Opinion of the Advocate General — ECLI:EU:C:2013:419
Date: 2013-06-20
Language of the case: Portuguese
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary — Judgment of the Court (Fifth Chamber), 28 November 2013 Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 80/987 — Limitation on the payment obligation of guarantee funds — National legislation excluding wage claims falling due more than six months before the commencement of an action seeking a declaration that the employer is insolvent — Lawfulness (Council Directive 80/987, as amended by European Parliament and Council Directive 2002/74) Directive 80/987 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 amended by Directive 2002/74, must be interpreted as not precluding national legislation which does not guarantee wage claims falling due more than six months before the commencement of an action seeking a declaration that the employer is insolvent, even where the workers initiated, prior to the start of that period, legal proceedings against their employer with a view to obtaining a determination of the amount of those claims and an enforcement order to recover those sums. Both Directive 80/987, in its original version, and Directive 80/987, as amended, confer on the Member States the power to limit the payment obligation by fixing a reference period or a guarantee period and/or setting ceilings on payments. Therefore, Directive 80/987, as amended, does not preclude a Member State from fixing the date from which the reference period must be calculated as the date on which the action for a declaration of an employer’s insolvency is commenced. Likewise, where a Member State decides to exercise the option to limit the guarantee by setting a reference period, it may choose to limit that reference period to six months provided that it guarantees pay for the last three months of the employment relationship. Directive 80/987, as amended, seeks only minimum protection for workers in the event of their employer’s insolvency. The provisions concerning the option offered to the Member States to limit their guarantee show that the system established by that directive takes account of the financial capacity of those States and seeks to preserve the financial stability of their guarantee institutions. Thus, although cases in which it is permitted to limit the payment obligation of the guarantee institutions must be interpreted strictly, that interpretation cannot deprive of its effectiveness the option expressly conferred on Member States to limit that payment obligation. (see paras 22, 27, 29, 31, 32, 37, operative part)