Judgment of the Court (Tenth Chamber) of 11 June 2026.#ZN v GSP Offshore SRL.#Request for a preliminary ruling from the Curtea de Apel Constanţa.#Reference for a preliminary ruling – Social policy – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23/EC – Article 3(1) – Transfer to the transferee of the obligations arising from a contract of employment existing on the date of the transfer of the undertaking – Option for Member States to provide for the joint and several liability of the transferor and the transferee – Article 8 – Application of national provisions more favourable to employees – Transfer of the obligation to pay salary entitlements not paid by the transferor – Possibility of applying a national provision making the transfer of an obligation subject to the creditor’s consent.#Case C-216/25.

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

11 June 2026 (*)

( Reference for a preliminary ruling – Social policy – Transfers of undertakings – Safeguarding of employees’ rights – Directive 2001/23/EC – Article 3(1) – Transfer to the transferee of the obligations arising from a contract of employment existing on the date of the transfer of the undertaking – Option for Member States to provide for the joint and several liability of the transferor and the transferee – Article 8 – Application of national provisions more favourable to employees – Transfer of the obligation to pay salary entitlements not paid by the transferor – Possibility of applying a national provision making the transfer of an obligation subject to the creditor’s consent )

In Case C‑216/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Constanţa (Court of Appeal, Constanţa, Romania), made by decision of 18 March 2025, received at the Court on 19 March 2025, in the proceedings

ZN

v

GSP Offshore SRL,

THE COURT (Tenth Chamber),

composed of J. Passer, President of the Chamber, M.L. Arastey Sahún (Rapporteur), President of the Fifth Chamber, and B. Smulders, Judge,

Advocate General: R. Norkus,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        the European Commission, by S. Delaude and L. Nicolae, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This reference for a preliminary ruling concerns the interpretation of Article 3(1) and Article 8 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).

2        The request has been made in proceedings between ZN and GSP Offshore SRL, ZN’s former employer, concerning the payment of salary entitlements in relation to work which ZN had carried out for that company prior to the date of a transfer of an undertaking which took place in accordance with an agreement between that company and another company.

 Legal context

 European Union law

3        According to recitals 3 and 8 of Directive 2001/23:

‘(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 [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)] as interpreted by the Court of Justice.’

4        Article 1(1)(a) and (b) of Directive 2001/23 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.’

5        Article 3 of that directive provides:

‘1.      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.

Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.

…

4.      (a)      Unless Member States provide otherwise, paragraphs 1 and 3 shall not apply in relation to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary company or intercompany pension schemes outside the statutory social security schemes in Member States.

…’

6        According to Article 8 of that directive:

‘This Directive shall not affect the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees or to promote or permit collective agreements or agreements between social partners more favourable to employees.’

 Romanian law

 The Labour Code

7        Article 173(2) of Legea nr. 53/2003 privind Codul muncii (Law No 53/2003 on the Labour Code) of 24 January 2003 (Monitorul Oficial al României, Part I, No 72 of 5 February 2003), in the version applicable to the dispute in the main proceedings (‘the Labour Code’), provides:

‘The transferor’s rights and obligations arising from a contract of employment or an employment relationship existing on the date of a transfer shall be transferred in their entirety to the transferee.’

 Law No 67/2006

8        Under Article 5(1) of Legea nr. 67/2006 privind protecția drepturilor salariaților în cazul transferului întreprinderii, al unității sau al unor părți ale acestora (Law No 67/2006 on the protection of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses) of 22 March 2006 (Monitorul Oficial al României, Part I, No 276 of 28 March 2006; ‘Law No 67/2006’):

‘The transferor’s rights and obligations arising from individual contracts of employment and applicable collective agreements existing on the date of the transfer shall be transferred in their entirety to the transferee.’

 The Civil Code

9        Article 1605 of Legea nr. 287/2009 privind Codul civil al României (Law No 287/2009 establishing the Romanian Civil Code) of 17 July 2009 (Monitorul Oficial al României, Part I, No 511 of 24 July 2009) (‘the Civil Code’) provides:

‘The assignment of debt agreed with the debtor shall be effective only if the creditor consents thereto.’

