João Filipe Ferreira da Silva e Brito and Others v Estado português (C-293/24)

Contents

Judgment of the Court (Grand Chamber)8 September 2026^note(Reference for a preliminary ruling — Directives 77/187/EEC and 2001/23/EC — Transfers of undertakings — Safeguarding of employees’ rights — Article 1(1) and Article 3(1) — Obligation to make a request for a preliminary ruling under the third paragraph of Article 267 TFEU — Member State liability for harm caused to individuals by breaches of EU law attributable to that Member State — Breaches attributable to a national court or tribunal against whose decisions there is no judicial remedy under national law — Taking into consideration the case-law of the Court extant at the time of delivery of the decision of that national court or tribunal which allegedly caused that harm)In Case C‑293/24,REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal de Justiça (Supreme Court, Portugal), made by decision of 13 March 2024, received at the Court on 23 April 2024, in the proceedingsJoão Filipe Ferreira da Silva e Brito and OthersvEstado PortuguêsTHE COURT (Grand Chamber),composed of K. Lenaerts, President, T. von Danwitz, Vice-President, F. Biltgen, K. Jürimäe, L. Arastey Sahún, J. Passer and F. Schalin, Presidents of Chambers, S. Rodin, E. Regan, D. Gratsias, M. Gavalec (Rapporteur), Z. Csehi, S. Gervasoni, N. Fenger and R. Frendo, Judges,Advocate General: T. Ćapeta,Registrar: L. Carrasco Marco, Administrator,having regard to the written procedure and further to the hearing on 16 June 2025,after considering the observations submitted on behalf of:– Mr Ferreira da Silva e Brito and others, by J.L. da Cruz Vilaça, I. Domingues Alves, M. Martins Pereira and T. Santos Silva, advogados,– the Portuguese Government, by P. Barros da Costa, J. Castello-Branco, C. Freire, S. Leite and A. Pimenta, acting as Agents,– the German Government, by J. Möller and R. Kanitz, acting as Agents,– the Spanish Government, by A. Gavela Llopis, acting as Agent,– the European Commission, by M. Afonso, S. Delaude and P. Van Nuffel, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 30 October 2025,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 3(1) of Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, p. 26), Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16), and the third paragraph of Article 267 TFEU.

2The request has been made in proceedings between, on the one hand, Mr João Filipe Ferreira da Silva e Brito and other former employees of the airline Air Atlantis S. A. (‘AIA’) and, on the other hand, the Estado Português (Portuguese State), brought with a view to obtaining compensation in respect of the harm which the appellants claim to have suffered as a result of the breach of EU law on the part of the Supremo Tribunal de Justiça (Supreme Court, Portugal) in its judgment of 25 February 2009 (‘the judgment of 25 February 2009’).

Legal context

European Union law

The FEU Treaty

3Article 267 TFEU provides:‘The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:(a) the interpretation of the Treaties;(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.…’

Directive 77/187

4The second recital of Directive 77/187 stated that ‘it is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded’.

5Article 1(1) of that directive provided:‘This Directive shall apply to the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger.’

6The first subparagraph of Article 3(1) of that directive provided:‘The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer within the meaning of Article 1(1) shall, by reason of such transfer, be transferred to the transferee.’

7Under the first paragraph of Article 4(1) of that directive:‘The transfer of an undertaking, business or part of a business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.’

Directive 2001/23

8Directive 2001/23 codified Directive 77/187, as amended by Directive 98/50/EC of 29 June 1998 (OJ 1998 L 201, p. 88), with effect from 11 April 2001.

9Recitals 3 and 8 of Directive 2001/23 state:(3) It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded.…(8) Considerations of legal security and transparency required that the legal concept of transfer be clarified in the light of the case-law of the Court of Justice. Such clarification has not altered the scope of [Directive 77/187] as interpreted by the Court of Justice.’

10Article 1(1)(a) and (b) of that directive provides:(a) This Directive shall apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger.(b) Subject to subparagraph (a) and the following provisions of this Article, there is a transfer within the meaning of this Directive where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.’

11The first subparagraph of Article 3(1) of that directive is worded as follows:‘The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.’

12The first subparagraph of Article 4(1) of Directive 2001/23 provides:‘The transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.’

Portuguese law

13Article 23(3) of the Regime Jurídico do Contrato Individual de Trabalho (Legal rules on individual contracts of employment), approved by Decreto-Lei n. 64-A/89 (Decree-Law No 64-A/89) of 27 February 1989 (Diário da República, Série I, n^o 48, 2^o Suplemento, of 27 February 1989; ‘the LCCT’), provided:‘Where the employee receives the compensation referred to in this article, it equates to acceptance of the dismissal.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

14The appellants in the main proceedings are former employees of the airline AIA. They were the subject of a collective redundancy, with effect from 30 April 1993, on account of the winding up of that company.

15As from 1 May 1993, Transportes Aéreos Portugueses S. A. (‘TAP’) operated some of the charter flights that AIA – in which TAP was the main shareholder – had contracted to provide for the International Air Transport Association (IATA) summer season 1993, namely for the period from 1 May to 31 October 1993. In order to provide those flights, TAP – which, until that time, had not been active on the charter flights market – essentially used four of the eight aircraft that AIA had operated, together with the latter undertaking’s office equipment and some of the crockery used on board the aircraft. TAP also used its own aircraft, on occasion, and its own flight crew.

16According to the order for reference, TAP’s decision to operate those flights was intended, at least in part, to avoid paying the high levels of compensation provided for in the event of non-performance of the contracts between AIA and the tour operators. Similarly, in so far as it had to pay rent in respect of the four aircraft leased by AIA, TAP entered into an agreement with the lessors concerned in order to use those aircraft.

17The appellants in the main proceedings claim to have accepted the redundancy payment on account of the inevitability, in their eyes, of the winding up of AIA, in the light of the liberalisation of international air traffic and the general crisis brought about by the first Gulf War. At the time of their redundancy, they were unaware, however, that further to the termination of their contracts of employment, TAP would receive some of the equipment belonging to AIA and would pursue the latter’s charter flight activity.

18From that point of view, following the winding up of AIA, TAP brought back to its own commercial department two employees who had, until then, been seconded by TAP to the commercial department at AIA, and entrusted them with functions in the area of charter flights for the IATA summer season 1993.

19It is argued, furthermore, that during the IATA summer season 1994, TAP operated charter flights that it had never operated before, and which corresponded to the routes usually operated by AIA.

20In 1993 and 1994, the appellants in the main proceedings brought actions before the Tribunal do Trabalho de Lisboa (Labour Court, Lisbon, Portugal) whereby they sought, in particular, to challenge their collective redundancy and to obtain their reinstatement within TAP. They claimed that the real intention of the latter was to take over, at a lesser cost, the activities of AIA on the charter flights market, which was characteristic of a transfer of a business.

21By decision of 6 February 2007, that court ordered TAP to reinstate the appellants in the main proceedings and to pay them damages.

22By judgment of 16 January 2008, the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon, Portugal) varied that decision, finding that the winding up of AIA stemmed, inter alia, from its poor financial results and that the winding-up procedure had resulted in the dispersal of that undertaking’s assets, so that there was no longer any business to be transferred.

