CELEX: 62021CJ0524
Reference for a preliminary ruling
Social policy
Protection of employees in the event of their employer’s insolvency
Directive 2008/94/EC
Employees’ salary claims borne by guarantee institutions
Limitation of the liability of guarantee institutions to employees’ salary claims relating to the three months prior or subsequent to the date on which insolvency proceedings are opened
Application of a limitation period
Recovery of payments unduly made by the guarantee institution
Conditions

These requests for a preliminary ruling concern the interpretation of Article 1(1), Article 2(1), the second paragraph of Article 3, Article 4(2) and Article 12(a) of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (OJ 2008 L 283, p. 36).
The requests have been made in proceedings between (i) IG and the Agenția Județeană de Ocupare a Forței de Muncă Ilfov (Employment Agency of the District of Ilfov, Romania; ‘the Ilfov Agency’) (Case C‑524/21) and (ii) the Agenția Municipală pentru Ocuparea Forței de Muncă Bucureşti (Employment Agency of the Municipality of Bucharest, Romania; ‘the Bucharest Agency’) and IM (Case C‑525/21), concerning the recovery by those agencies of amounts paid by the Fondul de garantare pentru plata creanțelor salariale (the Guarantee Fund for the Payment of Salary Claims, Romania;  ‘the Guarantee Fund’) in respect of the outstanding salary claims of IG and IM, who are both employees.

Legal context

European Union law
Chapter I of Directive 2008/94, entitled ‘Scope and definitions’, comprises Articles 1 and 2.
Under Article 1(1) of that directive:
‘This Directive shall apply to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1).’
Article 2(1) of the directive provides as follows:
‘For the purposes of this Directive, an employer shall be deemed to be in a state of insolvency where a request has been made for the opening of collective proceedings based on insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a Member State, and involving the partial or total divestment of the employer’s assets and the appointment of a liquidator or a person performing a similar task, and the authority which is competent pursuant to the said provisions has:
(a)      either decided to open the proceedings; or
(b)      established that the employer’s undertaking or business has been definitively closed down and that the available assets are insufficient to warrant the opening of the proceedings.’
Chapter II of Directive 2008/94, entitled ‘Provisions concerning guarantee institutions’, comprises Articles 3 to 5.
Article 3 of that directive provides:
‘Member States shall take the measures necessary to ensure that guarantee institutions guarantee, subject to Article 4, payment of employees’ outstanding claims resulting from contracts of employment or employment relationships, including, where provided for by national law, severance pay on termination of employment relationships.
The claims taken over by the guarantee institution shall be the outstanding pay claims relating to a period prior to and/or, as applicable, after a given date determined by the Member States.’
Article 4 of the directive is worded as follows:
‘1.      Member States shall have the option to limit the liability of the guarantee institutions referred to in Article 3.
2.      If Member States exercise the option referred to in paragraph 1, they shall specify the length of the period for which outstanding claims are to be met by the guarantee institution. However, this may not be shorter than a period covering the remuneration of the last three months of the employment relationship prior to and/or after the date referred to in the second paragraph of Article 3.
Member States may include this minimum period of three months in a reference period with a duration of not less than six months.
Member States having a reference period of not less than 18 months may limit the period for which outstanding claims are met by the guarantee institution to eight weeks. In this case, those periods which are most favourable to the employee shall be used for the calculation of the minimum period.
3.      Member States may set ceilings on the payments made by the guarantee institution. These ceilings must not fall below a level which is socially compatible with the social objective of this Directive.
If Member States exercise this option, they shall inform the [European] Commission of the methods used to set the ceiling.’
Chapter V of Directive 2008/94, entitled ‘General and final provisions’, comprises Articles 11 to 18.
