Planning a merger, acquisition or division of (part of) a business in the Netherlands or any other EU country? Be aware of the EU law which sets out the strong position of employees in case of a transfer of undertaking (Directive 2001/23/EC). Russell Advocaten will inform you on this legislation and the consequences thereof by a series of newsletters. This time: Criteria for a transfer of undertaking.
In case of a transfer of undertaking all rights and duties arising from the employment contract(s) with the transferor existing at the time of the transfer will be transferred to the transferee by law (thus, without any further proceedings). Therefore, it is important to be aware of the criteria for a transfer of undertaking. A transfer of undertaking exists when an undertaking retains its identity by a transfer arising from a contract, merger or division. There is a significant amount of (European) case law on when a transfer should be considered a transfer of undertaking. This case law shows that it is not necessary for the transferor (the party that ceases to be the employer) and the transferee (the party that becomes the new employer) to have aimed at a transfer. Even a direct contractual relation between the transferor and the transferee is not required for the existence of a transfer of undertaking. The transfer of a single activity may also qualify as a transfer of undertaking (for instance, only a cleaning division of a company is being transferred).
To determine whether the undertaking has retained its identity several matters must be taken into account, including:
Would you like to receive more information about the EU law on transfer of undertaking and the consequences thereof? Or do you have any other questions on employment law? Please contact:
Jan Dop, LL.M. (jan.dop@russell.nl).
The franchise agreement and the distribution agreement are very similar, but there are also important differences. What are the consequences if you conclude a franchise agreement when it is actually a distribution agreement or vice versa? How can you avoid this misunderstanding?
On 1 July 2026, part of the transitional law of the Management and Supervision of Legal Entities Act (MSLEA) will expire. This mainly affects the voting rights of directors or supervisory directors of associations and foundations. When do you need to amend your articles of association?
With the Dutch Tax and Customs Administration again enforcing the Deregulation of Assessment of Employment Relationships Act (DBA Act), these questions have become even more important. In a recent ruling on Uber drivers, the Supreme Court provided additional guidance on how to determine whether someone is a self-employed person.
An important part of corporate governance is compliance with the various rules governing the company. How do you ensure that your company becomes and stays compliant?
If employers want to terminate the employment of an employee for poor performance, they need to take a number of steps before they are allowed to do this. Which actions do they have to take? What issues should expats take into account?
The works council has an important task when it comes to working conditions in the company, including social safety. What tools can the works council use to ensure a safe corporate culture?
