Planning a merger, acquisition or division of (part of) a business in the Netherlands or any other EU country? Be aware of the EU law which sets out the strong position of employees in case of a transfer of undertaking (Directive 2001/23/EC). Russell Advocaten will inform you on this legislation and the consequences thereof by a series of newsletters. This time: Criteria for a transfer of undertaking.
In case of a transfer of undertaking all rights and duties arising from the employment contract(s) with the transferor existing at the time of the transfer will be transferred to the transferee by law (thus, without any further proceedings). Therefore, it is important to be aware of the criteria for a transfer of undertaking. A transfer of undertaking exists when an undertaking retains its identity by a transfer arising from a contract, merger or division. There is a significant amount of (European) case law on when a transfer should be considered a transfer of undertaking. This case law shows that it is not necessary for the transferor (the party that ceases to be the employer) and the transferee (the party that becomes the new employer) to have aimed at a transfer. Even a direct contractual relation between the transferor and the transferee is not required for the existence of a transfer of undertaking. The transfer of a single activity may also qualify as a transfer of undertaking (for instance, only a cleaning division of a company is being transferred).
To determine whether the undertaking has retained its identity several matters must be taken into account, including:
Would you like to receive more information about the EU law on transfer of undertaking and the consequences thereof? Or do you have any other questions on employment law? Please contact:
Jan Dop, LL.M. (jan.dop@russell.nl).
The salary thresholds for highly skilled migrants and European Blue Card holders are adjusted annually. What will be the amounts for 2026? Also, stricter rules for the highly skilled migrant scheme are proposed. What might change?
When can directors be held personally liable? What can directors do to prevent being held personally liable?
On-call contracts offer many advantages for both employers and on-call employees. However, there are also a few rules that they need to take into account. What are they?
What shall we do with the drunken employee? Sack him? That isn’t always allowed. Alcohol abuse may be the result of an addiction and in that case the prohibition on termination during illness may apply. What do you have to take into account when dismissing an employee due to alcohol consumption?
The Transparency and Countering Undermining by Civil Society Organisations Act (Wtmo) imposes a number of new obligations on charities in the Netherlands. What are these? What measures should non-profit organisations take as a result?
24 November 2025 was Equal Pay Day in the Netherlands: the day of the year when men have earned on average as much as women in a whole year. How can the European Directive on wage transparency ensure that men and women are paid equally?