Article 12 of that directive provides:
‘This Directive shall not affect the option of Member States:
(a)      to take the measures necessary to avoid abuses;
…’

Romanian law
Article 2 of Legea nr. 200/2006 privind constituirea și utilizarea Fondului de garantare pentru plata creanțelor salariale (Law No 200/2006 on the establishment and use of the Guarantee Fund for the Payment of Salary Claims) (
Monitorul Oficial al României
, Part I, No 453 of 25 May 2006), provides:
‘The Guarantee Fund shall serve to cover the payment of salary claims arising from individual and collective contracts of employment between employees and employers against which a final court decision to open insolvency proceedings has been made and against which the total or partial revocation of the power of administration has been ordered, [“employers in a state of insolvency” or “insolvent employers”].’
Article 13(1)(a) of that law provides:
‘Within the limits and under the conditions laid down in this chapter, the Guarantee Fund’s resources are to cover the following categories of salary claims: outstanding remuneration …’
Article 14(1) of Law No 200/2006 provides:
‘The total sum of salary claims covered by the Guarantee Fund must not exceed the amount of [three] national average gross wages per employee.’
Article 15 of that law provides:
‘(1)      Salary claims referred to in Article 13(1)(a), (c), (d) and (e) shall be borne for a period of [three] calendar months.
(2)      The period referred to in paragraph 1 is the period preceding the date on which entitlement is claimed and preceding or following the date on which insolvency proceedings are opened.’
Article 5(1) of the Normele metodologice de aplicare a Legii nr. 200/2006 privind constituirea și utilizarea Fondului de garantare pentru plata creanțelor salariale (Methodological rules for the application of Law No 200/2006), of 21 December 2006 (
Monitorul Oficial al României
, Part I, No 1038 of 28 December 2006; ‘the Methodological Rules’), provides:
‘The salary claims referred to in Article 13(1)(a), (c), (d) and (e) of Law [No 200/2006] must relate to the period of [three] calendar months referred to in Article 15(1) of [that] law, the period that precedes the month during which entitlement is claimed.’
Article 7(1) and (2) of the Methodological Rules provides:
‘(1)      Where the claims of the employee of the employer in a state of insolvency predate the month in which the insolvency proceedings are opened, the period of [three] calendar months referred to in Article 15(1) of Law [No 200/2006] shall precede the date on which the insolvency proceedings are opened.
(2)      Where the claims of the employee of the employer in a state of insolvency date from after the month in which the insolvency proceedings are opened, the period referred to in Article 15(1) of [that] law shall follow the date on which the insolvency proceedings are opened.’
According to Article 47(1) of Legea nr. 76/2002 privind sistemul asigurărilor pentru șomaj și stimularea ocupării forței de muncă (Law No 76/2002 concerning the unemployment insurance and job creation scheme) (
Monitorul Oficial al României
, Part I, No 103 of 6 February 2002):
‘Sums unduly paid out of the unemployment insurance budget and any other amount debited to the unemployment insurance budget other than one derived from unemployment insurance contributions shall be recovered on the basis of decisions issued by … employment agencies, which shall be enforceable.’
Article 73
of Legea nr. 500/2002 privind finanțele publice (Law No 500/2002 on Public Finance)
(Monitorul Oficial al României
, Part I, No 597, of 13 August 2002), as amended by Law No 270/2013, provides:
‘The recovery of sums which represent losses to or unlawful payments from public funds, established by the competent supervisory bodies, shall include the charging of interest and late-payment penalties or surcharges, as appropriate, applicable to budget receipts, calculated in respect of the period from the time the loss or payment was made until the recovery of those sums.’

The disputes in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
On 13 March 2017, the Ilfov Agency accepted the request by a court-appointed liquidator that the amount of outstanding salary claims in respect of the months of May, June and July 2013, of employees whose employer had been declared insolvent, should be established and paid by the Guarantee Fund. In that respect, IG’s salary claim was fixed at 1 308 Romanian lei (RON) (approximately EUR 264) and paid to the individual concerned (Case C‑524/21).
On 14 March 2018, the Bucharest Agency accepted the request by a court-appointed liquidator that the amount of outstanding salary claims in respect of an insolvent employer should be established and paid by the Guarantee Fund. Consequently, IM’s salary claim was fixed at RON 3 143 (approximately EUR 634) and paid to the individual concerned (Case C‑525/21).
