This CJEU case relates to Portuguese law applying the Acquired Rights Directive (implementing the equivalent of our Transfer Regulations 2003). Local law in Portugal provided that a change of service provider does not give rise to a business transfer.  We do not have this same provision in the Irish Regulations.  This CJEU case held that a statutory provision of that nature is inconsistent with the Directive, and unenforceable as such.  
 
The case related to a change from one security provider to another at a Port, where the employees were responsible for monitoring the entry and exit of people and goods, by means of video surveillance devices, wearing uniforms and radio equipment provided by their employer ICTS, in accordance with rules laid down by their employer.
 
On the changeover date, the outgoing employer’s employees handed over the radio equipment used by the employees at the Port, to an employee of the new incoming provider (Securitas), having been told by their employer to do so. The outgoing employer (ICTS) informed its employees that they would be transferred in their employment to the new incoming provider Securitas. 
 
The new provider, Securitas began performing its security guard services, and it provided its newly hired security guards which it assigned to this contract with radio equipment, which Securitas itself owned. Securitas surrendered the ICTS radio equipment to the Port Authorities.  It also provided its staff with identical uniforms. Securitas informed the employees that they were not part of its staff, and that ICTS remained their employer. This gave rise to the litigation that ensued.
 
The CJEU considered if there was a business transfer, where there was an economic entity which retained its identity.  The CJEU held that the security activity at the Port is based essentially on equipment. It met the “asset-intensive” test, where ICTS transferred to Securitas, directly or indirectly, equipment or tangible or intangible assets for the purpose of carrying out security guard activities in the facilities in question. The Court indicated that the fact that the tangible assets essential to the performance of the activity belonged to the contracting entity, rather than the outgoing employer, cannot preclude the existence of a transfer of an undertaking.  The CJEU also held that only the equipment that is actually used in order to provide the security guard services, excluding the facilities that are the subject of those services, must be taken into consideration, for the purpose of establishing the existence of a transfer of an entity, which retains its identity.
 
The Court held that there could be a business transfer, where the equipment essential to the performance of the services has been taken over by the incoming employer. CJEU held this could be a business transfer and referred back to the Courts in Portugal for a final analysis on the facts.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=195740&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=287093