Opinion of the Advocate General — ECLI:EU:C:2006:261
Date: 2006-04-27
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Social policy – Approximation of laws – Protection of workers in the event of the insolvency of their employer – Directive 80/987, as amended by Directive 2002/74 (European Parliament and Council Directive 2002/74; Council Directive 80/987) 2. Social policy – Approximation of laws – Protection of workers in the event of the insolvency of their employer – Directive 80/987 (European Parliament and Council Directive 2002/74; Council Directive 80/987) 3. Social policy – Approximation of laws – Protection of workers in the event of the insolvency of their employer – Directives 80/987 and 2002/74 (European Parliament and Council Directive 2002/74; Council Directive 80/987) 1. Where, before the entry into force of Directive 2002/74, amending 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, a Member State has already conferred on employees a statutory entitlement to protection by a guarantee institution in the event of an employer’s insolvency with regard to compensation for termination of the contract of employment, the application of that legislation to cases where the employer’s insolvency occurred after the entry into force of that directive falls within the scope of Directive 80/987, as amended by Directive 2002/74. Since the second subparagraph of Article 2(1) of Directive 2002/74 provides that Member States are to apply the laws, regulations and administrative provisions necessary to comply with that directive to any state of insolvency of an employer occurring after the date of entry into force of those provisions, an employer’s state of insolvency and its consequences fall within the temporal scope of Directive 80/987, as amended, from the date of the entry into force of that directive, even before the expiry of the transposition period laid down in the first subparagraph of Article 2(1) of Directive 2002/74. Not only the national provisions specifically intended to transpose Directive 2002/74 but also, from the date of that directive’s entry into force, the pre-existing national provisions capable of ensuring that the national law is consistent with it must be considered to fall within its scope. Although the first paragraph of Article 3 of Directive 80/987 as amended does not oblige a Member State to provide in its national legislation transposing Directive 2002/74 that the payment of severance pay on termination of the employment relationship is guaranteed, as the national legislation at issue contains a provision including such severance pay under the protection granted by the competent guarantee institution, that national provision has, since the date when Directive 2002/74 entered into force, fallen within the scope of Directive 80/987 as amended. It follows that a national provision which provides under certain circumstances for the payment of compensation to workers by the guarantee institution in the event of dismissal or termination of the employment contract, falls within the second subparagraph of the abovementioned Article 2(1) and thus within the scope of Directive 2002/74 as regards its application to events subsequent to the date of its entry into force. (see paras 28-29, 31-32, 34, operative part 1) 2. Within the scope of 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, the general principle of equality, as recognised in the Community legal order, requires that when, under national rules, statutory compensation payable on termination of an employment contract and fixed in a judgment is payable by a guarantee institution in the event of an employer’s insolvency, compensation of the same nature, fixed in an agreement between the employee and the employer which was entered into under the supervision and with the approval of a court, must be treated in the same way. (see para. 42, operative part 2) 3. When applying 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, and Directive 2002/74 amending that directive, the national court must disapply a national rule which, in breach of the principle of equality as recognised in the Community legal order, precludes the payment by the competent guarantee institution of compensation on termination of a contract fixed in an agreement between the employee and the employer which was entered into under the supervision of and with the approval of a court. (see para. 47, operative part 3)