ABSTRACT
The Acquired Rights Directive continues to be a source of controversy and difficulty, because it embodies the implicit conflict between the economic and social dimensions of the European Union. The Directive applies to the transfer of an undertaking, business or part of a business to another as a result of a legal transfer or merger, although not to a change in the control of a company by acquisition of the share capital, where the legal identity of the employer does not change. In analysing the issues Advocate General Van Gerven in Dr Sophie Redmond Stickling v Bartol and Advocate General Lenz in Henke v Gemeinde Schierke and Verwaltungsgemeinschaft 'Bracken' fruitfully distinguish between the concept of an undertaking, the transfer of an undertaking and the concept of a legal transfer. Thus the Court adopts a highly purposive interpretation of the requirement that there be a legal transfer before the Directive is operative.