Following a decision of the Curtea de Conturi a României (Court of Auditors, Romania) of 6 August 2019, the Agenția Națională pentru Ocuparea Forței de Muncă (National Employment Agency, Romania) was ordered to apply measures to recover (i) payments unduly made by the Guarantee Fund in respect of the outstanding remuneration owed by certain insolvent employers, relating to periods not included in the three months immediately preceding or following the opening of the insolvency proceedings against those employers,  laid down in Article 15(1) and (2) of Law No 200/2006 (as in the meantime interpreted by the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) in a judgment of 5 March 2018) or (ii) payments which were claimed outside the general limitation period. By order of 2 September 2019 of the President of the National Employment Agency, the district and municipal employment agencies of Romania were instructed to determine the extent of the loss suffered by the Guarantee Fund and to proceed with the resulting recovery.
By decision of 6 December 2019, adopted in implementation of the order of 2 September 2019, the Executive Director of the Bucharest Agency ordered the recovery of the salary claim unduly  paid to IM (Case C‑525/21) for the months of October and November 2017, since those months fell outside the reference period of the three months immediately preceding or following the date on which the insolvency proceedings in respect of IM’s employer had been opened, namely 22 January 2015.
By decision of 31 December 2019, the Executive Director of the Ilfov Agency ordered the recovery of the salary claim unduly  paid to IG (Case C‑524/21) for the months of May, June and July 2013, together with interest and late-payment penalties, on the ground that the request for IG’s salary claims to be taken over had been submitted by the court-appointed liquidator on 8 February 2017, although the insolvency proceedings had been opened on 19 March 2010.  Accordingly, the salary claim at issue was outside the reference period of the three months immediately preceding or following the date on which the insolvency proceedings in respect of IG’s employer had been opened.
IM and IG  each brought an action, the first against the decision of the Executive Director of the Bucharest Agency of 6 December 2019, and the second against the decision of the Executive Director of the Ilfov Agency of 31 December 2019, before the Tribunalul București (Regional Court, Bucharest, Romania).
By judgment of 25 May 2020, the Tribunalul București (Regional Court, Bucharest) dismissed IG’s action as unfounded. By judgment of 14 July 2020, it upheld IM’s action.
IG and the Bucharest Agency each brought an appeal against those respective judgments before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania), which is the referring court.
That court considers that, in the cases in the main proceedings, the question arises as to whether an administrative practice of interpreting the national legislation in a way that calls into question salary claims previously paid to employees of insolvent employers is consistent with the social objective of Directive 2008/94. That administrative practice originates in the decision of the Curtea de Conturi a României (Court of Auditors, Romania), adopted following the interpretation of that legislation provided by the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), a decision and interpretation referred to in paragraph 21 above.
The referring court considers that the administrative practice in question has created a disadvantageous legal situation for those employees in undermining the certainty and security of legal relationships by calling into question salary claims already paid to them, and in providing, without an appropriate national legal basis, for an obligation to reimburse the sums received in that respect, together with interest and late-payment penalties as the case may be.
In addition, that court asks whether the national legislation at issue in the cases pending before it – which provides for the recovery from the employee of the sums paid outside the limitation period by the Guarantee Fund, in respect of the outstanding claims of an insolvent employer’s employees – may be recognised as having been adopted ‘to avoid abuses’, within the meaning of Article 12(a) of Directive 2008/94, inasmuch as the payment of salary claims to the employee was made pursuant to a request by the employer’s court-appointed liquidator to the Guarantee Fund, in the absence of any action or omission attributable to the employee concerned.
In those circumstances the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling, which are drafted in identical terms in Cases C‑524/21 and C‑525/21:
‘(1)      Having regard to the autonomous concept of a “state of insolvency”, are Articles 1(1) and 2(1) of Directive 2008/94 to be interpreted as precluding national legislation transposing [that] directive – Article 15(1) and (2) of [Law No 200/2006 on the establishment and use of the Guarantee Fund for the Payment of Salary Claims], in conjunction with Article 7 of the [Methodological Rules] as interpreted by the Înalta Curte de Casație și Justiție [(High Court of Cassation and Justice)],  according to which the period of three months for which the Guarantee Fund may take over and pay the salary debts of an insolvent employer refers exclusively to the date on which the insolvency proceedings are opened?