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

10      ZN was employed on an oil rig by GSP Offshore.

11      By letter of 21 February 2024 served on all of its employees, including ZN, GSP Offshore announced that its staff would be taken over by OMV Petrom Energy Solutions SRL (‘OMV Petrom’) as a consequence of a transfer of an undertaking, in accordance with an agreement concluded between those two companies on 8 February 2024 (‘the transfer in question’). OMV Petrom thus became the new employer of those employees.

12      OMV Petrom informed ZN’s lawyer that it was of the opinion that the salary entitlements owed by GSP Offshore as at the date of the transfer in question, for work that ZN had carried out for GSP Offshore prior to that date, remained the responsibility of that company, with the result that OMV Petrom was not required to assume the obligation to pay those salary entitlements.

13      ZN brought an action before the Tribunalul Constanța (Regional Court, Constanța, Romania) seeking to have GSP Offshore ordered to pay those salary entitlements.

14      By judgment of 11 October 2024, that court dismissed that action on the ground that, as a result of the transfer in question, all the transferor’s rights and obligations had been transferred to the transferee, namely OMV Petrom, with the result that GSP Offshore, as the transferor, had been released from any obligation to pay the salary entitlements claimed.

15      ZN brought an appeal against that judgment before the Curtea de Apel Constanţa (Court of Appeal, Constanţa, Romania), which is the referring court, claiming that GSP Offshore remained liable to pay those salary entitlements and relying on the fact that OMV Petrom did not assume the obligation to pay those salary entitlements. ZN thus disputes that the obligations relating to those salary entitlements were transferred from GSP Offshore to OMV Petrom.

16      The referring court states that in other disputes involving the same subject matter between GSP Offshore and other former employees, it held that GSP Offshore, as the transferor, remained liable for the payment of unpaid salary entitlements, as these had not been transferred to the transferee.

17      It notes that, in accordance with the first subparagraph of Article 3(1) of Directive 2001/23, the transferor’s rights and obligations arising from employment contracts existing on the date of the transfer of the undertaking are to be transferred in their entirety to the transferee, with the result that, under that provision, a genuine transfer of debt takes place by reason of that transfer. That provision was transposed into national law by Article 5(1) of Law No 67/2006 and Article 173(2) of the Labour Code.

18      By contrast, the Romanian legislature did not implement, in national legislation, the option provided for in the second subparagraph of Article 3(1) of that directive, under which Member States may provide that, after the date of transfer of the undertaking, the transferor and the transferee are to be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment existing on the date of the transfer.

19      In that respect, the referring court refers to the judgment of 5 May 1988, Berg and Busschers (144/87 and 145/87, EU:C:1988:236), in which the Court interpreted Article 3(1) of Directive 77/187, which was repealed and replaced by Directive 2001/23.

20      In that judgment, the Court held that that provision must be interpreted as meaning that after the date of transfer and by virtue of the transfer of the undertaking alone, the transferor is discharged from all obligations arising under the contract of employment or the employment relationship, even if the workers employed in the undertaking did not consent or if they object, subject however to the power of the Member States to provide for the joint and several liability of the transferor and the transferee after the date of transfer.

21      That being so, the referring court considers that the Court’s findings in that judgment must be understood in the light of the context of the employment relationships existing at the time it handed down that judgment. At the present time, account should be taken both of developments in the Court’s case-law, in particular as regards the concept of a ‘transfer of an undertaking’, within the meaning of Directive 2001/23, and of developments in employment relationships which demonstrate that the provisions of that directive may be relied on with an aim contrary to that which the directive pursues, namely in order to deprive employees of the protection of their rights in the context of a transfer of an undertaking, rather than to guarantee that protection.