23That court also considered that the transfer of certain AIA assets to TAP could not be classified as a transfer of part of an undertaking. According to that court, TAP acquired only isolated elements following the dismantling of AIA, which elements lacked the specific organisation characteristic of an economic unit capable of operating alone on the market. In addition, none of those elements was decisive in or essential to supporting the charter flight activity in which TAP was engaged. Furthermore, during the IATA summer season 1993, TAP had used its own aircraft in order to operate certain flights which AIA had undertaken to operate. Former AIA aircraft had also been used in order to operate scheduled TAP flights until the aircraft were returned to the lessors.

24Moreover, although, at first sight, TAP might appear to be pursuing the activity in which AIA had been engaged, the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon) rejected that interpretation. First, the non-performance of the contracts into which AIA had entered would have exposed TAP to the payment of high levels of compensation. Second, TAP was itself able to ensure that the contracts into which AIA had entered were honoured. Third, since TAP had used its own undertaking in order to act on the charter flights market, a transfer of business could not be made out. Fourth, by operating charter flights in 1994, TAP had sought to conquer a market share which had been freed by the winding up of AIA, which could not characterise a transfer of customers from AIA to TAP, particularly since such a customer base is highly volatile on the charter flights market. Fifth, the business which AIA had owned was linked to a non-transferable licence for the operation of flights, which rendered the transfer of the business impossible.

25By the judgment of 25 February 2009, the Supremo Tribunal de Justiça (Supreme Court) dismissed the appeal on a point of law brought by the appellants in the main proceedings against the judgment of the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon) of 16 January 2008, finding that (i) no transfer of a business, within the meaning of Directive 77/187, had taken place, and (ii) it was not necessary to make a preliminary reference to the Court of Justice.

26In the first place, that national court endorsed the reasoning of the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon), except in so far as concerns the importance attributed to the fact that AIA owned a business linked to a non-transferable licence. In so far as TAP was itself the holder of a licence authorising it to operate scheduled and non-scheduled flights, the fact that the licence that AIA held to operate charter flights was not transferable did not prevent TAP from engaging in that activity.

27However, according to the referring court, following the liquidation of AIA assets, there remained, within TAP, ‘no economic entity with the direct and independent intention of carrying on the charter flight activity which had previously been pursued by AIA’.

28Furthermore, as AIA’s primary creditor, it was in TAP’s interest to perform the contracts into which AIA had entered, so as not to have to pay the high levels of compensation for which those contracts provided in the event of flight cancellation. Similarly, the agreement concluded with AIA’s liquidation committee and the lessors with a view to transferring four aircraft leased by AIA aimed to reduce the losses generated by the winding-up of the latter company, since TAP was the sub-lessee of one of those aircraft and the guarantor for the leasing agreement in respect of the remaining three. Furthermore, those aircraft were used without distinction for scheduled and non-scheduled flights, before they were returned to the lessors on expiry of the contracts, between 1998 and 2000. Those circumstances therefore show no intention to take over AIA’s ‘charter’ activity and are not sufficient for it to be claimed that that activity was developed independently within TAP.

29The referring court confirmed, in its judgment of 25 February 2009, that, in so far as concerns the flights operated in 1994, TAP had simply sought to conquer a market share which had been freed by the winding-up of AIA, which, according to the case-law of the Court of Justice, did not support the conclusion that an economic entity had been transferred between those two companies.

30Moreover, according to the referring court, the taking over, by TAP, of the crockery used on board the aircraft and office equipment belonging to AIA is irrelevant, not only because that taking over was taken into account as part of the winding-up, but also because it has not been demonstrated that that crockery and that equipment were dedicated to AIA’s ‘charter’ activity. It is therefore not possible to claim that these are part of an organised whole of assets and persons specifically devoted to the non-scheduled flight business.

31Finally, after the winding-up of AIA, TAP reinstated only two employees whom it had, until that time, seconded to AIA’s commercial department, and to whom it assigned equivalent duties at TAP.

32In the second place, in its judgment of 25 February 2009, the Supremo Tribunal de Justiça (Supreme Court) held that, having regard to the content of Directives 77/187 and 2001/23, the interpretation thereof by the Court of Justice, and the characteristics of the dispute in the main proceedings, a reference to the latter for a preliminary ruling was not necessary. According to that national court, the obligation to make a reference for a preliminary ruling, laid down in the third paragraph of Article 267 TFEU, is ‘not absolute’ and cannot be imposed solely on the grounds that the parties to the main proceedings seek such a reference to the Court of Justice, otherwise the preliminary ruling procedure ‘would become a remedy placed at the disposal of the parties to the proceedings’. Moreover, the Court of Justice ‘itself has expressly acknowledged that “the correct application of EU law may be so evident that there is no room for any reasonable doubt regarding the solution to be given to the question raised”’.

33The referring court added that, in the present case, ‘in view of the content of [Directives 77/187 and 2001/23], the interpretation of the rules of EU law by the Court of Justice and the features of the case under consideration in the present judgment, there is no relevant doubt that makes it necessary to request a preliminary ruling, since the fact that the questions raised in this case and the situations referred to the Court of Justice are not strictly identical is unimportant’. It stated, in that connection, that ‘the Court has established a considerable body of settled case-law on the issue of interpreting EU rules on the “transfer of businesses”’ and that ‘[Directive 2001/23] already reflects the consolidation, pursuant to that case-law, of concepts set out therein and which have already acquired such clarity, as regards their interpretation in EU and national case-law, that, in the case before that national court, it is not necessary to consult the Court of Justice first’.

34Taking the view, in essence, that the judgment of 25 February 2009 was based on a manifestly incorrect interpretation of the concept of ‘transfer of a business’ within the meaning of Directive 2001/23, and the referring court had, in that judgment, failed to comply with the obligation to make a reference for a preliminary ruling laid down in the third paragraph of Article 267 TFEU, the appellants in the main proceedings brought an action before the Varas Cíveis de Lisboa (Court of First Instance, Lisbon, Portugal) seeking to establish the liability of the Portuguese State in order to obtain compensation in respect of the harm they claimed to have suffered as a result of that judgment.

35That court decided to stay proceedings and to request a preliminary ruling from the Court of Justice.

36In its judgment of 9 September 2015, Ferreira da Silva e Brito and Others (C‑160/14, ‘the judgment in Ferreira da Silva e Brito I’, EU:C:2015:565), the Court of Justice, in reply to that reference for a preliminary ruling, ruled, first, that the facts of the dispute in the main proceedings made it possible to establish a ‘transfer of a business’ within the meaning of Article 1(1) of Directive 2001/23. Second, it held that the Supremo Tribunal de Justiça (Supreme Court) was required, in accordance with the third paragraph of Article 267 TFEU, to make a reference to the Court of Justice for a preliminary ruling, in respect of the interpretation of that concept of ‘transfer of a business’, in circumstances characterised both by the fact that there are conflicting decisions of lower courts as to the interpretation of that concept and by recurrent difficulties in interpreting that concept in the various Member States, with the result that many national courts had to make references to the Court of Justice.