(2)      Are [the second paragraph of] Article 3 and Article 4(2) of Directive 2008/94 to be interpreted as precluding Article 15(1) and (2) of Law No 200/2006 on the establishment and use of the Guarantee Fund for the Payment of Salary Claims, as interpreted by the [Înalta Curte de Casație și Justiție (High Court of Cassation and Justice)], according to which the maximum period of three months for which the Guarantee Fund may take over and pay the salary debts of an insolvent employer falls within the reference period spanning the three months immediately preceding the opening of the insolvency proceedings and the three months immediately after the opening of the insolvency proceedings?
(3)      Is it consistent with the social objective of Directive 2008/94 and with Article 12(a) thereof for a national administrative practice to rely on a decision of the Curtea de Conturi a României (Court of Auditors, Romania) and, in the absence of any specific national rules requiring restitution by the employee, to recover from the employee sums allegedly paid in respect of periods not covered by the legislation or which were claimed after expiry of the limitation period?
(4)      In the interpretation of the concept of “abuse” in Article 12(a) of Directive 2008/94, does the act of recovering from the employee, with the stated aim of complying with the general limitation period, salary entitlements paid by the [Guarantee Fund] through the intermediary of the liquidator constitute a sufficient, objective justification?
(5)      Are an interpretation and a national administrative practice whereby salary debts which an employee is required to repay are treated like tax debts, bearing interest and late-payment penalties, consistent with the provisions and objective of [Directive 2008/94]?’
By decision of the President of the Court of 22 October 2021, Cases C‑524/21 and C‑525/21 were joined for the purposes of the written and oral phases of the proceedings and of the judgment.

Consideration of the questions referred

The first and second questions
By its first and second questions, which it is appropriate to examine together, the referring court seeks to ascertain, in essence, whether Article 1(1), Article 2(1) and the second paragraph of Article 3 of Directive 2008/94, in conjunction with Article 4(2) thereof, must be interpreted as precluding national legislation which provides that the reference date for determining the period for which employees’ outstanding salary claims are to be met by a guarantee institution is the date on which insolvency proceedings in respect of their employer are opened and which limits that payment to a period of three months falling within a reference period comprising the three months immediately preceding and the three months immediately following that date of opening.
It should be borne in mind that under Article 1(1) of Directive 2008/94, that directive is to apply to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1) of that directive.
Article 2(1) of Directive 2008/94 provides that an employer must be deemed to be in a state of insolvency where a request has been made for the opening of collective proceedings based on insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a Member State, and involving the partial or total divestment of the employer’s assets and the appointment of a liquidator or a person performing a similar task, and that the authority which is competent pursuant to the provisions referred to has  either decided to open the proceedings or established that the employer’s undertaking or business has been definitively closed down and that the available assets are insufficient to warrant the opening of the proceedings.
In accordance with the first paragraph of Article 3 of Directive 2008/94, Member States must take the measures necessary to ensure that guarantee institutions guarantee, subject to Article 4 of that directive, payment of employees’ outstanding claims resulting from contracts of employment or employment relationships, including, where provided for by national law, severance pay on termination of employment relationships.
In that regard, under the second paragraph of Article 3 of Directive 2008/94, the claims taken over by the guarantee institution are to be the outstanding pay claims relating to a period prior to and/or, as applicable, after a given date determined by the Member States.
The Court has held that the second paragraph of Article 3 of Directive 2008/94 allows Member States to determine the date prior to which and/or, as applicable, after which falls the period during which the outstanding pay claims are to be taken over by the guarantee institutions, and allows the Member States the freedom to determine an appropriate date (see, to that effect, judgment of 18 April 2013,
Mustafa
, C‑247/12, EU:C:2013:256, paragraphs 39 and 41).
