# C_2009220EN.01000901.xml

| 12.9.2009 | EN | Official Journal of the European Union | C 220/9 |
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12.9.2009

EN

Official Journal of the European Union

C 220/9

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Judgment of the Court (Second Chamber) of 16 July 2009 (reference for a preliminary ruling from the Tribunale di Napoli — Sezione Lavoro (Italy)) — Raffaello Visciano v Istituto nazionale della previdenza sociale (INPS)

(Case C-69/08) (1)

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(Social policy - Protection of workers - Insolvency of employer - Directive 80/987/EEC - Obligation to pay all outstanding claims up to a pre-established ceiling - Nature of an employee’s claims against a guarantee institution - Limitation period)

2009/C 220/13

Language of the case: Italian

Referring court

Referring court

Tribunale di Napoli — Sezione Lavoro

Parties to the main proceedings

Parties to the main proceedings

Applicant: Raffaello Visciano

Applicant:

Defendant: Istituto nazionale della previdenza sociale (INPS)

Defendant:

Re:

Re:

Reference for a preliminary ruling — Tribunale di Napoli Sezione Lavoro –Interpretation of Articles 3 and 4 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) — Guarantee corresponding to the last three months’ salary under the employment contract, subject to a maximum amount fixed in advance — Deduction from the compensation paid of advances on salary received from the employer — National legislation permitting the same benefit to be given a different legal classification according to the party required to pay that benefit and also permitting a change in the limitation period for bringing an action

Operative part of the judgment

Operative part of the judgment

| 1. | Articles 3 and 4 of 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 do not preclude national legislation which allows employees’ outstanding claims to be classified as ‘social security benefits’ where they are paid by a guarantee institution. |
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1.

Articles 3 and 4 of 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 do not preclude national legislation which allows employees’ outstanding claims to be classified as ‘social security benefits’ where they are paid by a guarantee institution.

| 2. | Directive 80/987 does not preclude national legislation which uses the employee’s initial claim relating to pay merely as a basis of comparison for the determination of the benefit to be guaranteed by the intervention of a guarantee fund. |
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2.

Directive 80/987 does not preclude national legislation which uses the employee’s initial claim relating to pay merely as a basis of comparison for the determination of the benefit to be guaranteed by the intervention of a guarantee fund.

| 3. | In the context of an application by an employee for payment by a guarantee fund of outstanding claims relating to pay, Directive 80/987 does not preclude the application of a limitation period of one year (principle of equivalence). However, it is for the national court to examine whether it is framed in such a way as to render impossible in practice or excessively difficult the exercise of the rights recognised by Community law (principle of effectiveness). |
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3.

In the context of an application by an employee for payment by a guarantee fund of outstanding claims relating to pay, Directive 80/987 does not preclude the application of a limitation period of one year (principle of equivalence). However, it is for the national court to examine whether it is framed in such a way as to render impossible in practice or excessively difficult the exercise of the rights recognised by Community law (principle of effectiveness).

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(1)  OJ C 107, 26.4.2008.

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