37In its judgment handed down following the delivery of the judgment in Ferreira da Silva e Brito I, the Varas Cíveis de Lisboa (Court of First Instance, Lisbon) dismissed the action brought by the appellants in the main proceedings on the ground that they had failed to establish a manifest breach of EU law on the part of the Supremo Tribunal de Justiça (Supreme Court). Having also had their appeal dismissed by the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon) by way of a judgment of 16 March 2023, those appellants brought an extraordinary appeal on a point of law before the Supremo Tribunal de Justiça (Supreme Court), which is the referring court.

38Since, in its judgment of 16 March 2023, the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon) criticised the judgment in Ferreira da Silva e Brito I on the ground, in particular, that the Court of Justice had assessed the concept of ‘transfer of a business’ in the light of decisions subsequent to 25 February 2009, the referring court asks that the Court of Justice clarify whether that assessment could be based solely on the case-law predating 25 February 2009. The referring court also asks that the Court of Justice assess specifically whether, in the present case, the delivery of the judgment of 25 February 2009 can be classified as a sufficiently serious breach of EU law. Lastly, in the event that the Court should find that the facts at issue in the main proceedings do constitute a ‘transfer of a business’ within the meaning of Directives 77/187 and 2001/23, the question would arise as to whether Article 23(3) of the LCCT – which provided that where the employee accepts the compensation referred to in that article, equates to acceptance of the dismissal – was compatible with EU law in force at the time and, in particular, Article 3(1) and Article 4(1) of Directive 77/187.

39Under those circumstances, the Supremo Tribunal de Justiça (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) In view of the proven facts set out above and the case-law of the Court of Justice as it stood at 25 February 2009, should [Directive 77/187] and [Directive 2001/23], in particular Article 1(1) of [Directive 2001/23], which clarified the concept of “transfer”, have been interpreted on that date as meaning that the concept of [a] “transfer of a business” encompassed a situation in which an undertaking active in the charter flights market was wound up by a decision of its majority shareholder, which was itself an undertaking active in the aviation sector and which, in the context of the winding-up, carried out the acts which are described in greater detail in the proven facts set out above?(2) If the answer is in the affirmative and likewise in view of the proven facts set out above and the case-law of the Court of Justice as it stood at 25 February 2009, does the decision contained in the judgment given on that same date by the Supremo Tribunal de Justiça [(Supreme Court)], which, deciding at last instance and in the light of the facts of which it was aware, held that the abovementioned directives, in particular Article 1(1) of [Directive 2001/23], should be interpreted as meaning that the concept of [a] “transfer of a business” did not encompass the situation described in the previous question, constitute a sufficiently serious breach of EU law?(3) In view of the proven facts set out above and the case-law of the Court of Justice as it stood at 25 February 2009, does the decision contained in the judgment given on that same date by the Supremo Tribunal de Justiça (Supreme Court), which, deciding at last instance and in the light of the facts of which it was aware, held that Article 234 TEC (now Article 267 TFEU) should be interpreted as meaning that, in view of the facts described in the first question referred and the fact that the lower national courts that had heard the case had given conflicting decisions, the Supremo Tribunal de Justiça (Supreme Court) was not obliged to request a preliminary ruling from the Court of Justice regarding the correct interpretation of the concept of [a] “transfer of a business” for the purposes of Article 1(1) of [Directive 2001/23], constitute a sufficiently serious breach of EU law?(4) If the answer to the first question is in the affirmative and if the answer to either or both of the previous two questions is in the affirmative, the conclusion having been reached that there is a sufficiently serious breach of EU law – in a case such as the present one, in which it has been proved that the employees agreed to receive compensation for the collective redundancy, as they were convinced that the dissolution of [AIA], their employer, was inevitable and were unaware that, after the termination of their contracts of employment, TAP would carry on at least part of the charter flight activity which, until then, had been carried on by [AIA] and that some equipment [belonging to AIA], including the aircraft, would be transferred to TAP – must Article 3(1) of [Directive 77/187] be interpreted as meaning that it precludes a national provision, such as Article 23(3) of the [LCCT], which has since been repealed but was applicable at the time of the facts in the main proceedings, in accordance with which “where the employee takes the compensation referred to in this article, it equates to acceptance of the dismissal”?’

Consideration of the questions referred

Preliminary remarks

40In its questions, the referring court alternately mentions Directive 77/187 and Directive 2001/23, which codified Directive 77/187, as amended by Directive 98/50. In so far as the collective redundancy to which the appellants in the main proceedings were subject took effect on 30 April 1993, it is the former of those two directives which is to be applied. Nevertheless, the wording of the relevant provisions of those directives is broadly similar, with the result that the answers to those questions will not vary according to whether they concern one or other of those directives.

The first, second and third questions

41By its first, second and third questions, which it is appropriate to examine together, the referring court is asking, in essence, whether a Member State can be held liable for a sufficiently serious breach of Article 1(1) of Directive 77/187 or Article 1(1) of Directive 2001/23 by one of its national courts against whose decisions there is no judicial remedy, such as the interpretation adopted by the Supremo Tribunal de Justiça (Supreme Court) in its judgment of 25 February 2009, on account of the combination of errors of interpretation of the relevant provision and the failure, by that national court, to comply with its obligation to make a reference for a preliminary ruling pursuant to the third paragraph of Article 267 TFEU.

42As a preliminary point, it should be recalled that the principle of State liability for loss and damage caused to individuals as a result of breaches of EU law for which the State can be held responsible is inherent in the system of the Treaties on which the European Union is based (judgment of 19 November 1991, Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 35). That principle applies to any case in which a Member State infringes EU law, whichever public authority is responsible for the breach (see, to that effect, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraphs 31 and 32, and of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution), C‑61/21, EU:C:2022:1015, paragraph 43).

43Consequently, that principle is also applicable where the breach at issue stems from a decision of a court adjudicating at last instance. The Court has, in fact, already held that the judiciary plays an essential role in the protection of the rights derived by individuals from rules of EU law and that a court ruling at last instance constitutes, by definition, the last instance before which those individuals can enforce the rights conferred on them by those rules. The Court inferred from this that the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation in respect the harm caused to them by a breach of EU law attributable to a decision of a national court adjudicating at last instance (see, to that effect, judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraphs 32 to 36 and 59; of 13 June 2006, Traghetti del Mediterraneo, C‑173/03, EU:C:2006:391, paragraph 31; and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 20).

44As regards the conditions for that liability to be incurred, the Court has repeatedly held that recognition of the right of individuals harmed to compensation for damage is subject to three conditions: the rule of EU law infringed must be intended to confer rights on those individuals; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by those individuals (see, to that effect, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51; of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution), C‑61/21, EU:C:2022:1015, paragraph 44; and of 18 December 2025, Hamoudi v Frontex, C‑136/24 P, EU:C:2025:977, paragraph 68).

45Those three conditions are necessary and sufficient for the liability of a Member State for a breach of EU law to be incurred (see, to that effect, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 66, and of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 57).