There is, therefore, nothing to prevent the date on which the insolvency proceedings against an employer are opened from being used by a Member State as the reference date for a guarantee institution to determine the period for which the outstanding salary claims of that employer’s employees are to be met.
Moreover, since it has been established that there are employment relationships and outstanding claims of employees, in the cases in the main proceedings, the referring court seeks to ascertain the temporal scope of a guarantee institution’s obligation to pay those claims.
As the Court has held, Directive 2008/94 confers on the Member States the power to limit the payment obligation by fixing a reference period or a guarantee period and/or setting ceilings on payments (judgment of 25 July 2018,
Guigo
, C‑338/17, EU:C:2018:605, paragraph 30 and the case-law cited).
In that regard, Article 4(1) of that directive provides, indeed, that Member States  have the option to limit the liability of the guarantee institutions referred to in Article 3 thereof. Under the first subparagraph of Article 4(2) of that directive, if Member States exercise the option referred to in Article 4(1), they must specify the length of the period for which outstanding claims are to be met by the guarantee institution. However, that may not be shorter than a period covering the remuneration of the last three months of the employment relationship prior to and/or after the date referred to in the second paragraph of Article 3. The second subparagraph of Article 4(2) of Directive 2008/94 also gives Member States the option to include that minimum period of three months in a reference period with a duration of not less than six months.
In the present case, it is apparent from the explanations provided by the referring court and the written observations submitted by the Romanian Government that Article 15(1) and (2) of Law No 200/2006 must be understood as providing for a maximum period of three months in respect of which outstanding salary claims may be taken over, with that period falling within a reference period spanning the three months immediately preceding the opening of the insolvency proceedings and the three months immediately following the opening of those proceedings.
Such national legislation, which thereby limits the payment of employees’ outstanding salary claims by a guarantee institution to a maximum of three months immediately preceding the opening of collective proceedings based on the employer’s insolvency or three months immediately following the opening of those proceedings meets the requirements laid down, in particular, in Article 4(2) of Directive 2008/94. Such legislation complies with the minimum length of three months laid down, under that provision, in respect of  the period for which outstanding claims may be met by the guarantee institution, while placing that period within a reference period satisfying the minimum duration of six months imposed by that same provision.
In the light of all the foregoing considerations, the answer to the first and second questions is that:
–        Article 1(1) and Article 2(1) of Directive 2008/94 must be interpreted as not precluding national legislation which provides that the reference date for determining the period for which employees’ outstanding salary claims are to be met by a guarantee institution is the date on which the collective proceedings based on their employer’s insolvency are opened; and
–        the second paragraph of Article 3 and Article 4(2) of Directive 2008/94 must be interpreted as not precluding national legislation which limits the payment of employees’ outstanding salary claims by a guarantee institution to a period of three months falling within a reference period comprising the three months immediately preceding, and the three months immediately following, the date on which the collective insolvency proceedings based on the employer’s insolvency are opened.

The fourth question
By its fourth question, the referring court asks, in essence, whether Article 12(a) of Directive 2008/94 must be interpreted as meaning that rules adopted by a Member State which provide for the recovery by a guarantee institution, from an employee, of the sums paid to such an employee outside the general limitation period, in respect of outstanding salary claims of employees,  may constitute measures necessary to avoid abuses within the meaning of that provision.
In that regard, it must be recalled that, pursuant to Article 12(a) of Directive 2008/94, that directive is not to affect the option of Member States to take the measures necessary to avoid abuses.
As a preliminary point, although the referring court has not specified either the duration or the legal basis, in national law, of the general limitation period referred to in the fourth question referred for a preliminary ruling, nor explained how that period could have been disregarded in the circumstances of the disputes in the main proceedings, it may nonetheless be assumed that that court refers to the possibility that, under such a period, the right to payment of the salary claims of the person concerned  at issue in Case C‑524/21 may be time-barred; such time-barring would occur irrespective of whether that period is the five-year period suggested by the Commission in its written observations and contained in the Romanian Tax Procedure Code, or the three-year period mentioned by the Romanian Government in its written observations and provided for in the Civil Code. Indeed, in Case C‑524/21, the insolvency proceedings in respect of the employer concerned were opened on 19 March 2010, whereas the request for payment of salary claims was lodged on 8 February 2017, that is,  almost seven years after the date on which the insolvency proceedings were opened.
