Consistent criteria regarding the "Group of Companies".- In particular, the following have been consistent criteria of the Supreme Court Chamber:
a).- That "it is not sufficient that the mere fact that two or more companies belong to the same corporate group in order to derive from this, without more, joint and several liability in respect of obligations entered into by one of them with its own employees; additional elements are also required", because "the members of the group have in principle their own sphere of responsibility as independent legal entities".
b).- That the unified management of several business entities is not sufficient to extend liability to all of them, as that fact will only be determinative of the existence of the corporate group, not of shared liability for the obligations of any one of them.
c).- That joint and several liability is likewise not established by the existence of a common commercial management, since neither control through shared governing bodies nor unified management of the companies within a group are sufficient factors to affirm the existence of a "single business entity".
2.- Elements traditionally giving rise to Group liability.- In order to achieve the effect of joint and several liability, an additional element is required, which this Chamber has traditionally located in the combination of one or more of the following factors: a) Unified operation of the workforce structures of the companies within the group; b) Provision of work, whether simultaneously or successively, for the benefit of several companies within the group; c) Creation of shell companies with no genuine substance, used to disperse or evade employment-related liabilities; and d) Commingling of workforces, commingling of assets, outward appearance of a single business entity, and unified management.
3.- Current clarifications on these elements.- Within that account of additional factors — those that trigger joint and several liability — the following clarifications must be made: a) the outward appearance of unity should not be regarded as a truly additional element, since it is an inherent feature of the group, representing nothing more than the external manifestation of the unified management that is characteristic of it; b) the unified operation of business organisations has both an individual dimension [indistinct performance of work] and a collective one [commingling of workforces], giving rise to a plurality of employers [the various companies that receive the services rendered]; c) commingling of assets is not to be identified at the level of share capital, but rather at the level of the overall patrimony, nor does it necessarily follow — though it may be an indicator — from the mere use of shared infrastructure; d) the single cash pool refers to what legal doctrine has described as "promiscuity in economic management"; e) the element of the "sham company" — closely linked to the commingling of assets and workforces — refers to the fraudulent use of legal personality, which is precisely what permits the application of the "piercing the corporate veil" doctrine; and f) legitimate unified management may be exercised abusively — giving rise to joint liability — when it is exercised in an abnormal manner and causes harm to employees, as in cases where actions are taken solely for the benefit of the group or of the company dominant entity.
4.- Summary of additional elements.- Accordingly, the additional elements that determine the liability of the various company within the group may be summarised as follows: 1st) the unified operation of the workforce organisations of the companies within the group, evidenced by the indistinct performance of work — whether simultaneously or successively — for the benefit of several companies within the group; 2nd) commingling of assets; 3rd) a single cash pool; 4th) fraudulent use of legal personality, through the creation of a "sham" company; and 5th) the abusive — abnormal — exercise of unified management, to the detriment of employees' rights.
SEVENTH.- 1.- Basis of the appellant's complaint.- As noted above, the case law argument put forward in the appeal is premised on the assertion that we are dealing with a "pathological" group, and that, on this basis, joint employment liability attaches to all its member companies, which are treated as forming a single employer. This premise and its conclusion are derived from the aforementioned factors of unified management, unified external appearance, commingling of assets, and commingling of workforces — all of which were the primary subject of the review of the established facts and which we rejected in section "2" of Legal Ground Two. That alone would suffice to dismiss the complaint; however, in the interest of providing fuller reasoning commensurate with the complexity and importance of the issue at hand, we consider it appropriate to make some observations regarding the irrelevance or absence of the "additional factors" invoked in the appeal as determinative of the Group's employment liability.
2.- Unified management and unified external appearance.- As we held above — Legal Ground Six.1 — unified management merely establishes the existence of a Group among the companies that share it, but in no way entails the joint and several liability of its members or their treatment as a "single employer entity". Moreover, such unified management is inherent to European Economic Interest Groupings (EEIGs), as their statutory framework makes clear [Law 12/1991]: as we also noted previously (Legal Ground Four.2), their instrumental character in the service of their members [Arts. 2 and 3], and the corresponding management by those members or by managers appointed by them [Arts. 10 to 12], necessarily entail the very unified management that the appeal seeks — unnecessarily — to demonstrate, and to which it — improperly — attributes decisive significance in relation to the collective liability under consideration and to the role that the Group ought to have played in the collective dismissal. Such joint and several liability is, in fact, expressly provided for by law — but in the opposite direction — for the EEIG's own debts [Art. 5], even though the profits or losses of the EEIG are attributed to its members in proportion to their respective participation [Art. 21].
As regards external appearance, we must also reiterate what was stated in the preceding Ground of Judgment: that this appearance of unity is simply the outward expression of the unified management inherent to the company Group, and therefore represents nothing more than the visible manifestation of that group — an intrinsic element of it — rather than an additional factor from which to infer the existence of a "single business entity" and potential "joint employment liability" for all its member companies [which is unrelated to the joint and several liability for the debts of the EIG (Economic Interest Grouping), which we have already addressed].