46EU law therefore precludes national law imposing conditions that are supplementary to or stricter than those referred to in paragraph 44 of the present judgment. It does not, however, in any way prevent the State incurring liability for breach of that law under less strict conditions on the basis of national law (see, to that effect, judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 66; of 13 March 2007, Test Claimants in the Thin Cap Group Litigation, C‑524/04, EU:C:2007:161, paragraph 115; and of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraphs 65 and 66).

47As regards, more specifically, the liability of a Member State for damage caused by the decision of a national court, against whose decisions there is no judicial remedy, which breaches a rule of EU law, it follows from the case-law of the Court of Justice that that liability is governed by the three conditions referred to in paragraph 44 of the present judgment (see, to that effect, judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 52, and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 23).

48In the present case, the first condition for the liability of a Member State to be incurred in respect of a breach of EU law is met, since it is clear that the purpose of Article 1(1) of Directive 77/187 and Article 1(1) of Directive 2001/23 is to confer rights on employees.

49Those directives in fact pursue an objective of protecting employees. In accordance with the second recital of Directive 77/187 and recital 3 of Directive 2001/23, and according to the very title of those directives, the purpose thereof is to protect employees in the event of a change of employer, in particular to ensure that their rights are safeguarded, which the Court has repeatedly pointed out (see, to that effect, judgments of 19 May 1992, Redmond Stichting, C‑29/91, EU:C:1992:220, paragraph 11; of 12 November 1992, Watson Rask and Christensen, C‑209/91, EU:C:1992:436, paragraph 26; of 14 April 1994, Schmidt, C‑392/92, EU:C:1994:134, paragraph 15; and of 15 December 2005, Güney‑Görres and Demir, C‑232/04 and C‑233/04, EU:C:2005:778, paragraph 40).

50The purpose of the first subparagraph of Article 3(1) and the first subparagraph of Article 4(1) of those directives is that, in the interest of employees, to safeguard the rights of the latter in the event of a change of employer by allowing them to continue to work for the transferee employer on the same conditions as those agreed with the transferor. Those provisions are intended to safeguard, as far as possible, the continuation of the work relationship with the transferee employer, without change, inter alia by requiring the latter to maintain the working conditions agreed by way of a collective agreement and by protecting employees against redundancies made solely on the basis of the transfer (see, to that effect, judgments of 7 February 1985, Wendelboe and Others, 19/83, EU:C:1985:54, paragraph 15; of 11 July 1985, Foreningen af Arbejdsledere i Danmark, 105/84, EU:C:1985:331, paragraph 15; of 25 July 1991, d’Urso and Others, C‑362/89, EU:C:1991:326, paragraph 9; and of 27 November 2008, Juuri, C‑396/07, EU:C:2008:656, paragraph 28).

51In so far as concerns the second condition for the liability of a Member State to be incurred for a breach of EU law, namely the requirement of a sufficiently serious breach of EU law, the specific nature of the judicial function and the legitimate requirements of legal certainty must be taken into consideration. Thus, State liability for a breach of EU law by a decision of a national court against whose decisions there is no judicial remedy can be incurred only in the exceptional case where the court has manifestly infringed the applicable law (judgment of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 53).

52In order to determine whether that condition has been met, the national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it, in particular, the degree of clarity and precision of the rule infringed, the scope of the room for assessment that the rule infringed allows for national or EU authorities, whether the infringement committed or the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by an EU institution may have contributed to the adoption or maintenance of national measures or practices contrary to EU law, and the non-compliance by the court in question with its obligation to make a request for a preliminary ruling pursuant to the third paragraph of Article 267 TFEU (see, to that effect, judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraphs 54 and 55, and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraphs 25 and 26).

53It should, however, be stated that all the criteria referred to in the preceding paragraph do not necessarily have to be satisfied in order for a Member State to incur liability.

54Moreover, given that, in the context of cases relating to the liability of the Member States for a breach of EU law, the ‘sufficiently serious breach’ of that law must be assessed when the unlawful decision concerned is adopted (see, by analogy, judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraphs 39 and 55), the case-law relevant to that end is that which exists when the national court, against whose decisions there is no judicial remedy, adopted the decision at issue.

55In so far as concerns the non-compliance, by a national court against whose decisions there is no judicial remedy, with its obligation to make a request for a preliminary ruling, this is a factor the importance of which varies according to the specific circumstances of the case at hand.

56Indeed, although the infringement of that obligation may be such as to contribute to the finding that a breach of EU law on the part of that national court is manifest, it cannot, alone, suffice to support a finding of a sufficiently serious breach of a rule of EU law the purpose of which is to confer rights on individuals or, therefore, for a Member State to incur liability.

57That obligation is based on the judicial cooperation established between the Court of Justice and the courts and tribunals of the Member States, by means of dialogue between one court and another, with a view to ensuring, on the one hand, the consistency of EU law and its full effect and particular nature as well as the autonomy of the EU legal system, observance of which is ensured by the Court and, on the other hand, the proper application and uniform interpretation of EU law. That cooperation serves, in particular, to prevent a body of national case-law that is not in accordance with the rules of EU law from being established in a Member State (see, to that effect, judgments of 1 December 1965, Schwarze, 16/65, EU:C:1965:117, p. 886; of 24 May 1977, Hoffmann-La Roche, 107/76, EU:C:1977:89, paragraph 5; of 15 October 2024, KUBERA, C‑144/23, EU:C:2024:881, paragraphs 33 and 35; and of 24 March 2026, Remling, C‑767/23, EU:C:2026:243, paragraphs 19 and 21 and the case-law cited). It also involves responsibility shared between, on the one hand, the national courts and tribunals, in particular those against whose decisions there is no judicial remedy and, on the other hand, the Court of Justice to ensure the uniform and consistent interpretation of EU law.

58It should also be recalled that the system of direct cooperation between the Court of Justice and national courts and tribunals, established by Article 267 TFEU, does not constitute a means of redress available to the parties to a case pending before a national court. Thus the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of EU law does not mean that the court or tribunal concerned is compelled to consider that such a question has been raised within the meaning of Article 267 TFEU (see, to that effect, judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi, C‑561/19, EU:C:2021:799, paragraphs 53 and 54 and the case-law cited).

59It follows that, in order for there to be a finding of a sufficiently serious breach of EU law in respect of which a Member State incurs liability, the infringement of the obligation to make a reference for a preliminary ruling, set out in the third paragraph of Article 267 TFEU, must be accompanied by a breach of another rule of EU law which confers rights on individuals.

60In the present case, as is clear from points 1 and 2 of the operative part of the judgment in Ferreira da Silva e Brito I, the judgment of 25 February 2009 infringed both Article 1(1) of Directive 2001/23 and the obligation to make a reference for a preliminary ruling laid down in the third paragraph of Article 267 TFEU. In those circumstances, it is necessary to examine whether the interpretation of EU law which the referring court adopted in the latter judgment can be classified as a sufficiently serious breach of EU law.

61In that connection, it should be recalled that, in any event, a breach of EU law is sufficiently serious where the decision concerned was made in manifest breach of the relevant case-law of the Court (judgments of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 56, and of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 26).