That said, in the present case, as is apparent from the orders for reference, under the national legislation it is the court-appointed liquidator of the insolvent employer – and not the person with a salary claim, namely the employee concerned – which submits a request to an employment agency for payment of that employee’s outstanding salary claims, to be disbursed by the Guarantee Fund. In those circumstances, where it appears to be excluded that that employee has acted in bad faith or that he or she may be held liable for the steps taken outside the statutory framework by the court-appointed liquidator with a view to recovering the salary claims, the recovery, provided for by that legislation, of the sums which, under that same legislation, would have been unduly paid in that respect cannot have the effect of avoiding an abuse on the part of the employee.
Furthermore, the referring court has not provided, in the orders for reference, other information, in particular concerning actions or omissions of the employees concerned, capable of clarifying how the receipt by those employees of payments from the Guarantee Fund in respect of outstanding salary claims,  and to which payments  they would not ultimately be entitled in that their right to them would be time-barred, could, in the present case, reveal any abuse on the part of those same employees.
In the light of the foregoing, the answer to the fourth question is that Article 12(a) of Directive 2008/94 must be interpreted as meaning that rules adopted by a Member State which provide for the recovery from an employee, by a guarantee institution, of the sums paid to such an employee outside the general limitation period, in respect of outstanding salary claims, in the absence of any action or omission attributable to the employee concerned cannot constitute measures necessary to avoid abuses within the meaning of that provision.

The third and fifth questions
By its third and fifth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Directive 2008/94 must be interpreted as precluding the application of tax legislation of a Member State for the purposes of recovering, together with interest and late-payment penalties, from employees, sums unduly paid by a guarantee institution in respect of employees’ outstanding salary claims for periods not included in that laid down by the national legislation of that State, referred to in the first and second questions, or claimed outside the general limitation period.
As regards the detailed rules for the recovery of sums which, under the applicable national legislation implementing Directive 2008/94, have been unduly paid by a guarantee institution, it should be noted at the outset that that directive does not contain any provision governing  the question of whether the Member States may provide for such recovery from employees nor detail any conditions, including procedural conditions, under which that recovery may be effected.
Indeed, Articles 4, 5 and 12 of Directive 2008/94, which permit the Member States not only to set the detailed rules regarding the organisation, financing and operation of the guarantee institution, but also to limit, in certain circumstances, the protection which it is designed to provide to employees,  do not provide for any limitation of the possibility for Member States of recovering sums which, according to the applicable national legislation implementing Directive 2008/94, have been unduly paid (see, by analogy, judgment of 16 July 2009,
Visciano
, C‑69/08, EU:C:2009:468, paragraph 38).
In those circumstances, the Member States are in principle free to lay down in their national law detailed rules, in particular procedural rules, in that regard, provided, however, that those provisions are not less favourable than those governing similar domestic applications (principle of equivalence) and are not framed in such a way as to render impossible in practice or excessively difficult the exercise of rights conferred by Directive 2008/94 (principle of effectiveness) (see, to that effect, judgments of 18 September 2003,
Pflücke
, C‑125/01, EU:C:2003:477, paragraph 34, and of 16 July 2009,
Visciano
, C‑69/08, EU:C:2009:468, paragraph 39).
Although the third and fifth questions concern the conditions for recovering from employees the sums paid in respect employees’ outstanding salary claims by a guarantee institution, and not the exercise as such by employees of their right to the benefits provided for by Directive 2008/94, the fact remains that those conditions for recovery may interfere with such an actual exercise and have an impact on the extent of that right. Consequently, the requirements flowing from the principles of equivalence and effectiveness, referred to in the preceding paragraph, must indeed be applied in the cases in the main proceedings.
