Background
ZN worked on an oil rig operated by GSP Offshore SRL in Romania. In February 2024, GSP Offshore transferred its workforce to OMV Petrom Energy Solutions SRL pursuant to a business transfer agreement, making OMV Petrom the employees’ new employer. OMV Petrom subsequently refused to assume responsibility for salary arrears that GSP Offshore had owed ZN for work performed before the transfer date, contending those debts remained with the transferor. ZN sued GSP Offshore for the unpaid wages, but the first-instance court dismissed the claim, holding that all employment obligations had automatically passed to OMV Petrom by operation of the transfer.
On appeal, the Curtea de Apel Constanța (Court of Appeal, Constanța) noted the tension between that automatic-transfer rule and Article 1605 of the Romanian Civil Code, which provides that an assignment of debt is only effective if the creditor consents. The referring court questioned whether that general civil-law provision could be treated either as an implementation of the optional joint-and-several-liability regime in Article 3(1), second subparagraph, of Directive 2001/23/EC, or alternatively as a “more favourable” national rule permitted by Article 8 of the Directive — in either case allowing ZN to hold GSP Offshore liable for refusing to transfer the debt without his consent.
The referring court was also troubled by OMV Petrom’s minimal share capital (approximately €400), which it considered insufficient to satisfy the salary claims of all transferred employees, raising concerns that the Directive’s protective purpose was being inverted to deprive workers of payment rather than safeguard their rights.
The Court’s Holding
The Court answered both referred questions against the application of Article 1605 of the Romanian Civil Code. On the first question, it held that Article 3(1) of Directive 2001/23 precludes the application of any national provision — whether general or special in character — that makes the transfer of employment-related obligations conditional on the creditor-employee’s consent. Drawing on the foundational ruling in Berg and Busschers (Cases 144/87 and 145/87, EU:C:1988:236) and consistent subsequent case-law, the Court reaffirmed that the automatic transfer of the transferor’s rights and obligations to the transferee operates by virtue of the transfer alone, without requiring the agreement of employees. The second subparagraph of Article 3(1), which permits Member States to impose joint and several liability on transferor and transferee, supplements but does not qualify that basic principle, and it cannot be implemented by a rule that instead prevents the automatic transfer by requiring employee consent.
On the second question, the Court held that Article 8 of the Directive likewise precludes the application of such a provision. While Article 8 preserves Member States’ freedom to maintain or introduce rules more favourable to employees, that freedom cannot be exercised in a way that undermines the minimum protection guaranteed by Article 3(1) — namely the automatic vesting of liability in the transferee — or that impairs the coherence of the Directive. Applying Article 1605 of the Civil Code in this context would do precisely that, because it would negate the transferee’s primary and automatic liability for pre-transfer employment obligations.
The Court added, however, that national courts retain the power to examine whether a particular transfer was structured abusively — that is, to exploit the automatic-transfer rule in order fraudulently to circumvent the Directive’s protective purpose — and may draw consequences accordingly if the objective and subjective elements of an abusive practice are established on the facts.
Key Takeaways
- Under Article 3(1) of Directive 2001/23, pre-transfer salary debts pass automatically to the transferee; employee consent to that transfer is legally irrelevant and cannot be required by national law.
- A Member State’s general civil-law rule conditioning debt assignment on creditor consent cannot function as an implementation of the optional joint-and-several-liability regime in Article 3(1), second subparagraph, because that option supplements but does not override automatic transfer.
- Article 8’s “more favourable to employees” clause does not authorise national rules that negate the transferee’s automatic and primary liability — such rules undermine rather than enhance the Directive’s minimum floor of protection.
- National courts may nonetheless investigate whether a transfer was structured abusively to deprive employees of effective payment, applying the EU law test for abuse of rights.
Why It Matters
This ruling closes a doctrinal gap that some national courts had sought to exploit: the idea that a creditor-consent requirement in general contract law could effectively restore liability to the transferor when the transferee is financially weak. The Court’s firm answer preserves the predictability and uniformity of the automatic-transfer mechanism across the EU, ensuring that parties to business transfers can rely on a single rule regardless of which Member State’s civil code applies. At the same time, the judgment signals that courts concerned about undercapitalised transferees being used as vehicles to extinguish salary debts have a legitimate path through the abuse-of-rights doctrine rather than through unilateral derogation from the Directive’s automatic-transfer principle.
For practitioners advising on cross-border or domestic business transfers — particularly asset-light deals where the “undertaking” consists primarily of transferred employees — the ruling underscores that pre-transfer wage liabilities will follow the employees to the transferee by default, and that structuring arrangements designed to frustrate that outcome may be challenged as abusive under EU law.