62However, it is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of EU law, in accordance with the guidelines laid down by the Court for the application of those criteria (judgments of 1 June 1999, Konle, C‑302/97, EU:C:1999:271, paragraph 59; and of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 100; see also, to that effect, judgments of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 21, and of 10 December 2020, Euromin Holdings (Cyprus), C‑735/19, EU:C:2020:1014, paragraph 70).

63In order to give the referring court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (see judgments of 21 March 1985, Celestri & C., 172/84, EU:C:1985:137, paragraph 12; of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 30; and of 19 March 2026, Oblastní nemocnice Kolín, C‑513/24, EU:C:2026:214, paragraph 26).

64In that connection, three factors characterising the adoption by the Supremo Tribunal de Justiça (Supreme Court) of the judgment of 25 February 2009 are decisive in finding whether that judgment constitutes a sufficiently serious breach of EU law.

The errors in the interpretation of EU law, in the light of the case-law of the Court which the Supremo Tribunal de Justiça (Supreme Court) ought to have taken into account when adopting the judgment of 25 February 2009

65In the first place, it should be recalled that, in point 1 of the operative part of the judgment in Ferreira da Silva e Brito I, the Court of Justice ruled that ‘Article 1(1) of [Directive 2001/23] must be interpreted as meaning that the concept of a “transfer of a business” encompasses a situation in which an undertaking active on the charter flights market is wound up by its majority shareholder, which is itself an air transport undertaking, and the latter undertaking then takes the place of the undertaking that has been wound up by taking over aircraft leasing contracts and ongoing charter flight contracts, carries on activities previously carried on by the undertaking that has been wound up, reinstates some employees that have hitherto been seconded to that undertaking, assigning them tasks identical to those previously performed, and takes over small items of equipment from the undertaking that has been wound up’.

66Admittedly, in order to arrive at that interpretation, the Court referred, in paragraphs 24, 25 and 27 of the judgment in Ferreira da Silva e Brito I, to two judgments which had come after the judgment of 25 February 2009, namely the judgments of 29 July 2010, UGT-FSP (C‑151/09, EU:C:2010:452), and of 6 March 2014, Amatori and Others (C‑458/12, EU:C:2014:124). Similarly, in paragraphs 33 and 34 of the judgment in Ferreira da Silva e Brito I, it referred to the judgment of 12 February 2009, Klarenberg (C‑466/07, EU:C:2009:85). In the light of the concomitance of the latter judgment with the judgment of 25 February 2009, it is unclear whether the Supremo Tribunal de Justiça (Supreme Court) was able to familiarise itself therewith before handing down its own judgment.

67It is also appropriate to explain the case-law of the Court of Justice prior to its judgment of 12 February 2009, Klarenberg (C‑466/07, EU:C:2009:85), with a view to determining whether the interpretation of Article 1(1) of Directive 2001/23 adopted in the judgment in Ferreira da Silva e Brito I could already be easily inferred therefrom.

68In that connection, it appears that, when the judgment of 25 February 2009 was handed down, the Court had already developed, in its case-law, an assessment methodology common to the various scenarios of transfers of undertakings or businesses. In fact, since its judgment of 18 March 1986, Spijkers (24/85, EU:C:1986:127), the Court has set out the facts that must characterise the transaction in question so that the classification as ‘transfer of an undertaking or a business’ may be relied upon; those facts have since been further formalised, specifically in the judgments of 19 May 1992, Redmond Stichting (C‑29/91, EU:C:1992:220), and of 11 March 1997, Süzen (C‑13/95, EU:C:1997:141).

69Thus, it was already clear from the case-law that, first, in order for it to be found that the identity of the economic entity concerned has been retained after the change in the person responsible for carrying on the undertaking or business, that entity must be stable and its activity not limited to performing one specific works contract. The term entity thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective (see, to that effect, judgments of 19 September 1995, Rygaard, C‑48/94, EU:C:1995:290, paragraph 20, and of 11 March 1997, Süzen, C‑13/95, EU:C:1997:141, paragraph 13).

70Second, the decisive criterion for establishing the existence of a transfer within the meaning of Directive 77/187 and Directive 2001/23 is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed (judgments of 18 March 1986, Spijkers, 24/85, EU:C:1986:127, paragraph 11; of 19 May 1992, Redmond Stichting, C‑29/91, EU:C:1992:220, paragraph 23; and of 11 March 1997, Süzen, C‑13/95, EU:C:1997:141, paragraph 10).

71By contrast, since it is clear from the very wording of Article 1 of Directive 77/187 and Article 1 of Directive 2001/23 that those directives are applicable whenever, in the context of contractual relations, there is a change in the legal or natural person who is responsible for carrying on the undertaking or business and who by virtue of that fact incurs the obligations of an employer vis-à-vis the employees of the undertaking or business, the question whether or not ownership of the tangible assets is transferred is irrelevant (see, to that effect, judgments of 17 December 1987, Ny Mølle Kro, 287/86, EU:C:1987:573, paragraph 12; of 12 November 1992, Watson Rask and Christensen, C‑209/91, EU:C:1992:436, paragraph 15; of 20 November 2003, Abler and Others, C‑340/01, EU:C:2003:629, paragraph 41; and of 15 December 2005, Güney-Görres and Demir, C‑232/04 and C‑233/04, EU:C:2005:778, paragraph 37).

72In order to determine whether the conditions permitting a finding that the identity of the entity concerned has been retained have been met, it is necessary to consider all the facts characterising the transaction in question, including in particular the type of undertaking or business concerned, whether or not its tangible assets, such as buildings and movable property, are transferred, the value of its intangible assets at the time of the transfer, whether or not the majority of its employees are taken over by the new employer, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended. All those circumstances are, however, merely single factors in the overall assessment which must be made and cannot therefore be considered in isolation (see, to that effect, judgments of 18 March 1986, Spijkers, 24/85, EU:C:1986:127, paragraph 13; of 19 May 1992, Redmond Stichting, C‑29/91, EU:C:1992:220, paragraph 24; and of 11 March 1997, Süzen, C‑13/95, EU:C:1997:141, paragraph 14).

73Furthermore, it was already clear from the case-law – familiarity with which on the part of the Supremo Tribunal de Justiça (Supreme Court) could reasonably be expected when that court handed down the judgment of 25 February 2009 – that that assessment must, inter alia, take account of the type of undertaking or business concerned. The degree of importance to be attached to each criterion for identifying whether or not there has been a ‘transfer of an undertaking or a business’, within the meaning of Directives 77/187 and 2001/23, will necessarily vary according to the activity carried on, or indeed the production or operating methods employed in the relevant undertaking, business or part of a business in question (see, to that effect, judgments of 11 March 1997, Süzen, C‑13/95, EU:C:1997:141, paragraph 18; of 10 December 1998, Hidalgo and Others, C‑173/96 and C‑247/96, EU:C:1998:595, paragraph 31; of 2 December 1999, Allen and Others, C‑234/98, EU:C:1999:594, paragraph 28; and of 15 December 2005, Güney-Görres and Demir, C‑232/04 and C‑233/04, EU:C:2005:778, paragraph 35).