In that respect, as regards, in the first place, the principle of equivalence, as follows from the case-law referred to in paragraph 54 above, that principle precludes a Member State from laying down detailed rules, in particular procedural rules, which are less favourable in respect of measures for recovering benefits whose grant is governed or regulated by EU law, than the detailed rules applicable to measures for recovering benefits of a similar nature whose grant is governed or regulated by national law alone.
In the present case, it should be noted that, as is apparent from the orders for reference, the recovery at issue in the cases in the main proceedings is carried out on the basis of the national provisions relating to the recovery of tax debts, and those provisions are applied in the present case by analogy.
Since the rights guaranteed by Directive 2008/94 – the social objective of which is to guarantee employees a minimum of protection at EU level in the event of the employer’s insolvency (see, to that effect, judgment of 25 July 2018,
Guigo
, C‑338/17, EU:C:2018:605, paragraph 28) – fall within the scope of the law on social protection for workers, it is for the referring court to examine whether the conditions for recovery applied in the cases in the main proceedings are not less favourable to employees than the conditions for recovery of other similar benefits payable under the national provisions in that field.
For the purposes of that comparison, the referring court must take into account whether employees objecting to the recovery of the sums paid to them under Directive 2008/94 are not placed at a disadvantage compared with employees involved in a procedure for the recovery of sums of a similar nature  granted under national law. As the Advocate General observed, in essence, in point 59 of his Opinion, to that end, the possibility of recovering sums paid though not due, the good faith of the person who has allegedly received a sum unduly and the starting point for the charging of interest for late payment may be taken into account among other factors.
As regards, in the second place, the principle of effectiveness, it must be borne in mind that the setting of reasonable limitation periods satisfies, in principle, that requirement of effectiveness, in that it constitutes an application of the principle of legal certainty (see, to that effect, judgments of 18 September 2003,
Pflücke
, C‑125/01, EU:C:2003:477, paragraph 36, and of 16 July 2009,
Visciano
, C‑69/08, EU:C:2009:468, paragraph 43).
In the present case, it must be noted that, as the Advocate General observed in essence in point 63 of his Opinion, the application of national legislation on the recovery from employees of the sums unduly paid by a guarantee institution in respect of their outstanding salary claims cannot make it impossible or excessively difficult for those employees to exercise their right to claim payment from the guarantee institution of sums due in respect of outstanding salaries.
In particular, the detailed rules governing the recovery procedure in question cannot, therefore, give rise to a situation in which rights of employees to the payment of salary claims actually due to them would for their part be time-barred.
In that regard, it should be noted that the disputes in the main proceedings appear to be characterised by the fact that the validity of the requests for payment of the outstanding salary claims of the employees concerned is primarily disputed on the ground that those claims do not fall within the reference period laid down by the national legislation pursuant to Article 4(2) of Directive 2008/94.
Thus, it cannot be excluded that those employees would have been entitled to payment  of their salary claims by the guarantee institution, up to the same amount, corresponding to a period within that reference period, if those claims had in fact remained unpaid, and that such payment would have been granted to them if the liquidator had, in the request which the latter submitted to that effect, correctly identified those periods, whereas the submission of such a request might no longer be possible, legally or in practice, at the time when the employees become aware of the recovery decision, in particular because the general limitation period may have expired.
In such a situation, although the Court has recognised, in that matter, that the setting of reasonable limitation periods is compatible with EU law and that the general limitation period provided for in Romanian law, as set out in paragraph 47 above, appears in principle to be reasonable, the employees would nonetheless ultimately be unable to exercise the rights conferred on them by Directive 2008/94, a situation which would be contrary to the principle of effectiveness, which is, however, a matter for the referring court to determine.
As regards the obligation for employees to bear interest and late-payment penalties, laid down by the national legislation at issue, it should be noted that, as the Advocate General in essence observed in point 64 of his Opinion, the principle of effectiveness requires that any payment of that interest and late-payment penalties must not in any way affect the protection granted to employees by Directive 2008/94, in particular by not undermining, in the situation referred to in paragraph 64 above, the minimum level of protection provided for in accordance with Article 4(2) of that directive.
