Opinion of the Advocate General — ECLI:EU:C:2019:392
Date: 2019-05-08
Language of the case: German
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, I propose to answer the third question in the affirmative, i.e., that Article 8 of Directive 2008/94 has direct effect so that, if a Member State has failed to transpose this directive into national law or has failed to transpose it correctly, that provision confers rights on the individual which can be asserted against the Member State before a national court. The fourth question 90. By its fourth question, the referring court asks when, in matters relating to occupational retirement provision, the Member State has designated — in a manner that is binding on employers — an institution organised under private law as an insolvency insurance institution for occupational pensions, and when this institution is subject to State supervision of financial services and, in addition, levies from employers, in accordance with public law, contributions required for insolvency insurance from employers against the risk of insolvency and, like an authority, can establish the conditions for enforcement by way of an administrative act, whether such institution should be considered as a public body of that Member State so that a provision of a directive may be directly invoked against it. 91. In this regard, it must be recalled that the Court has already held that any provision of a directive that is unconditional and sufficiently precise may be relied upon by individuals, not only against a Member State and all the organs of its administration, such as decentralised authorities, but also against institutions, organisations and bodies which are subject to the authority or control of the State or which possess special powers beyond those which result from the normal rules applicable to relations between individuals. (27) 92. Such institutions, organisations and bodies can be distinguished from individuals and must be treated as comparable to the Member State, either because they are legal persons governed by public law that are part of the State in the broad sense or because they have been required, by a public body, to perform a task in the public interest and have been given, for that purpose, such special powers. (28) 93. Given that, in its question, the referring court refers to a case where a Member State has designated — in a manner that is binding on employers — as an insolvency insurance institution for occupational pensions a certain institution and has granted to the latter the right to levy the contributions required for the insolvency insurance from employers under public law, such institution must be treated as comparable to this State even if it is organised under private law. 94. However, for an obligation arising from a directive to be directly enforceable against that institution, the tasks that they have been required to perform in the public interest must include, explicitly or implicitly, the implementation of that obligation. Indeed, the simple fact that an institution is given special powers by a Member State does not mean that this institution can be held liable for any obligation imposed on that Member State by EU law. 95. In its question, the national court refers to a situation in which a Member State has designated an institution as being in charge of guaranteeing the occupational pensions. However, the case file in conjunction with the information provided in the oral hearing seems to show that the tasks transferred by the German Government to the Pensions-Sicherungs-Verein VVaG concern only the situations where the occupational old-age pension is realised by the employer via a direct promise or a Direktversicherung (direct insurance) or by means of an Unterstützungskasse (an insurance institution that is legally independent of the employer) or a Pensionsfonds (retirement fund). (29) Thus, the case where the occupational old-age pension is realised by the employer via a ‘Pensionskasse’ (pension fund), here the PKDW, does not fall within the scope of any of these assignments. 96. In any case, it is for the national court to assess in view of the specific nature of the obligation invoked — i.e. the breach of the obligation to avoid any disproportionate loss mentioned in paragraph 35 of Webb-Sämann, (30) whether or not this obligation has been delegated by that Member State to that entity. (31) 97. Consequently, I propose that the answer to the fourth question be that when, in matters relating to occupational retirement provision, the Member State has designated — in a manner that is binding on employers — an institution organised under private law as an insolvency insurance institution for occupational pensions, and when this institution is subject to State supervision of financial services and, in addition, levies from employers, in accordance with public law, contributions required for insolvency insurance against the risk of insolvency and, like an authority, can establish the conditions for enforcement by way of an administrative act, such institution is to be considered a public body of that Member State. However, the failure to comply with the obligation provided for in Article 8 of Directive 2008/94 may be invoked against that institution only if the implementation of that obligation falls within the scope of the assignments delegated to it by that State, which is for the national court to determine. Conclusions 98. In the light of the foregoing considerations, I propose that the Court answer the questions asked by the Bundesarbeitsgericht (Federal Labour Court, Germany) as follows: 1) Article 8 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 is to be interpreted as covering the loss of a payment, such as the one at issue in the main proceedings, made by a former employer to offset, as required by national law, a reduction of an occupational old-age pension. 2) The circumstances to which the Court referred in paragraph 35 of the judgment of 24 November 2016, Webb-Sämann (C‑454/15, EU:C:2016:891), are those in which the claimant proves that the Member State has not fulfilled its obligation to ensure that the necessary measures were taken to protect the interests of employees or of persons having already left the employer’s undertaking and where the reduction in pension rights is at a level which is either not de minimis or which otherwise impairs the essence of the occupational pension entitlements which, but for the employer’s insolvency, the retiree had every reason to anticipate receiving. 3) Article 8 of Directive 2008/94 has direct effect so that, if a Member State has failed to transpose this directive into national law or has failed to transpose it correctly, that provision confers rights on the individual that he can assert against the Member State before a national court. 