74Thus, in sectors where the activity is essentially based on manpower and where a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, the emphasis must be on the retention of employees. Such an entity is in fact capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of numbers and skills, of the employees specifically assigned by his predecessor to that task. In those circumstances, the new employer takes over a body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis (judgments of 11 March 1997, Süzen, C‑13/95, EU:C:1997:141, paragraph 21; of 10 December 1998, Hidalgo and Others, C‑173/96 and C‑247/96, EU:C:1998:595, paragraph 32; and of 2 December 1999, Allen and Others, C‑234/98, EU:C:1999:594, paragraph 29).

75However, in a sector where the tangible assets contribute significantly to the performance of the activity, such as scheduled public transport by bus, the absence of a transfer to a significant extent from the old to the new contractor of such assets, which are necessary for the proper functioning of the entity, must lead to the conclusion that the entity does not retain its identity (see, to that effect, judgment of 25 January 2001, Liikenne, C‑172/99, EU:C:2001:59, paragraph 42).

76Several years before the judgment of 25 February 2009 was handed down, the Court of Justice had, to that end, clarified that where the activity is not based essentially on manpower in so far as it requires a significant amount of equipment, the taking over of tangible assets essential to carrying out that activity may prove to be decisive in characterising the transfer of an economic entity (see, to that effect, judgment of 20 November 2003, Abler and Others, C‑340/01, EU:C:2003:629, paragraph 36), even where such taking over of tangible assets does not entail the transfer of ownership thereof (see, to that effect, judgment of 2 December 1999, Allen and Others, C‑234/98, EU:C:1999:594, paragraph 30 and the case-law cited).

77Conversely, in such a sector of activity, the failure of the new contractor to take over, in terms of numbers and skills, an essential part of the staff which its predecessor employed to perform the same activity is not sufficient to preclude the existence of a transfer of an entity which retains its identity, within the meaning of Directives 77/187 and 2001/23. Any other conclusion would run counter to the principal objective of those directives, which is to ensure the continuity, even against the wishes of the transferee, of the employment contracts of the employees of the transferor (see, to that effect, judgment of 20 November 2003, Abler and Others, C‑340/01, EU:C:2003:629, paragraph 37).

78It thus follows from paragraphs 68 to 77 of the present judgment that, well before the delivery of the judgment of 25 February 2009, the Court of Justice had identified a methodology for assessing the concept of ‘transfer of an undertaking or a business’ which involved making a distinction depending on whether, in the sector concerned, the activity was based essentially on manpower or, on the contrary, a significant amount of equipment.

79However, that judgment contains no express reference to that methodology or any factors in support of a finding that the Supremo Tribunal de Justiça (Supreme Court) implicitly implemented it in that judgment. Since the civil aviation sector, which is at issue in the dispute in the main proceedings, clearly belongs to those sectors which are not based primarily on manpower inasmuch as they require significant amounts of equipment, that constitutes a disregard for the case-law of the Court of Justice recalled in particular in paragraphs 75 to 77 of the present judgment.

80Furthermore, that methodology was not altered by the judgments of 12 February 2009, Klarenberg (C‑466/07, EU:C:2009:85), of 29 July 2010, UGT-FSP (C‑151/09, EU:C:2010:452), and of 6 March 2014, Amatori and Others (C‑458/12, EU:C:2014:124), to which the Court referred in its judgment in Ferreira da Silva e Brito I.

81First, in paragraph 24 of the judgment in Ferreira da Silva e Brito I, the Court affirmed that it had already ‘held that Directive 77/187, which has been codified by Directive 2001/23, [was] applicable whenever, in the context of contractual relations, there is a change in the natural or legal person responsible for carrying on the business who incurs the obligations of an employer towards employees of the undertaking (see judgments [of 7 March 1996,] Merckx and Neuhuys, C‑171/94 and C‑172/94, EU:C:1996:87, paragraph 28; [of 10 December 1998,] Hernández Vidal and Others, C‑127/96, C‑229/96 and C‑74/97, EU:C:1998:594, paragraph 23; and [of 6 March 2014,] Amatori and Others, C‑458/12, EU:C:2014:124, paragraph 29 and the case-law cited)’. Paragraph 29 of the judgment of 6 March 2014, Amatori and Others (C‑458/12, EU:C:2014:124), reproduces, to the letter, paragraph 28 of the judgment of 7 March 1996, Merckx and Neuhuys (C‑171/94 and C‑172/94, EU:C:1996:87).

82In doing so, the Court confined itself, in paragraph 24 of the judgment in Ferreira da Silva e Brito I, to confirming a well-established wording which has its roots in the judgment of 17 December 1987, Ny Mølle Kro (287/86, EU:C:1987:573, paragraph 12), and which the Court has, on many occasions, reiterated thereafter, in particular in the judgments of 15 June 1988, Bork International and Others (101/87, EU:C:1988:308, paragraph 13), and of 19 May 1992, Redmond Stichting (C‑29/91, EU:C:1992:220, paragraph 11).

83Moreover, paragraph 25 of the judgment in Ferreira da Silva e Brito I refers, in particular, to paragraph 30 of the judgment of 6 March 2014, Amatori and Others (C‑458/12, EU:C:2014:124), with a view to stating that the decisive criterion in determining whether there is a transfer within the meaning of Directive 2001/23, is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed. That paragraph 30 is inspired, to a great extent, by paragraphs 11 and 12 of the judgment of 18 March 1986, Spijkers (24/85, EU:C:1986:127), which are also cited in paragraph 25 of the judgment in Ferreira da Silva e Brito I.

84Lastly, paragraph 28 of the judgment of 29 July 2010, UGT-FSP (C‑151/09, EU:C:2010:452), to which paragraph 27 of the judgment in Ferreira da Silva e Brito I refers, in turn reiterates the settled case-law under which, as has been pointed out in paragraph 73 of the present judgment, the degree of importance to be attached to the various criteria for determining whether or not there has been a transfer within the meaning of Directives 77/187 and 2001/23 will necessarily vary according to the activity carried on.

85Secondly, in paragraphs 33 and 34 of the judgment in Ferreira da Silva e Brito I, the Court admittedly stated that it followed from paragraphs 46 to 48 of the judgment of 12 February 2009, Klarenberg (C‑466/07, EU:C:2009:85), which was handed down only a few days before the judgment of 25 February 2009, that ‘what is relevant for the purpose of finding that the identity of the transferred entity has been preserved is not the retention of the specific organisation imposed by the employer on the various elements of production which are transferred, but rather the retention of the functional link of interdependence and complementarity between those elements’ and that, consequently, ‘the retention of a functional link of that kind between the various elements transferred allows the transferee to use them – even if they are integrated, after the transfer, in a new and different organisational structure – to pursue an identical or analogous economic activity’.

86Nevertheless, in paragraph 44 of the judgment of 12 February 2009, Klarenberg (C‑466/07, EU:C:2009:85), the Court, in referring to earlier judgments, stated that, while it had previously held that that factor contributes to defining the identity of an economic entity, it had also held that an alteration in the organisational structure of the entity transferred is not such as to prevent the application of Directive 2001/23.