Indeed, if it is established that the employees would have been entitled, had a correct request been submitted, to payment  of essentially the same amount as that actually paid to them following the incorrect request submitted by the liquidator, and whereas any preclusion of the possibility of still submitting a correct request is contrary to the principle of effectiveness, those employees must indeed be able to benefit in full from the right to payment of their outstanding salary claims within the limits laid down in Article 3 and Article 4(2) of Directive 2008/94 and, as the case may be, national law.
Consequently, in the cases in the main proceedings, the recovery of the amount already paid, together with interest and late-payment penalties, would necessarily have the result of undermining the rights available to the employees concerned under Articles 3 and 4 of Directive 2008/94 by ultimately reducing the overall amount due to them in respect of their outstanding salary claims below the minimum limits laid down therein.
In the light of all the foregoing considerations, the answer to the third and fifth questions is that Directive 2008/94, read in the light of the principles of equivalence and effectiveness, must be interpreted as precluding the application of tax legislation of a Member State for the purposes of recovering, together with interest and late-payment penalties, from employees, sums unduly paid by a guarantee institution in respect of employees’ outstanding salary claims for periods not included in the reference period laid down in the legislation of that State, referred to in the first and second questions, or claimed outside the general limitation period, where:
–        the conditions for recovery laid down by that national legislation are less favourable to employees than the conditions for recovering benefits payable under the national provisions falling within the scope of the law on social protection; or
–        the application of the national legislation at issue makes it impossible or excessively difficult for the employees concerned to claim payment of sums due in respect of outstanding salary claims from the guarantee institution, or the payment of interest and late-payment penalties, provided for by that national legislation, affects the protection granted to employees both by Directive 2008/94 and by the national provisions implementing that directive, in particular by undermining the minimum level of protection provided for in accordance with Article 4(2) of that directive.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Second Chamber) hereby rules:
1.
Article 1(1) and Article 2(1) of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer
must be interpreted as not precluding national legislation which provides that the reference date for determining the period for which employees’ outstanding salary claims are to be met by a guarantee institution is the date on which the collective proceedings based on their employer’s insolvency are opened.
2.
The second paragraph of Article 3 and Article 4(2) of Directive 2008/94
must be interpreted as not precluding national legislation which limits the payment of employees’ outstanding salary claims by a guarantee institution to a period of three months falling within a reference period comprising the three months immediately preceding, and the three months immediately following, the date on which the collective insolvency proceedings based on the employer’s insolvency are opened.
3.
Article 12(a) of Directive 2008/94
must be interpreted as meaning that rules adopted by a Member State which provide for the recovery from an employee, by a guarantee institution, of the sums paid to such an employee outside the general limitation period, in respect of outstanding salary claims, in the absence of any action or omission attributable to the employee concerned cannot constitute measures necessary to avoid abuses within the meaning of that provision.
4.
Directive 2008/94, read in the light of the principles of equivalence and effectiveness,
must be interpreted as precluding the application of tax legislation of a Member State for the purposes of recovering, together with interest and late-payment penalties, from employees, sums unduly paid by a guarantee institution in respect of employees’ outstanding salary claims for periods not included in the reference period laid down in the legislation of that State, referred to in the first and second questions, or claimed outside the general limitation period, where:
–
the conditions for recovery laid down by that national legislation are less favourable to employees than the conditions for recovering benefits payable under the national provisions falling within the scope of the law on social protection; or
–
the application of the national legislation at issue makes it impossible or excessively difficult for the employees concerned to claim payment of sums due in respect of outstanding salary claims from the guarantee institution, or the payment of interest and late-payment penalties, provided for by that national legislation, affects the protection granted to employees both by Directive 2008/94 and by the national provisions implementing that directive, in particular by undermining the minimum level of protection provided for in accordance with Article 4(2) of that directive.
[Signatures]
*
Language of the case: Romanian.