A critical evaluation of the jurisprudence of the Court of Justice of the European Union (“CJEU”) that has interpreted the provisions of the Acquired Rights Directive. Is the case law emerging from the CJEU deficient, and why?

Essay from the year 2018 in the subject Law - European and International Law, Intellectual Properties, grade: A, University of Edinburgh (Edinburgh Law School), course: European Labour Law, language: English, abstract: In this essay I will argue that the jurisprudence emerging from the CJEU in relation to key concepts of the Directive has largely been deficient. Deficient in the sense that the CJEU has not been consistent in its decisions in course of time, shifting its thinking, providing a lack of clarity and therefore leaving national courts with suboptimal legal certainty in the interpretation of the law.Since its adoption in 1977 the Acquired Rights Directive (hereinafter the “Directive”) has generated a generous amount of case law, both in the national courts of the Member States of the European Union as well as at European level before the CJEU. This was owed to the vague drafting of its original provisions and the lack of clarity or definition even of key concepts such as the “transfer of undertakings”. Furthermore, the way of doing business in a globalised economy has changed over the years leading to corporate restructuring and the creation of atypical contracts (e.g. leasing, contracting-out, franchising) which the European legislator may not have thought of at that time. Consequently, national courts involved in transfer of undertakings litigations have been forced to request the CJEU for preliminary rulings and interpretation in rather fact-specific matters since a settlement based solely on the law text of the Directive or the corresponding national implementation was not possible. At the end, some of the Court’s case law itself has generated new uncertainty among the interpretation of the provisions of the Directive which has resulted in more case law. This prompted the European Council to amend the Directive in 1998 in order to reflect inter alia the case law of the CJEU and ultimately to repeal it in 2001 ‘in the interests of clarity and rationality’. The corresponding law and the evolvement of the jurisprudence of the CJEU will be analysed in more detail below.