22      As regards the concept of a ‘transfer of an undertaking’, the referring court states that, at the time of the adoption of Directive 77/187, the solution whereby the transferee was required to assume the transferor’s debts arising prior to the transfer of the undertaking was logical, since the transferee was taking over the undertaking’s assets, contracts and claims in order to be able to ensure the payment of unpaid salary entitlements. However, since then, the Court has held, in particular in the judgment of 11 March 1997, Süzen (C‑13/95, EU:C:1997:141), that the taking over of a group of employees may constitute a transfer of an undertaking, without necessarily requiring a body of tangible assets, means of production or other assets to be taken over.

23      It is thus possible for a transfer of an undertaking to involve solely the transfer of a certain number of employees, to the exclusion of any assets, as in the case in the main proceedings, and for the transferor to be released from any obligation to pay unpaid salary entitlements, which would be transferred, without the employees’ consent, to the transferee.

24      As regards the present case, the referring court states that it is apparent from the publicly available information relating to OMV Petrom that that company has a share capital in the amount of 2 000 Romanian lei (RON) (approximately EUR 400), which would not be sufficient to cover the salary entitlements owed to all the transferred employees.

25      According to that court, in such a situation, it must be considered that the objective of Directive 2001/23 has not been achieved. To the contrary, the provisions of Article 3(1) of that directive constitute the means of depriving employees of the guarantee of payment of unpaid salary entitlements.

26      Against that background, first, the referring court asks whether it may consider that a general provision, such as Article 1605 of the Civil Code, which makes the assignment of debt subject to the consent of the creditor, constitutes the transposition into national law of the option provided for in the second subparagraph of Article 3(1) of Directive 2001/23.

27      Second, the referring court notes that Article 8 of that directive allows Member States to apply laws, regulations and administrative provisions which are more favourable to employees. In that regard, it states that Article 1605 of the Civil Code is more favourable to an employee who, being of the view that the rule laid down in the first subparagraph of Article 3(1) of that directive is in fact detrimental to him or her, chooses to pursue the transferor rather than the transferee.

28      The referring court therefore asks whether, in order to ensure that employees are able to recover from the transferor salary entitlements that were not paid prior to the transfer of the undertaking, it may apply Article 1605 of the Civil Code, which would mean that, in the absence of the consent of the creditor – namely the employee – to the assignment of the debt relating to those salary entitlements, the transferor would not be deemed to be released from the obligation to pay them.

29      According to that court, such a possibility could be accepted, in the first place, if the Member States’ power to implement the second subparagraph of Article 3(1) of Directive 2001/23 could be transposed into national law by means of provisions of a general nature, such as those of the Civil Code, and not only by means of special provisions expressly stating that they are intended to transpose that directive.

30      If it were to be held that that option cannot be implemented by a provision of a general nature, the question arises, in the second place, whether Article 8 of that directive allows national courts to apply such a general provision, as a rule more favourable to employees than that provided for in the first subparagraph of Article 3(1) of that directive.

31      In those circumstances, the Curtea de Apel Constanța (Court of Appeal, Constanța) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is Article 3(1) of [Directive 2001/23] to be interpreted as:

(a)      precluding the application of a general provision of national law which makes the transfer of an obligation between two debtors subject to the creditor’s consent, in the case of a transfer governed by that directive, concerning the transferor’s obligations arising from a contract of employment or an employment relationship existing on the date of the transfer, which are transferred to the transferee?

(b)      meaning that the exception provided for in the second subparagraph of that paragraph can be regarded as having been established by a general provision of national law adopted after the law transposing the directive – a general provision making the transfer of an obligation between two debtors subject to the creditor’s consent – or must that exception be established through a special legislative provision?

(2)      If [the two parts of the first question] are answered in the negative, can Article 8 of [Directive 2001/23] be interpreted as permitting States (including courts) to apply a general provision which makes the transfer, from the transferor to the transferee, of obligations relating to remuneration arising before the transfer subject to the creditor employee’s consent, as a more favourable provision than the first subparagraph of Article 3(1) of [that directive], as transposed by a specific national law?’