On this same matter — the concept of a single business entity — it is necessary to address the argument also advanced by the appeal: namely, that this characteristic is evidenced by the fact that the decision to dissolve GESCLINIC was taken by QSA, which was therefore the decision-maker behind the collective dismissal. In response, it must be noted, first, that the power to dissolve an EIG rests — as we shall see presently — with the companies that created it; and second, that EU case law interpreting Article 2 of Directive 98/59 denies employer status to the parent company within company groups, even where the decision to terminate was made by that parent company [CJEU judgment of 10 September 2009, Case AEK and Others, paragraphs 57 and 58] (as noted in the aforementioned Supreme Court judgment of 27/05/13 — appeal no. 78/12).
3.- Commingling of assets and workforces.- As regards the alleged "commingling" of assets, it is worth noting the singular — indeed, extraordinary — reasoning employed by the appeal to reach that conclusion [namely, that if the dissolution of GESCLINIC is contemplated in the Strategic Plan to ensure the viability of QSA, this constitutes evidence of commingling of assets]. This reasoning entirely disregards the instrumental function of the EIG referred to above, and the fact that its losses are borne by its member partners — even though the EIG has its own legal personality [Article 1, Law 12/1991] — so that it is entirely understandable that the elimination of a source of losses [the EIG] should feature in the Viability Plan of its partners, who are the ones responsible for covering its deficit.
This is so regardless of the fact that such a claim — that of asset commingling — and the sophistic argument by which it is reached, also disregard two decisive regulatory circumstances referred to above: a) that the AIE (Economic Interest Grouping) will be dissolved — apart from other grounds not relevant here — by agreement of the members and by the cessation of its activity or the impossibility of carrying it out [Art. 18], which is obviously the case when — as in these proceedings — the sale or closure of the healthcare centres whose management constitutes the object of the AIE occurs; and b) that the members must maintain accounting records with separate accounts reflecting their relations with the Grouping [Art. 28].
As regards "workforce commingling", we must again highlight the gratuitous nature of the reasoning by which that conclusion is reached [if "Gesclinic's employees 'worked exclusively for the group' … the workforce commingling requirement is undoubtedly satisfied"], since this disregards the legal purpose of the Economic Interest Grouping [we refer to the provisions reproduced above]. And although the appeal does not insist on this point, we consider it necessary to note that some of the AIE's workers came from CARSA; but regardless of the fact that, in the view of the contested ruling, what took place at the time was an "integration" of that staff — in terms that are not specified and which prevent a proper legal characterisation — what is clear is that, in any event, it must not be forgotten that, save in special cases, the movement of employees within companies belonging to the same group does not pursue an unlawful interposition in the contract to conceal the true employer, but rather responds to technical and organisational reasons arising from the division of labour within the group of companies; a practice that is lawful in appearance, provided that the necessary safeguards are put in place for the employee, with analogical application of Art. 43 ET (STS 26/11/90 — rec. 645/90 —; … 23/01/02 — rec. 1759/2001 —; and 04/04/02 — rec. 3045/2001 —. And in obiter dicta, those of 25/06/09 — rco 57/08 —; 21/01/10 — rcud 1336/09 —; and 11/07/12 — rcud 1591/11 —). However, the dispute in these proceedings does not raise any issue arising from Art. 43 ET, but rather concerns the lawfulness of a collective termination carried out by a company — an AIE — with its own legal personality [Art. 1, Law 12/1991].
4.- Legality versus pathology.- Finally, two considerations are in order which we regard as decisive: a) first, it is difficult to characterise as "pathological" any corporate action that complies fully and faithfully with the requirements of the applicable legislation [Law 12/1991], and all the more so when the claimant has not even suggested that the conduct of the defendant Group — in dissolving the EIG — concealed any fraudulent intent or constituted an abuse of rights [under the EIG regulations]; and b) second, the purpose pursued by the legislature in creating — in line with EU law: EEC Regulation 2137/85 — Economic Interest Groupings, and in particular their specific rules on dissolution of the EIG — which are unusual in employment law terms — would be entirely undermined if the ordinary doctrine on corporate groups and collective dismissal procedures were applied to them. This is because, by clear statutory provision, the dissolution of the Grouping — and the consequent collective termination of employment contracts — lies within the sovereign discretion of the members, who, whilst required to be subsidiarily and jointly liable for the economic consequences of that decision, are in no case subject to the economic/operational justification requirements that would apply — precisely — under the regulations governing collective dismissals arising from their decision to dissolve the EIG."
in accordance with the doctrine of Chamber IV of the Supreme Court set out above, it can be concluded that the case under examination displays sufficient elements to establish that we are dealing with what is known as a corporate group for employment law purposes, namely the EPRTVM, to which the two instrumental commercial companies belong. There is evidence of a single budget, a single registered address, joint financing, a single director, and a single collective bargaining agreement applicable to both the Public Entity and the two instrumental commercial companies — in short, an integrated operation across the group. Furthermore, Article 9 of the collective bargaining agreement itself expressly provides for the possibility of employees of one company providing services for the other or for the Public Entity.
As such, the Group of companies formed by the co-defendant entities constitutes a group not only for corporate law purposes but also for employment law purposes, given that it meets all the requirements established by the case law referred to above. Accordingly, the group has standing to initiate a collective dismissal such as the present one in respect of all the companies within it. This means that, when examining whether the grounds invoked for the collective dismissal are met, all the affected companies must be assessed as workplaces forming part of the business Group.
