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Begreppet verksamhetsöverlåtelse och dess tillämpning på detaljhandeln

Mellberg, Elisabet (2008)
Department of Law
Abstract
The aim of this study is to investigate the concept of transfer of an undertaking and apply the result to in the retailing branch. The questions to be answered are: What is included in the concept of transfer of an undertaking? When is a transfer within retailing to be concidered as a transfer according to article 1.1 in the directive 2001/23/EG and in 6 b § LAS? In 1977 the directive 77/187/EG was adopted. Since some parts of the directive needed clarification so the directive was changed and from 2001 the applicable directive is 2001/23/EG. The purpose of the directive is to protect employees' rights in the event of a transfer of an undertaking, business or parts of an undertaking or business. In Sweden the directive was implemented in... (More)
The aim of this study is to investigate the concept of transfer of an undertaking and apply the result to in the retailing branch. The questions to be answered are: What is included in the concept of transfer of an undertaking? When is a transfer within retailing to be concidered as a transfer according to article 1.1 in the directive 2001/23/EG and in 6 b § LAS? In 1977 the directive 77/187/EG was adopted. Since some parts of the directive needed clarification so the directive was changed and from 2001 the applicable directive is 2001/23/EG. The purpose of the directive is to protect employees' rights in the event of a transfer of an undertaking, business or parts of an undertaking or business. In Sweden the directive was implemented in LAS, the employment protection act, and MBL, the co-determination act. The European Court of Justice has constantly changed and modified its position on when a transfer is to be considered as a transfer within the meaning of the directive. However, some prominent elements have been more significant in practice then others. It has been stated that a total assesment shall be made to decide whether the identity of the activity is maintained as a ''going concern. There are seven criteria that shall be concidered. These emanate from the Spijkers case. In addition two complementary concepts of importance are '' the identity of the activity'' and ''the identity of the entity''. To decide whether these are fulfilled the total assesment, as just mentioned, shall be done. It can also be mentioned that a transfer in two steps can be done, for instance in contracts of tender. But two steps often indicate that it is not a transfer in the meaning of the directive. Considering transfers within retailing there are just few special cases, therefore deductions must be made from cases in other branches. This is also why I have chosen to create my own retail cases which deal with stores in a shopping mall. It can be said that it is probably important whether the store is one of its kind in a shopping mall or if there are several stores of the same type. Furthermore it also should be important whether a rental agreement is included or not in the transfer and whether goodwill and customers have been transfered, if the transfer will be considered as a transfer in the meaning of the directive. To conclude, it can be said that it is important that every situation has to be evaluated based on its conditions. Something that can be important in one situation does not necessarily have to be so in another situation. Therefor it is hard to give a clear answer considering when a transfer, within retailing and as well as other branches, is a transfer in the meaning of the directive. (Less)
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author
Mellberg, Elisabet
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Arbetsrätt
language
Swedish
id
1560171
date added to LUP
2010-03-08 15:55:26
date last changed
2010-03-08 15:55:26
@misc{1560171,
  abstract     = {The aim of this study is to investigate the concept of transfer of an undertaking and apply the result to in the retailing branch. The questions to be answered are: What is included in the concept of transfer of an undertaking? When is a transfer within retailing to be concidered as a transfer according to article 1.1 in the directive 2001/23/EG and in 6 b § LAS? In 1977 the directive 77/187/EG was adopted. Since some parts of the directive needed clarification so the directive was changed and from 2001 the applicable directive is 2001/23/EG. The purpose of the directive is to protect employees' rights in the event of a transfer of an undertaking, business or parts of an undertaking or business. In Sweden the directive was implemented in LAS, the employment protection act, and MBL, the co-determination act. The European Court of Justice has constantly changed and modified its position on when a transfer is to be considered as a transfer within the meaning of the directive. However, some prominent elements have been more significant in practice then others. It has been stated that a total assesment shall be made to decide whether the identity of the activity is maintained as a ''going concern. There are seven criteria that shall be concidered. These emanate from the Spijkers case. In addition two complementary concepts of importance are '' the identity of the activity'' and ''the identity of the entity''. To decide whether these are fulfilled the total assesment, as just mentioned, shall be done. It can also be mentioned that a transfer in two steps can be done, for instance in contracts of tender. But two steps often indicate that it is not a transfer in the meaning of the directive. Considering transfers within retailing there are just few special cases, therefore deductions must be made from cases in other branches. This is also why I have chosen to create my own retail cases which deal with stores in a shopping mall. It can be said that it is probably important whether the store is one of its kind in a shopping mall or if there are several stores of the same type. Furthermore it also should be important whether a rental agreement is included or not in the transfer and whether goodwill and customers have been transfered, if the transfer will be considered as a transfer in the meaning of the directive. To conclude, it can be said that it is important that every situation has to be evaluated based on its conditions. Something that can be important in one situation does not necessarily have to be so in another situation. Therefor it is hard to give a clear answer considering when a transfer, within retailing and as well as other branches, is a transfer in the meaning of the directive.},
  author       = {Mellberg, Elisabet},
  keyword      = {Arbetsrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Begreppet verksamhetsöverlåtelse och dess tillämpning på detaljhandeln},
  year         = {2008},
}