87The referring court disregarded the broad interpretation of the concept of ‘transfer of an undertaking or a business’ as it stemmed from the case-law prior to the judgment of 12 February 2009, Klarenberg (C‑466/07, EU:C:2009:85), when that court held, in its judgment of 25 February 2009, that it was necessary to ascertain whether AIA’s charter flights activity had been developed independently within TAP with a view to assessing whether the transfer of the entity transferred to the latter airline was to be examined as being a ‘transfer of an undertaking or a business’ within the meaning of Directive 77/187.

88By making the finding of such a transfer subject to the condition – which the Court of Justice had never adopted in its case-law – that the entity transferred retained its organisational autonomy within the entity acquiring it, the Supremo Tribunal de Justiça (Supreme Court) set down a requirement which has no basis in those directives, and which deviates from the methodology relied upon in the relevant case-law of the Court of Justice which the referring court could reasonably be expected to take into account when it adopted the judgment of 25 February 2009.

89Furthermore, it should be pointed out that the referring court held, in the judgment of 25 February 2009, that ‘the conduct of TAP was economically coherent’ in so far as it consisted in ‘proposing the winding-up of AIA on the ground that the economic operation thereof was not viable and, in the context of that winding-up, [in taking] over flights that AIA had previously undertaken to [operate] in order to avoid high levels of compensation’.

90By proceeding thus in order to justify its interpretation of the concept of ‘transfer of an undertaking or a business’, the referring court took a subjective approach to that transaction by systematically placing it in the context of the winding-up of AIA and TAP’s aim of reducing the losses generated by that winding-up. However, it was clear from the case-law of the Court of Justice, which the Supremo Tribunal de Justiça (Supreme Court) could reasonably be expected to take into account when it handed down the judgment of 25 February 2009, that the concept is based on objective criteria. As has been pointed out in paragraph 69 of the present judgment, the decisive criterion in determining whether there is a transfer of an undertaking, a business or part of a business, within the meaning of Directives 77/187 and 2001/23, is whether the entity in question retains its identity, as indicated inter alia by the fact that its operation is actually continued or resumed.

91It follows that the referring court ought to have disregarded both the context in which AIA was wound up and TAP’s aim of reducing the losses generated by that winding up, and taken into account the numerous objective factors which showed that TAP actually continued the charter flights activity which had, until then, been carried on by AIA. In that connection, the most significant factor is the operation, by TAP, of four of the eight aircraft leased by AIA, for a period of time that was not inconsiderable, since it ran from 1993 until the aircraft were returned to the lessors on expiry of the leasing agreements between 1998 and 2000.

92In the light of the case-law which the Supremo Tribunal de Justiça (Supreme Court) ought to have taken into account, the combination of the errors that it made in its interpretation of EU law in the judgment of 25 February 2009, as identified in paragraphs 79, 87, 88 and 90 of the present judgment, appears to vitiate that judgment with a sufficiently serious breach of EU law.

The failure, on the part of the Supremo Tribunal de Justiça (Supreme Court), to comply with the obligation to make a reference for a preliminary ruling, laid down in the third paragraph of Article 267 TFEU

93In the second place, the failure on the part of the referring court to comply with its obligation to make a reference for a preliminary ruling, in breach of the third paragraph of Article 267 TFEU, also constitutes evidence to that end. As is clear from point 2 of the operative part in the judgment in Ferreira da Silva e Brito I, the Supremo Tribunal de Justiça (Supreme Court) disregarded that obligation in its judgment of 25 February 2009.

94In that judgment, the referring court explained, as has been observed in paragraph 33 of the present judgment, it was unnecessary, in its view, to make a reference for a preliminary ruling. It held, in that connection, that ‘in view of the content of [Directives 77/187 and 2001/23], the interpretation of those directives done by the Court of Justice and the features [of the dispute in the main proceedings] … there is no relevant doubt that makes it necessary to request a preliminary ruling, since the fact that the questions raised in this case and the situations referred to the Court of Justice are not strictly identical is unimportant’. It stated, in that connection, that ‘the Court has established a considerable body of settled case-law on the issue of interpreting EU rules on the “transfer of businesses” [and that, furthermore] [Directive 2001/23] already reflects the consolidation, pursuant to that case-law, of concepts set out therein and which have already acquired such clarity, as regards their interpretation in EU and national case-law, that, in the case before that national court, it is not necessary to consult the Court of Justice first’.

95By referring, first of all, to the interpretation of Directives 77/187 and 2001/23 by the Court of Justice, then to the fact that ‘the questions raised in this case and the situations referred to the Court of Justice are not strictly identical is unimportant’ and, lastly, to the establishment by the Court of Justice of ‘a considerable body of settled case-law on the issue of interpreting EU rules on the “transfer of businesses”’, the referring court clearly considered that it was, in the case at hand, relieved of its obligation to make a reference for a preliminary ruling, laid down in the third paragraph of Article 267 TFEU, on the ground that the answer to the question raised was the result of the settled case-law of the Court of Justice resolving the point of law at issue, even though the questions at issue were not strictly identical.

96However, where there is no judicial remedy under national law against the decisions of a court or tribunal of a Member State, that court or tribunal is in principle obliged to make a reference to the Court of Justice under the third paragraph of Article 267 TFEU where a question concerning the interpretation of EU law or the validity of an act of secondary legislation is raised before it (see, to that effect, judgments of 6 October 1982, Cilfit, 283/81, EU:C:1982:335, paragraph 11; of 4 November 1997, Parfums Christian Dior, C‑337/95, EU:C:1997:517, paragraph 26; of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 25; and of 24 March 2026, Remling, C‑767/23, EU:C:2026:243, paragraph 20).

97A national court or tribunal may, as a consequence, be relieved of that obligation only where it finds itself in one of the three situations envisaged by the Court of Justice in its judgment of 6 October 1982, Cilfit (283/81, EU:C:1982:335, paragraph 21), in other words, where the question of EU law raised before it is irrelevant, where the provision of EU law at issue has already been interpreted by the Court of Justice, or where the correct interpretation of EU law is so obvious as to leave no scope for reasonable doubt.

98As has been recalled in paragraph 57 of the present judgment, national courts, a fortiori those against whose decisions there is no judicial remedy, and the Court of Justice are called upon, in the field of judicial cooperation introduced by Article 267 TFEU, which involves shared responsibility, in line with their respective jurisdictions, to make direct and complementary contributions to the working out of a decision with a view to ensuring that EU law is applied in a unified manner in all Member States.

99However, that responsibility, combined with the obligation of principle, in respect of the courts against whose decisions there is no judicial remedy, to make references to the Court of Justice for a preliminary ruling, means that, where it considers that the answer to the question of EU law raised before it is apparent from the case-law of the Court of Justice, a national court has only limited discretion which is confined to the alternatives of either following the interpretation previously given by the Court or making a reference to the latter for a preliminary ruling, with a view to seeking further clarification or suggesting a departure from the case-law.

