Opinion of the Advocate General — ECLI:EU:C:2016:653
Date: 2016-09-08
Language of the case: German
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 24 November 2016 1. Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer –Directive 2008/94 — Scope — Articles 3 and 8 of that directive — Outstanding pension contributions — Included (European Parliament and Council Directive 2008/94, Arts 3, 4, 6 and 8) 2. Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94 — Aim — Supplementary occupational pension schemes — Protection of rights to old-age benefits — Minimum level of protection required — Obligation to exclude outstanding pension contributions excluded from the scope of insolvency proceedings — Absence (European Parliament and Council Directive 2008/94, Arts 8 and 11) 1. Article 8 of Directive 2008/94 on the protection of employees in the event of the insolvency of their employer applies to outstanding pension contribution, in so far as they are not compensated under Article 3 of that directive. In that regard, the protection afforded by Article 8 is complementary to that guaranteed by Article 3 of that directive, and they can both apply together to the same situation. Although pension contributions are not expressly referred to in Article 8 of Directive 2008/94, they are closely connected with the rights conferring immediate or prospective entitlement to old-age benefits, which that provision seeks to protect. Those contributions are designed to finance the immediate entitlement of employees at the time of their retirement. The failure on the part of the employer to pay contributions could constitute a cause of underfunding of a supplementary occupational pension scheme, a situation which falls under Article 8 of that directive. The fact remains that Article 3 and Article 8 of Directive 2008/94 have different purposes and concern two different types of protection. Article 3 of that directive requires that the payment of outstanding claims, including not only salary claims, but also, subject to Article 6 of that directive, certain contributions in the form of salary claims, be ensured by the guarantee institutions. Moreover, Article 4(2) and (3) of Directive 2008/94 grants the Member States the power to restrict the scope of Article 3 thereof. Such a restriction may concern both the length of the period for which outstanding claims are to be met by the guarantee institution and the level at which the payments made by that institution are capped. In addition, the protection established in Article 3 of Directive 2008/94 concerns, in principle, short-term claims. Article 8 of Directive 2008/94, for its part, has a more restricted material scope in so far as it seeks to protect the interest of employees in securing payment of their pension claims. Moreover, that article, unlike Articles 3 and 4 of that directive, does not provide expressly for Member States to have the power to limit the level of protection. Moreover, contrary to Article 3 of that directive, Article 8 thereof seeks to guarantee the protection of the long-term interests of employees, given that, as regards immediate or prospective entitlements, such interests extend, in principle, over the entire retirement period. (see paras 24-28) 2. Article 8 of Directive 2008/94 on the protection of employees in the event of the insolvency of their employer must be interpreted as not requiring that, in the event of employer insolvency, money withheld from a former employee’s salary converted into pension contributions, which that employer should have paid into a pension fund on behalf of that employee, be excluded from the scope of insolvency proceedings. That directive, which is intended to reconcile the interests of employees and the need for balanced economic and social development, aims to ensure, in the context of EU law, a minimum degree of protection for those employees in the event of the insolvency of their employer, without prejudice, in accordance with Article 11 thereof, to more favourable provisions which the Member States may apply or introduce. The level of protection required by that directive for each of the specific guarantees that it establishes must be determined having regard to the words used in the corresponding provision, interpreted, if need be, in the light of the above considerations. As regards Article 8 of that directive, although the Member States thus enjoy a wide margin of appreciation when implementing that provision, they are nonetheless obliged, in accordance with the objective pursued by that directive, to ensure a minimum degree of protection for employees as required by that provision. In that regard, it has already been held that a correct transposition of Article 8 of Directive 2008/94 requires an employee to receive, in the event of the insolvency of his employer, at least half of the old-age benefits arising out of the accrued pension rights for which he has paid contributions under a supplementary occupational pension scheme. The fact remains that, in other circumstances, the losses suffered could also, even if their percentage differs, be regarded as manifestly disproportionate in the light of the obligation to protect the interests of employees, referred to in Article 8 of that directive. Therefore, in so far as a Member State fulfils the obligation to ensure the minimum level of protection required by Article 8 of Directive 2008/94, its margin of appreciation as regards the mechanism for protection of entitlements to old-age benefits under a supplementary occupational pension scheme in the event of insolvency of the employer cannot be affected. (see paras 32, 35, 37, 38, operative part)