# C_2023127EN.01001001.xml

| 11.4.2023 | EN | Official Journal of the European Union | C 127/10 |
| --- | --- | --- | --- |

11.4.2023

EN

Official Journal of the European Union

C 127/10

---

Judgment of the Court (Second Chamber) of 16 February 2023 (requests for a preliminary ruling from the Curtea de Apel Bucureşti — Romania) — IG v Agenţia Judeţeană de Ocupare a Forţei de Muncă Ilfov (C-524/21), and Agenţia Municipală pentru Ocuparea Forţei de Muncă Bucureşti v IM (C-525/21)

(Joined Cases C-524/21 and C-525/21, (1) Agenţia Judeţeană de Ocupare a Forţei de Muncă Ilfov and Others)

(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)

(2023/C 127/11)

Language of the case: Romanian

Referring court

Curtea de Apel Bucureşti

Parties to the main proceedings

Applicants: IG (C-524/21), Agenţia Municipală pentru Ocuparea Forţei de Muncă Bucureşti (C-525/21)

Defendants: Agenţia Judeţeană de Ocupare a Forţei de Muncă Ilfov (C-524/21), IM (C-525/21)

Operative part of the judgment

| 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. |
| --- | --- |

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. |
| --- | --- |

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. |
| --- | --- |

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 |
| --- | --- | --- |

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. |
| --- | --- |

—

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.

---

(1)  OJ C 513, 20.12.2021.

---