100A national court or tribunal cannot, without making a reference to the Court of Justice for a preliminary ruling, depart of its own motion from an interpretation that the Court has previously given of a provision of EU law which applies to the dispute before that national court or tribunal, otherwise it calls into question both the fact that judgments delivered on the basis of references for a preliminary ruling are binding on national courts as regards the interpretation of the provisions of EU law to which those judgments relate (see, to that effect, judgments of 3 February 1977, Benedetti, 52/76, EU:C:1977:16, paragraph 26; of 11 June 1987, X, 14/86, EU:C:1987:275, paragraph 12; and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 74), and the form of judicial cooperation inherent in the preliminary ruling procedure.

101In circumstances such as those of the main proceedings, where the Supremo Tribunal de Justiça (Supreme Court) interpreted the concept of ‘transfer of an undertaking or a business’ by departing/deviating from the methodology adopted in the relevant case-law of the Court of Justice, the decision made unilaterally by that national court therefore has a significant influence on the assessment of whether there has been a sufficiently serious breach of EU law.

Whether the breach of EU law on the part of the Supremo Tribunal de Justiça (Supreme Court) is excusable or inexcusable

102In the third and last place, as has been recalled in paragraph 52 of the present judgment, the Court stated, in paragraph 55 of its judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513), that the question whether the error of law was excusable or inexcusable forms part of those factors which characterise the situation put before the national court dealing with an application for compensation, with a view to assessing whether there has been a sufficiently serious breach of EU law.

103In the present case, as has been pointed out in paragraph 88 of the present judgment, the judgment of 25 February 2009 started from the premiss that establishing a transfer of an undertaking or a business within the meaning of Directives 77/187 and 2001/23 is subject to the condition that the entity transferred retains its organisational autonomy within the entity which has acquired it.

104However, it should be observed that the Supremo Tribunal de Justiça (Supreme Court) could not be unaware, at that time, that the conformity of such a premiss with the concept of ‘transfer of an undertaking or a business’ within the meaning of those directives was in fact the subject of a preliminary ruling procedure before the Court in the case of Klarenberg (C‑466/07, EU:C:2008:614), in which Advocate General Mengozzi gave his Opinion on 6 November 2008.

105In that connection, it should be borne in mind that, where the solution to the dispute pending before a national court depends on the interpretation of EU law, which is the subject of a simultaneous preliminary ruling procedure before the Court concerning the same aspects of that law, it follows from the obligation of sincere cooperation, enshrined in the first subparagraph of Article 4(3) TEU, that the national court ought, in order to avoid adopting a decision which might run counter to that of the Court of Justice, to take the necessary steps to ensure that the judgment given in that preliminary ruling procedure, in which the Opinion of an Advocate General of the Court was available several months before that judgment was handed down, is taken into consideration.

106It follows that, in the present case, the circumstances set out in paragraph 104 of the present judgment ought to have alerted the Supremo Tribunal de Justiça (Supreme Court) to the risk that the premiss recalled in paragraph 103 of the present judgment might, in essence, be rejected by the Court of Justice. Those circumstances are therefore such as to reduce the likelihood that the incorrect interpretation of EU law by that court in that judgment will be found to be excusable.

Conclusion on the first three questions

107It is by duly taking into account the findings contained in paragraphs 65 to 106 of the present judgment that it will be for the referring court to find, on the basis of an examination of all of the elements that characterise the situation brought before it, within the meaning of paragraphs 54 and 55 of the judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513), whether, in its judgment of 25 February 2009, the Supremo Tribunal de Justiça (Supreme Court) committed a sufficiently serious breach of EU law.

108It will also be for the referring court to ascertain whether, as would appear from the information before the Court, there is a direct causal link between the infringement of Article 1(1) of Directive 77/187 and all or part of the harm suffered by the appellants in the main proceedings, further to the collective redundancy procedure to which they were subject (see, to that effect, judgments of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 59, and of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 116).

109In the light of the foregoing considerations, the answer to the first, second and third questions is that the following circumstances contribute to establishing that, in its judgment of 25 February 2009, the Supremo Tribunal de Justiça (Supreme Court) committed a sufficiently serious breach of Article 1(1) of Directive 77/187: first, the fact that that judgment is vitiated by a combination of errors of interpretation of EU law, assessed in the light of the case-law of the Court of Justice which that court could reasonably be expected to take into account when it adopted that judgment; second, the fact that the judgment of 25 February 2009 was handed down in disregard of the obligation to make a reference for a preliminary ruling which was incumbent on that court pursuant to the third paragraph of Article 267 TFEU; and, third, the fact that the Supremo Tribunal de Justiça (Supreme Court) could not be unaware that the conformity with EU law of the methodological approach taken in that judgment was the specific subject of a request for a preliminary ruling pending before the Court of Justice.

The fourth question

110By way of its fourth question, the referring court is asking, in essence, whether Article 3(1) of Directive 77/187 and Article 3(1) of Directive 2001/23 must be interpreted as precluding national legislation which provides that the receipt, by an employee, of the statutory compensation due following a collective redundancy equates to acceptance, on the part of that employee, of his or her dismissal, with the result that he or she loses the possibility of challenging that dismissal and demanding that his or her rights be safeguarded under those directives.

111In that connection, it is sufficient to state that the protection which Directives 77/187 and 2001/23 aim to afford employees concerned by a transfer of an undertaking or a business is a matter of public policy and, therefore, independent of the will of the parties to the contract of employment. The rules of those directives, in particular those concerning the protection of workers against dismissal by reason of the transfer must therefore be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees. It follows that the employees concerned are not entitled to waive the rights conferred on them by those directives and that those rights cannot be restricted even with their consent (judgment of 10 February 1988, Foreningen af Arbejdsledere i Danmark, 324/86, EU:C:1988:72, paragraphs 14 and 15).

112Consequently, the answer to the fourth question is that Article 3(1) of Directive 77/187 and Article 3(1) of Directive 2001/23 must be interpreted as precluding national legislation which provides that the receipt, by an employee, of the statutory compensation due following a collective redundancy equates to acceptance, on the part of that employee, of his or her dismissal, with the result that he or she loses the possibility of challenging that dismissal and demanding that his or her rights be safeguarded under those directives.

Costs

113Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Grand Chamber) hereby rules:

1.The following circumstances contribute to establishing that, in its judgment of 25 February 2009, the Supremo Tribunal de Justiça (Supreme Court, Portugal) committed a sufficiently serious breach of Article 1(1) of Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses: first, the fact that that judgment is vitiated by a combination of errors of interpretation of EU law, assessed in the light of the case-law of the Court of Justice which that court could reasonably be expected to take into account when it adopted that judgment; second, the fact that the judgment of 25 February 2009 was handed down in disregard of the obligation to make a reference for a preliminary ruling which was incumbent on that court pursuant to the third paragraph of Article 267 TFEU; and, third, the fact that the Supremo Tribunal de Justiça (Supreme Court) could not be unaware that the conformity with EU law of the methodological approach taken in that judgment was the specific subject of a request for a preliminary ruling pending before the Court of Justice.

2.Article 3(1) of Directive 77/187 and Article 3(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses,must be interpreted as precluding national legislation which provides that the receipt, by an employee, of the statutory compensation due following a collective redundancy equates to acceptance, on the part of that employee, of his or her dismissal, with the result that he or she loses the possibility of challenging that dismissal and demanding that his or her rights be safeguarded under those directives.