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DOI: 10.33226/0032-6186.2020.3.6
JEL: K31

Transfer of an undertaking — an activity which requires substantial operating resources

The Court of Justice of the EU on 27 February 2020 issued a judgement in case C-298/18, Reiner
Grafe, Jürgen Pohle vs. Südbrandenburger Nahverkehrs GmbH, OSL Bus GmbH. According to the
Court in the context of the takeover by an economic entity of an activity the pursuit of which requires
substantial operating resources, under a procedure for the award of a public contract, the fact that that
entity does not take over those resources on account of legal, environmental and technical constraints
imposed by the contracting authority, cannot necessarily preclude the classification of that takeover
of activity as a transfer of an undertaking, since other factual circumstances, such as the taking-over
of the majority of the employees and the pursuit, without interruption, of that activity, make it
possible to establish that the identity of the economic entity concerned has been retained.

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Keywords: transfer of an undertaking; re-employment of the staff; operating resources not taken over.
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