts. Regulation of employee's rights in the event of a business transfer is a very complex area. The issue is further complicated by the many legal sources within the EU and national law. The legal sources require an understanding of the concepts and interpretations, which has occurred over the years. Due to the above there are some indications that the implementation of the Directive into Danish legislation has been insufficient. Given the many legal and interpretation issues, that throughout the years have occurred, this thesis will conduct a comparative analysis of VOL and the underlying EC Directives in order to examine whether VOL is compatible to the Directives or whether there is a possible discrepancy. The thesis will discuss the formulation of the respective legal sources and analyze interpretation issues that in this regard have occurred. The thesis examines the following main issue: Is Act on safeguarding employees rights in the event of transfer of undertakings compatible with the underlying Directives? Overall, the comparative analysis provided an unexpected result. In areas where we expected to find a discrepancy between the Directive and VOL which would provide Danish employees worse safeguarding than they are entitled to, there were no such discrepancy to be found between the Directive and VOL. In other areas, we found that there are discrepancies between the Directive and VOL. These discrepancies, however, provide better safeguarding of Danish employees than they are entitled to in accordance with the Directive and therefore complies with Article 8 (Directive 2001/23/EC). Article 8 provides legal basis for the national legislature authority to introduce legislation that provides better safeguarding to employees than required by the Directive's minimum requirements. Of crucial character we found VOL's failure to implement Article 3. 3 (Directive 2001/23/EC), which may have significant impact on Danish employees payment and working conditions in the event of a business transfer. This lack of legislative provision in the VOL means that Danish employees in certain situations are likely to be provided considerably worse safeguarding than they are entitled to. In this area a significant discrepancy is found between VOL and the Directive and a legislative proposal could be required.

UddannelserCand.merc.aud Regnskab og Revision, (Kandidatuddannelse) Afsluttende afhandling
SprogDansk
Udgivelsesdato2012
Antal sider158