 Consideration of the questions referred

 The first question

32      By its first question, the referring court asks, in essence, whether Article 3(1) of Directive 2001/23 must be interpreted as precluding the application, in the context of a transfer of an undertaking within the meaning of that directive, and as regards the payment of salary entitlements not paid by the transferor, of a national provision which makes the transfer of an obligation between two debtors subject to the creditor’s consent, with the result that the transfer to the transferee of the transferor’s obligations relating to the payment of those salary entitlements would be subject to the consent of the employee concerned, and whether the fact that that national provision is of a general or special nature is relevant in that regard.

33      It must be borne in mind that, under the first subparagraph of Article 3(1) of that directive, the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer of an undertaking are, by reason of such transfer, to be transferred to the transferee.

34      In addition, the second subparagraph of Article 3(1) of that directive states that Member States may provide that, after the date of transfer, the transferor and the transferee are to be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.

35      It should be observed at the outset that it is apparent from the request for a preliminary ruling that the Romanian legislature transposed the first subparagraph of Article 3(1) of Directive 2001/23 both in Article 5(1) of Law No 67/2006 and in Article 173(2) of the Labour Code, but that it has not implemented, in those national provisions, the option provided for in the second subparagraph of Article 3(1) of that directive.

36      That being so, the referring court asks whether it may consider that that option has been implemented by means of a general provision of national law, such as Article 1605 of the Civil Code, which makes the assignment of debt subject to the consent of the creditor. Indeed, it is inclined to consider that, in the context of the transfer in question, it should be held that the obligation to pay the salary entitlements owed by the transferor to the employee concerned before the date of that transfer was not, in the absence of that employee’s consent, transferred to the transferee.

37      In that regard, in the first place, it must be recalled that, in paragraph 11 of the judgment of 5 May 1988, Berg and Busschers (144/87 and 145/87, EU:C:1988:236), the Court held, as regards Article 3(1) of Directive 77/187, which was in essence equivalent to Article 3(1) of Directive 2001/23, that the transfer of an undertaking entails the automatic transfer, from the transferor to the transferee, of the employer’s obligations arising from a contract of employment or from an employment relationship, subject however to the right of Member States to provide for the joint and several liability of the transferor and transferee following the transfer. The Court inferred from this that, unless the Member States avail themselves of that possibility, the transferor is released from its obligations as an employer solely by reason of the transfer and that that legal consequence is not conditional on the consent of the employees concerned.

38      In paragraph 12 of that judgment, the Court held that such an interpretation was consistent with the objective pursued by Directive 77/187, which was to safeguard the rights of employees in the event of a change of employer by making it possible for them to continue to work for the new employer on the same conditions as those agreed with the transferor.

39      Furthermore, in paragraph 13 of that judgment, the Court noted that, by providing for such an automatic transfer of the obligations arising from an employment contract, that directive overrode the principle – relied on by the applicants in the main proceedings in the case giving rise to that judgment – that a debt may be transferred only with the creditor’s consent. It added that, by granting the Member States the power to provide for the joint and several liability of the transferor and the transferee following the transfer, the second subparagraph of Article 3(1) of that directive enabled them to reconcile the rule of automatic transfer of obligations arising under the contract of employment with the principles of their domestic legal systems.

40      Thus, the Court held that Article 3(1) of Directive 77/187 had to be interpreted as meaning that after the date of the transfer of the undertaking and by virtue of that transfer alone, the transferor is discharged from all obligations arising under the contract of employment or the employment relationship, even if the workers employed in the undertaking did not consent or if they object, subject however to the power of the Member States to provide for the joint and several liability of the transferor and the transferee after the date of transfer (judgment of 5 May 1988, Berg and Busschers, 144/87 and 145/87, EU:C:1988:236, paragraph 14).

41      As is apparent from paragraph 35 of the present judgment, the Romanian legislature has not, in the national provisions referred to in that paragraph, exercised that option to provide for the joint and several liability of the transferor and the transferee, pursuant to the second subparagraph of Article 3(1) of Directive 2001/23.

