Opinion of the Advocate General — ECLI:EU:C:2001:193
Date: 2001-03-29
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 
1. Social policy — Approximation of laws — Protection of employees in the event of the 
insolvency of their employer — Directive 80/987 — Scope of the exception relating 
to Sweden provided for in Article 1 (2) — Possibility of excluding certain categories of 
employees from the wage payment guarantee — Not permissible 
(Council Directive 80/987, Art. 1(2» 
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SUMMARY — CASE C-441/99 
2. Acts of the institutions — Directives — Directive giving discretion to the Member 
States — Provision conferring on an individual in a precise and unconditional way the 
status of beneficiary of a directive — Possibility for individuals to rely on such a 
provision — Conditions 
(Art. 249 EC; Council Directive 80/987) 
3. Social policy — Approximation of laws — Protection of employees in the event of the 
insolvency of their employer — Directive 80/987 — Situation where the Member 
State concerned has designated itself as liable to fulfil the obligation to meet wage and 
salary claims — Impact on the effect of the Directive 
(Council Directive 80/987) 
1. It is clear from both the aim 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 the Act 
concerning the conditions of accession 
of the Republic of Austria, the Repub­
lic of Finland and the Kingdom of 
Sweden and the adjustments to the 
Treaties on which the European Union 
is founded, which is to ensure a mini­
mum degree of protection for all 
employees, and from the exceptional 
character of the possibility of exclusion 
provided for by Article 1(2) of the 
Directive, that the exclusions provided 
for in the Annex to the Directive must 
be interpreted strictly. Accordingly, 
Point G of Section I of the Annex to 
the directive is to be interpreted as not 
allowing the Kingdom of Sweden to 
exclude from the group of persons 
covered by the wage payment guaran­
tee provided for by the Directive 
employees whose close relative owned, 
less than six months before the petition 
in insolvency, at least 20% of the 
shares of the company employing 
them, when the employees concerned 
did not themselves have any share in 
the capital of that company. 
(see paras 26, 28, and operative part 1) 
2. Just as a private individual must be 
able to rely on the right which he has 
under a precise and unconditional 
provision of a directive when that 
provision is separable from other pro­
visions of the same directive which do 
not have the same degree of precision 
or unconditionality, that individual 
must be allowed to rely on provisions 
conferring on him in a precise and 
unconditional way the status of bene­
ficiary of a directive once the discretion 
given to the Member State with a 
regard to other provisions of the direc­
tive, whose non-implementation was 
the only obstacle to the effective exer­
cise of the right invested in the indivi-
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GHAREHVERAN 
dual by the directive, has been fully 
used. 
(see para. 44) 
3. Where a Member State has designated 
itself as liable to fulfil the obligation to 
meet wage and salary claims guaran­
teed under Directive 80/987, an 
employee whose spouse was owner of 
the company employing her is entitled 
to rely on the right to claim pay against 
the Member State concerned before a 
national court, notwithstanding the 
fact that, in breach of the Directive, 
the legislation of that Member State 
expressly excludes from the group of 
persons covered by the guarantee 
employees whose close relative was 
owner of at least 20% of the shares 
of the company but who did not 
themselves have any share in the capi­
tal of that company. 
(see para. 46, and operative part 2) 
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