# C_2006261EN.01000402.xml

| 28.10.2006 | EN | Official Journal of the European Union | C 261/4 |
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28.10.2006

EN

Official Journal of the European Union

C 261/4

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Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León — Spain) — Anacleto Cordero Alonso v Fondo de Garantía Salarial (Fogasa)

(Case C-81/05) (1)

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(Social policy - Protection of workers in the event of the insolvency of their employer - Directive 80/987/EEC - Amending Directive 2002/74/EC - Compensation for dismissal agreed during conciliation - Payment guaranteed by the guarantee institution - Payment subject to the adoption of a judicial decision)

(2006/C 261/07)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Castilla y León

Parties to the main proceedings

Applicant: Anacleto Cordero Alonso

Applicant:

Defendant: Fondo de Garantía Salarial (Fogasa)

Defendant:

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de Castilla y León — Interpretation of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23), amended by Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 (OJ 2002 L 270, p. 10) — Articles 1 and 3 — Application of Community law — Primacy — Protection of workers already conferred by national law — Time-limit for transposing the relevant directive not yet expired — Interpretation by the Court of Justice not the same as that by the Spanish Constitutional Court — Equal treatment

Operative part of the judgment

The Court:

| 1. | Where, before the entry into force of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 80/987/EEC, a Member State has already conferred on employees a statutory entitlement to protection by a guarantee institution in the event of an employer's insolvency with regard to compensation for termination of the contract of employment, the application of that legislation to cases where the employer's insolvency occurred after the entry into force of that directive falls within the scope of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74. |
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1.

Where, before the entry into force of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 80/987/EEC, a Member State has already conferred on employees a statutory entitlement to protection by a guarantee institution in the event of an employer's insolvency with regard to compensation for termination of the contract of employment, the application of that legislation to cases where the employer's insolvency occurred after the entry into force of that directive falls within the scope of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74.

| 2. | Within the scope of Directive 80/987, as amended, the general principle of equality, as recognised in the Community legal order, requires that when, under national rules such as those at issue in the main proceedings, statutory compensation payable on termination of an employment contract and fixed in a judgment is payable by a guarantee institution in the event of an employer's insolvency, compensation of the same nature, fixed in an agreement between the employee and the employer which was entered into under the supervision and with the approval of a court, must be treated in the same way. |
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2.

Within the scope of Directive 80/987, as amended, the general principle of equality, as recognised in the Community legal order, requires that when, under national rules such as those at issue in the main proceedings, statutory compensation payable on termination of an employment contract and fixed in a judgment is payable by a guarantee institution in the event of an employer's insolvency, compensation of the same nature, fixed in an agreement between the employee and the employer which was entered into under the supervision and with the approval of a court, must be treated in the same way.

| 3. | The national court must disapply a national rule which, in breach of the principle of equality as recognised in the Community legal order, precludes the payment by the competent guarantee institution of compensation on termination of a contract fixed in an agreement between the employee and the employer which was entered into under the supervision of and with the approval of a court. |
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3.

The national court must disapply a national rule which, in breach of the principle of equality as recognised in the Community legal order, precludes the payment by the competent guarantee institution of compensation on termination of a contract fixed in an agreement between the employee and the employer which was entered into under the supervision of and with the approval of a court.

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(1)  OJ C 93, 16.4.2005.

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