42      In the second place, it should be borne in mind that the Court has also held that implementation of the rights conferred on employees by Directive 2001/23, in particular by Article 3(1) thereof, may not be made subject to the consent of the transferor or the transferee, nor to the consent of the employees’ representatives or the employees themselves, with the sole reservation, as regards the latter, that, following a decision freely taken by them, they are at liberty, after the transfer, not to continue the employment relationship with the new employer (see, to that effect and by analogy, judgments of 25 July 1991, d’Urso and Others, C‑362/89, EU:C:1991:326, paragraph 11; of 24 January 2002, Temco, C‑51/00, EU:C:2002:48, paragraphs 35 and 36; and of 26 May 2005, Celtec, C‑478/03, EU:C:2005:321, paragraph 37).

43      In that regard, it must be noted that that latter reservation does not appear to be relevant in the context of the dispute in the main proceedings. Indeed, according to the information set out in the request for a preliminary ruling, which it is for the referring court to confirm, where appropriate, in the present case the employee concerned is challenging not the continuation of the employment relationship with the transferee, but only the fact that the transferor, following the transfer in question, was allegedly released from its obligations relating to the payment of salary entitlements in respect of work that that employee had performed for the transferor.

44      In the third and last place, it follows from the case-law that the transfer provided for in Article 3(1) of Directive 2001/23 encompasses all the rights of employees, in so far as they do not come within one of the exceptions to the application of that provision laid down in Article 3(4) of that directive (see, to that effect, order of 28 January 2015, Gimnasio Deportivo San Andrés, C‑688/13, EU:C:2015:46, paragraph 52 and the case-law cited), irrespective of whether those rights arose before or after the transfer of the undertaking (see, to that effect and by analogy, judgment of 7 February 1985, Abels, 135/83, EU:C:1985:55, paragraphs 37 and 38).

45      The Court has also stated that, in so far as the second subparagraph of Article 3(1) of that directive authorises the Member States to provide that the transferor and the transferee are, ‘after the date of transfer’, to be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer, it is the transferee who is primarily liable for bearing the burdens resulting from employees’ rights existing at the time of the transfer (see, to that effect and by analogy, judgment of 7 February 1985, Abels, 135/83, EU:C:1985:55, paragraph 36).

46      Consequently, and also in the light of the case-law referred to in paragraphs 39 and 44 of the present judgment, it is necessary to dismiss the relevance, for the interpretation of Article 3(1) of Directive 2001/23, of a principle, like the one to which the rule set out in Article 1605 of the Civil Code corresponds, according to which a debtor may not transfer his or her debts to a third party without the consent of his or her creditors, including in relation to the transfer of the obligation to pay salary entitlements that were owed by the transferor to the employee concerned prior to the date of the transfer of the undertaking, subject, however, to the option available to Member States, referred to in the second subparagraph of Article 3(1) of Directive 2001/23, to provide for the joint and several liability of the transferor and the transferee after that date.

47      As regards, more specifically, that second subparagraph, it must be noted that it is not intended to derogate from the basic principle, laid down in the first subparagraph of Article 3(1), according to which the transferee becomes, by reason of the transfer, liable for the obligations arising from the contract of employment, but to enable the application of that basic principle to be supplemented by providing that that liability may continue to be borne by the transferor, in addition to the transferee.

48      Thus, the second subparagraph of Article 3(1) of Directive 2001/23 does not permit interference with that basic principle, according to which the obligations arising from the employment contract are automatically transferred to the transferee, even if the employees of the undertaking do not consent to that or if they object to it, as is apparent from the case-law referred to in paragraph 40 of the present judgment.

49      It follows that that provision cannot in any event be implemented by means of a rule which has the effect of making the transfer of those obligations subject to the employee’s consent, irrespective of whether, as noted in the first question, such a rule is laid down by a national provision of a general or of a special nature.

50      It should also be noted that that interpretation of Article 3(1) of Directive 2001/23 cannot be called into question by the arguments put forward by the referring court in its request for a preliminary ruling, as referred to in paragraph 21 of the present judgment.