4) When, in matters relating to occupational retirement provision, the Member State has designated — in a manner that is binding on employers — an institution organised under private law as an insolvency insurance institution for occupational pensions, and when this institution is subject to State supervision of financial services and, in addition, levies from employers, in accordance with public law, contributions required for insolvency insurance against the risk of insolvency and, like an authority, can establish the conditions for enforcement by way of an administrative act, such institution is to be considered a public body of that Member State. However, the failure to comply with the obligation provided for in Article 8 of Directive 2008/94 may be invoked against that institution only if the implementation of that obligation falls within the scope of the assignments delegated to it by that State, which is for the national court to determine. 1 Original language: English. 2 In addition, the applicant obtained, through his own contributions, an increase in the amount of his pension. This additional amount is not affected by the present request for a preliminary ruling. Moreover, the referring court did not specify the amount of the State pension from which the applicant was benefiting. 3 Since 2013, a reduction of 1.25% continues to be applied each year. 4 The notion of insolvency is defined in Article 2(1) of the directive. 5 Article 9(1)(e) of Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (OJ 2003 L 235, p. 10) provides that: ‘Each Member State shall, in respect of every institution located in its territory, ensure that […] where the sponsoring undertaking guarantees the payment of the retirement benefits, it is committed to regular financing.’ (italics added). A contrario, this means that Union law does not require that Member States ensure that the employer guarantees such payment. 6 See judgment of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272, paragraphs 35 to 40. In cases in which the Court has already ruled, it flows either from the description of the facts made by the referring court that the employer committed to guarantee the payment or the Court proceeded from the premise that this was the case. 7 See, by analogy regarding the concept of compensation used in Article 3(1), judgment of 28 June 2018, Checa Honrado, C‑57/17, EU:C:2018:512, paragraph 30. 8 When adopting Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977, L 61, p.26), which forms a part of the same legislative package as Directive 80/987, the Commission abandoned its attempt to legislate for the transfer of supplementary pension rights in a harmonised way. The stated reason for that was because: ‘the requirements, forms and nature of [pension] obligations differ so greatly and the ways in which they are organised are so varied, that it is not possible to lay down specific Community rules in [the] Directive’. See Opinion of Advocate General Bobek in Webb-Sämann, C‑454/15, EU:C:2016:653, point 62. 9 Judgment of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraph 41. 10 See, to that extent, judgment of 27 March 2014, UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraphs 52 and 53. 11 Judgment of 25 April 2013, C‑398/11, EU:C:2013:272, paragraph 43. 12 However, in so ruling, the Court departed from the idea of an obligation of means. 13 Paragraph 50. 14 Judgment of 24 November 2016, C‑454/15, EU:C:2016:891. 15 Judgment of 6 September 2018, C‑17/17, EU:C:2018:674. 16 As the Court lays down, Member States have an obligation of result only ‘in that regard’, namely to ensure a minimum degree of protection. See Judgment of 24 November 2016, Webb-SämannWebb-SämannWebb-Sämann, C‑454/15, EU:C:2016:891, paragraph 35. 17 It is true that in Hogan and Others (paragraph 33) the Court held that Article 8 of Directive 2008/94 must be interpreted as meaning that State pension benefits may not be taken into account in assessing whether a Member State has complied with the obligation laid down in that article. However, I believe that, when the Court made this statement, it only had in mind the 50% threshold. First, when this judgment was rendered, the solution adopted in Webb-Sämann and Hampshire had not yet been found. Second, from a logical point of view, it cannot be inferred from the fact that Article 8 only covers the claims related to supplementary occupational or inter-occupational pension schemes outside the national social security schemes that the State pension benefits may not be taken into account in assessing whether a Member State has fulfilled the obligation laid down in that article. Indeed, the scope of a guarantee is different from the amount of its coverage. In the field of social security, it is common that the payment of compensation is decided in consideration of a particular situation (disability, severe disability, orphan), but that its amount varies according to external factors, such as all the income received. However, the interpretation made by the Court in Hogan and Others is correct from the perspective of the 50% rule, since, by definition, to assess whether the reduction incurred exceeds this threshold, only the benefits paid under an occupational or inter-occupational pension scheme is to be taken into consideration. . 18 Judgment of 25 January 2007, Robins and Others, C278/05C278/05C278/05, EU:C:2007:56, paragraphs 80 and 82. 19 Judgment of 6 September 2018, C‑17/17, EU:C:2018:674. 20 Ibid. paragraph 56. 21 Ibid. paragraph 57. 22 See to that extent, judgment of 18 October 2001, Gharehveran, C‑441/99, EU:C:2001:551, paragraph 44. 23 See judgments of 25 January 2007, Robins, C‑278/05, EU:C:2007:56, paragraphs 36 to 45, of 25 July 2018, Guigo, C‑338/17, EU:C:2018:605, paragraphs 30 and 31. 24 See, to that extent, judgment of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272 paragraph 46. 25 Judgment of 24 November 2016, C‑454/15, EU:C:2016:891. 26 As their names imply, in a defined benefits pension plan, the person concerned receives a fixed pension ‐ which may require the employer to replenish the plan in the event of poor performance of the investments made ‐, whereas the payment received in a defined contribution plan depends on the performance of the investments made with a fixed contribution paid by the employer. 27 See judgment of 10 October 2017, Farrell, C413/15C413/15C413/15, EU:C:2017:745, paragraph 3333 28 Ibid., paragraph 34. 29 Paragraph 7(1) of the Law on Pensions. 30 Judgment of 24 November 2016, C‑454/15, EU:C:2016:891. 31 In judgments of 16 December 1993, Wagner Miret, C‑334/92, EU:C:1993:945, paragraph 18, and of 18 October 2001, Gharehveran, C‑441/99, EU:C:2001:551, paragraph 38, the Court ruled thus that Article 3 of Directive 80/987 (now Article 3 of Directive 2008/94) provides that the directive on the insolvency of employers does not oblige the Member States to set up a single guarantee institution for all categories of employee, and consequently to bring higher management staff within the ambit of the guarantee institution established for the other categories of employees.