# C_2013189EN.01000502.xml

| 29.6.2013 | EN | Official Journal of the European Union | C 189/5 |
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29.6.2013

EN

Official Journal of the European Union

C 189/5

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Request for a preliminary ruling from the Juzgado de lo Social 1 de Benidorm (Spain) lodged on 16 April 2013 — Victor Manuel Julián Hernández and Others v Puntal Arquitectura S.L. and Others

(Case C-198/13)

2013/C 189/10

Language of the case: Spanish

Referring court

Referring court

Juzgado de lo Social de Benidorm

Parties to the main proceedings

Parties to the main proceedings

Applicants: Victor Manuel Julián Hernández, Chems Eddine Adel, Jaime Morales Ciudad, Bartolomé Madrid Madrid, Martín Selles Orozco, Alberto Martí Juan and Said Debbaj

Applicants:

Defendants: Puntal Arquitectura S.L., Obras Alteramar, S.L., Altea Diseño y Proyectos, S.L., Ángel Muñoz Sánchez, Vicente Orozco Miro and Subdelegación del Gobierno de España en Alicante

Defendants:

Questions referred

Questions referred

| 1. | Do the rules contained in Article 57 of the Workers’ Statute in conjunction with Article 116(2) of the Recast Text of the Law on Employment Procedure, which provide for the practice operated by the Kingdom of Spain of paying directly to workers, in the event of the insolvency of their employer, ‘salarios de tramitación’ falling due beyond the 60th (now the 90th) working day after the date on which the action for unfair dismissal was brought before the competent court, fall within the scope of Directive 2008/94/EC (1) 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, in particular Articles 1(1), 2(3), 2(4), 3, 5 and 11 thereof? |
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1.

Do the rules contained in Article 57 of the Workers’ Statute in conjunction with Article 116(2) of the Recast Text of the Law on Employment Procedure, which provide for the practice operated by the Kingdom of Spain of paying directly to workers, in the event of the insolvency of their employer, ‘salarios de tramitación’ falling due beyond the 60th (now the 90th) working day after the date on which the action for unfair dismissal was brought before the competent court, fall within the scope of Directive 2008/94/EC (1) 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, in particular Articles 1(1), 2(3), 2(4), 3, 5 and 11 thereof?

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| 2. | If the reply is in the affirmative, would the practice operated by the Kingdom of Spain of paying directly to workers, in the event of the insolvency of their employer, ‘salarios de tramitación’ falling due beyond the 60th (now the 90th) working day after the date on which the action for unfair dismissal was brought, but of doing so only in the case of dismissals which have been declared by a court to be unfair and not in the case of dismissals which have been declared by a court to be null and void, be regarded as being contrary to Article 20 of the Charter of Fundamental Rights of the European Union (2) and, in any event, the general principle of equality and non-discrimination under European Union law? |
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2.

If the reply is in the affirmative, would the practice operated by the Kingdom of Spain of paying directly to workers, in the event of the insolvency of their employer, ‘salarios de tramitación’ falling due beyond the 60th (now the 90th) working day after the date on which the action for unfair dismissal was brought, but of doing so only in the case of dismissals which have been declared by a court to be unfair and not in the case of dismissals which have been declared by a court to be null and void, be regarded as being contrary to Article 20 of the Charter of Fundamental Rights of the European Union (2) and, in any event, the general principle of equality and non-discrimination under European Union law?

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| 3. | In connection with the foregoing question, may a court such as the referring court refrain from applying a provision which permits the Kingdom of Spain to pay directly to workers, in the event of the insolvency of their employer, ‘salarios de tramitación’ falling due beyond the 60th (now the 90th) working day after the date on which the action for unfair dismissal was brought, but only in the case of dismissals which have been declared by a court to be unfair and not in the case of dismissals which have been declared by a court to be null and void, in circumstances where there do not appear to be any objective differences between the two types of dismissal within the context at issue (‘salarios de tramitación’)? |
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3.

In connection with the foregoing question, may a court such as the referring court refrain from applying a provision which permits the Kingdom of Spain to pay directly to workers, in the event of the insolvency of their employer, ‘salarios de tramitación’ falling due beyond the 60th (now the 90th) working day after the date on which the action for unfair dismissal was brought, but only in the case of dismissals which have been declared by a court to be unfair and not in the case of dismissals which have been declared by a court to be null and void, in circumstances where there do not appear to be any objective differences between the two types of dismissal within the context at issue (‘salarios de tramitación’)?

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(1)  OJ 2008 L 283, p. 36.

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(2)  OJ 2000 C 364, p. 1.

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