51      In the first place, the referring court states that, since the judgment of 5 May 1988, Berg and Busschers (144/87 and 145/87, EU:C:1988:236), the case-law of the Court relating to the concept of a ‘transfer of an undertaking’ has evolved, as is shown by the judgment of 11 March 1997, Süzen (C‑13/95, EU:C:1997:141).

52      In that regard, it is sufficient to note that the principle that the rights and obligations arising from employment contracts existing on the date of the transfer of an undertaking are automatically transferred to the transferee, without that effect being subject to the consent of, inter alia, the employees, is a well-established principle of the case-law of the Court subsequent to the judgment of 5 May 1988, Berg and Busschers (144/87 and 145/87, EU:C:1988:236), as is shown, in particular, by the case-law cited in paragraph 42 of the present judgment.

53      In any event, as is apparent from recital 8 of Directive 2001/23, although considerations of legal certainty and transparency required the concept of ‘transfer’ to be clarified in the light of the case-law of the Court, the fact remains that such a clarification, set out in Article 1(1)(b) of that directive, has not had the effect of altering the scope of Directive 77/187 or, consequently, the scope of Directive 2001/23.

54      In the second place, the referring court states that developments in employment relationships show that the provisions of Directive 2001/23 could be relied on for a purpose contrary to that pursued by that directive, namely with the aim of depriving employees of the protection of their rights in the context of a transfer of an undertaking rather than of guaranteeing that protection.

55      In that regard, it should be borne in mind, as was noted in paragraph 38 of the present judgment, that, as is apparent from Article 3 of Directive 2001/23, read in the light of recital 3 thereof, the objective of that directive is to protect employees by ensuring that their rights are safeguarded in the event of a change of employer by enabling them to remain in the service of the new employer on the same conditions as agreed with the transferor. The purpose of that directive is to ensure, as far as possible, that the contract of employment or employment relationship continues unchanged with the transferee, in order to prevent the employees concerned from being placed in a less favourable position solely as a result of the transfer (judgment of 9 September 2020, TMD Friction and TMD Friction EsCo, C‑674/18 and C‑675/18, EU:C:2020:682, paragraph 48 and the case-law cited). That being said, as is apparent from paragraphs 37 and 38 of the present judgment, such a transfer, subject to the exercise of the option provided for in the second subparagraph of Article 3(1), which is not relevant in the present case, also has the effect of releasing the transferor from its obligations as employer.

56      As the European Commission points out in its written observations, it must be borne in mind that the application of EU legislation cannot be extended to cover transactions carried out for the purpose of fraudulently or wrongfully obtaining advantages provided for by EU law. It is clear from settled case-law that proof of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those laws has not been achieved and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (judgment of 30 October 2025, Mercedes-Benz Bank and Volkswagen Bank, C‑143/23, EU:C:2025:837, paragraphs 79 and 81 and the case-law cited).

57      It is ultimately for the national court to verify the existence of an abusive practice in the dispute pending before it, taking into account all the facts and circumstances of the case, including those subsequent to the transaction which is alleged to be abusive (judgment of 30 October 2025, Mercedes-Benz Bank and Volkswagen Bank, C‑143/23, EU:C:2025:837, paragraph 82 and the case-law cited).

58      In the light of all the foregoing considerations, the answer to the first question is that Article 3(1) of Directive 2001/23 must be interpreted as precluding the application, in the context of a transfer of an undertaking within the meaning of that directive, and as regards the payment of salary entitlements not paid by the transferor, of a national provision which makes the transfer of an obligation between two debtors subject to the creditor’s consent, with the result that the transfer to the transferee of the transferor’s obligations relating to the payment of those salary entitlements would be subject to the consent of the employee concerned, irrespective of whether that national provision is of a general or a special nature.

