# C_2005045EN.01000902.xml

| 19.2.2005 | EN | Official Journal of the European Union | C 45/9 |
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19.2.2005

EN

Official Journal of the European Union

C 45/9

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 16 December 2004

in Case 520/03 (reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana): José Vicente Olaso Valero v Fondo de Garantía Salarial (Fogasa) (1)

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(Social policy - Protection of workers in the event of the insolvency of their employer - Directive 80/987/EEC - Scope - Definition of ‘claims’ - Definition of ‘pay’ - Compensation payable in the event of unfair dismissal)

(2005/C 45/18)

Language of the case: German

In Case C-520/03: reference for a preliminary ruling under Article 234 EC from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain), made by decision of 27 November 2003, received at the Court on 15 December 2003, in the proceedings between José Vicente Olaso Valero and Fondo de Garantía Salarial (Fogasa) – the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, N. Colneric (Rapporteur), K. Schiemann and E. Juhász, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 16 December 2004, in which it has ruled that:

José Vicente Olaso Valero

Fondo de Garantía Salarial (Fogasa)

| 1. | It falls to the national court to determine whether the word ‘pay’, as defined by national law, includes compensation for unfair dismissal. If it does, such compensation falls within the ambit 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 it stood before it was amended by Directive 2002/74/EC of the European Parliament and the Council of 23 September 2002 amending Directive 80/987. |
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1.

It falls to the national court to determine whether the word ‘pay’, as defined by national law, includes compensation for unfair dismissal. If it does, such compensation falls within the ambit 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 it stood before it was amended by Directive 2002/74/EC of the European Parliament and the Council of 23 September 2002 amending Directive 80/987.

| 2. | Where, according to the national legislation in question, claims corresponding to compensation for unfair dismissal, awarded by judgment or administrative decision, fall within the definition of ‘pay’, identical claims, established in a conciliation procedure such as that in question in the circumstances of this case, must be regarded as employees' claims arising from contracts of employment or employment relationships and as relating to pay for the purposes of Directive 80/987. The national court must set aside domestic legislation which, in breach of the principle of equality, excludes the latter claims from the definition of ‘pay’ under that legislation. |
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2.

Where, according to the national legislation in question, claims corresponding to compensation for unfair dismissal, awarded by judgment or administrative decision, fall within the definition of ‘pay’, identical claims, established in a conciliation procedure such as that in question in the circumstances of this case, must be regarded as employees' claims arising from contracts of employment or employment relationships and as relating to pay for the purposes of Directive 80/987. The national court must set aside domestic legislation which, in breach of the principle of equality, excludes the latter claims from the definition of ‘pay’ under that legislation.

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(1)  OJ C 59 of 06.03.2004.

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