Opinion of the Advocate General — ECLI:EU:C:2015:629
Date: 2015-09-24
Language of the case: Greek
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary — Judgment of the Court (Fourth Chamber), 25 February 2016 1. Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 80/987 — Scope — Employees on board a cruise ship owned by a company with its registered office in a non-member country and flying the flag of that country who live in a Member State and were engaged in that State — That company declared insolvent by a court of the Member State — Right of those employees to the protection provided by the directive in relation to outstanding wage claims (Council Directive 80/987, Arts 1, 2, 3(1) and 5(b); Council Decision 98/392) 2. Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 80/987 — Scope — Exclusions permitted by the directive — National legislation providing protection equivalent to that afforded by the directive — Protection provided in the event that seamen are abandoned abroad — No equivalent protection (Council Directive 80/987, Art. 1(2)) 1. 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 must be interpreted as meaning that, subject to the possible application of Article 1(2) of the directive, seamen living in a Member State who were engaged in that State by a company with its registered office in a non-member country but its actual head office in that Member State to work as employees on board a cruise ship owned by the company and flying the flag of the non-member country under an employment contract designating the law of the non-member country as the law applicable must, after the company has been declared insolvent by a court of the Member State concerned in accordance with the law of that State, be eligible for the protection conferred by the directive as regards their outstanding wage claims against the company. The fact that the employment contracts are subject to the law of a non-member country, that the vessel flew the flag of that non-member country and the employer has its registered office there, and the fact that the Member State concerned is not able to require the employer to contribute to the financing of the guarantee institution referred to in Article 3(1) of Directive 80/987 are irrelevant in that regard. As regards the first of those facts, a request made by an employee to a guarantee institution for payment of an amount equivalent to his outstanding wage claims must be distinguished from a request made by such an employee to an insolvent employer for payment of such claims. Second, as regards the fact that the vessel flew the flag of a non-member country and the fact that the employer’s registered office is located in that country, the criteria laid down by Directive 80/987 for determining whether a person is eligible for the protections afforded by the directive relate, essentially, to whether that person has the status of employee and whether the employer has been subject to a procedure to satisfy collectively the claims of creditors in accordance with the provisions in force in a Member State. On the other hand, no inference can be drawn from the provisions of Directive 80/987, in particular from Article 1, which defines its scope, that the place of the employer’s registered office or the flag flown by the vessel on board which the workers are employed must constitute criteria on the basis of which that definition operates. Moreover, the introduction of a mechanism such as that provided for by Directive 80/987 does not prevent the State whose flag a vessel is flying from effectively exercising its jurisdiction over that vessel or its crew as regards social matters concerning the vessel, as provided for by Articles 92(1) and 94(1) and (2)(b) of the United Nations Convention on the Law of the Sea. Third, as regards, the fact that the Member State is not able to require the employer to pay contributions to the guarantee fund referred to in Article 3(1) of Directive 80/987, it is apparent from Article 5(b) of that directive that a contribution by employers to the financing of guarantee institutions is envisaged only where the financing is not fully covered by the public authorities, so that, under the very scheme of the directive, there does not have to be any link between the employer’s obligation to contribute and mobilisation of the guarantee fund. (see paras 43-45, 47, 48, 66-68, 71, operative part 1) 2. Article 1(2) 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 must be interpreted as meaning that, as regards seamen living in a Member State engaged to work as employees on board a cruise ship owned by a company which has been declared insolvent by a court of that State and has its registered office in a non-member country but its actual head office in that Member State, protection of wage claims such as that available under the national provisions of the Member State where seamen are abandoned abroad but not, as required under Directive 80/987, as a result of the insolvency of the employer, does not constitute ‘protection equivalent to that resulting from [the] Directive’ within the meaning of that provision. (see paras 76-78, 80, operative part 2)