 The second question

59      By its second question, the referring court asks, in essence, whether Article 8 of Directive 2001/23 must be interpreted as permitting the application, in the context of a transfer of an undertaking within the meaning of that directive, and as regards the payment of salary entitlements not paid by the transferor, of a national provision which makes the transfer of an obligation between two debtors subject to the creditor’s consent, with the result that the transfer to the transferee of the transferor’s obligations relating to the payment of those salary entitlements would be subject to the consent of the employee concerned.

60      That Article 8 provides that that directive does not affect the right of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees or to promote or permit collective agreements or agreements between social partners more favourable to employees.

61      In that regard, it must be borne in mind that Directive 2001/23 is intended to achieve only partial harmonisation in that area, essentially by extending the protection guaranteed to employees independently by the laws of the individual Member States to cover the case where an undertaking is transferred. It is not, however, intended to establish a uniform level of protection throughout the European Union on the basis of common criteria (judgment of 11 September 2014, Österreichischer Gewerkschaftsbund, C‑328/13, EU:C:2014:2197, paragraph 22 and the case-law cited).

62      Nevertheless, the application of national provisions more favourable to employees, pursuant to Article 8 of Directive 2001/23, cannot have the effect of undermining the minimum protection guaranteed to employees by that directive and, in particular, by Article 3(1) thereof, according to which the rights and obligations arising from the employment contract are automatically transferred to the transferee (see, to that effect and by analogy, judgments of 19 November 2019, TSN and AKT, C‑609/17 and C‑610/17, EU:C:2019:981, paragraph 35 and the case-law cited, and of 2 March 2023, MÁV-START, C‑477/21, EU:C:2023:140, paragraph 51).

63      Nor can the application of such national provisions adversely affect the coherence of that directive or the objectives pursued thereby (see, to that effect and by analogy, judgments of 19 November 2019, TSN and AKT, C‑609/17 and C‑610/17, EU:C:2019:981, paragraph 51, and of 12 June 2025, Tallinna linn, C‑219/24, EU:C:2025:442, paragraph 48).

64      Even assuming that a national provision making the transfer of an obligation between two debtors subject to the creditor’s consent, such as Article 1605 of the Civil Code, constitutes a provision more favourable to employees than Article 3(1) of Directive 2001/23, the fact remains that the application of such a national provision would undermine the fundamental principle underlying Article 3(1), according to which the transferee becomes, by reason of the transfer, automatically liable for the obligations arising from the employment contract, including where the employees concerned do not consent to this or object to it, as is apparent from the answer given to the first question. In those circumstances, the application of such a national provision would adversely affect the coherence of that directive and the minimum protection guaranteed to employees by it, in particular by Article 3(1) thereof.

65      In the light of all the foregoing considerations, the answer to the second question is that Article 8 of Directive 2001/23 must be interpreted as precluding the application, in the context of a transfer of an undertaking within the meaning of that directive, and as regards the payment of salary entitlements not paid by the transferor, of a national provision which makes the transfer of an obligation between two debtors subject to the creditor’s consent, with the result that the transfer to the transferee of the transferor’s obligations relating to the payment of those salary entitlements would be subject to the consent of the employee concerned.

 Costs

66      Since 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.

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

1.      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 the application, in the context of a transfer of an undertaking within the meaning of that directive, and as regards the payment of salary entitlements not paid by the transferor, of a national provision which makes the transfer of an obligation between two debtors subject to the creditor’s consent, with the result that the transfer to the transferee of the transferor’s obligations relating to the payment of those salary entitlements would be subject to the consent of the employee concerned, irrespective of whether that national provision is of a general or a special nature.

2.      Article 8 of Directive 2001/23

must be interpreted as precluding the application, in the context of a transfer of an undertaking within the meaning of that directive, and as regards the payment of salary entitlements not paid by the transferor, of a national provision which makes the transfer of an obligation between two debtors subject to the creditor’s consent, with the result that the transfer to the transferee of the transferor’s obligations relating to the payment of those salary entitlements would be subject to the consent of the employee concerned.

[Signatures]

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*      Language of the case: Romanian.