| Abstract [eng] |
Definition of the Transfer of Undertaking in the Labour Law The present paper discusses the concept of transfer, emphasising its specificity and presenting its main problem areas, systematically analysing a range of sources with a focus on the reference literature, the Lithuanian and European Union legislature and case-law. The first part of the present paper discusses the introduction into the legislation of the concept with a focus on explanation of harmonisation of the Directive 2001/23/EC in the case-law of the Court of Justice of the European Union. It is stressed that the transfer of a business is found when the court establishes the whole of criteria required, therefore it was concluded that the analysed concept is evaluative, and therefore the priority shall be given to a more precise transfer of the directive into the national legislation, rather than the introduction of the concept into the legislation. The transfer of the provisions of the aforementioned directive into the Labour Code is also critically assessed, the recommendations regarding the improvement of the provisions of the Labour Code are provided, stressing the necessity of introduction of the provisions regulating the informing, consulting, and the procedure of business transfer itself. The proposals provided in the Labour Code project are discussed and their reasoned assessment is provided. In the other parts of the present paper, the concept of transfer of business or its part is revealed by means of different business transfer methods. The classical methods of transfer including the reorganisation of a legal entity and the composition of legal contracts, such as sales, lease, and purchase of services contracts, as well as non-classic cases when the business or its part is transferred on the basis of the judgement of the Court or of the subject of public administration, or of the public authority, are discussed. The analysis of the aforementioned methods implies a more precise explanation of the analysed concept because the judgements of the Court of Justice of the European Union, depending on the method of the transfer of business, provide different aspects meaningful to the finding of the transfer of business or its part. The specifics of each method is provided, their positive and negative aspects to the parties of employment relationships are enumerated, the arising key problems are stressed and assessed, the contribution of each analysed method to a more precise disclosure of the concept of transfer of business or its part is identified. |
