Opinion of the Advocate General — ECLI:EU:C:2002:564
Date: 2002-10-03
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of the partial conclusions I have reached, I propose that the Court should rule that: - Council Directive 80/987/EEC of 20 October 1980 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 it does not preclude national legislation under which, on account of the principles on loans made in substitution for share capital, the right of a shareholder with no controlling influence on the company to have recourse to the guarantee relating to salary which has not been paid on account of insolvency is limited where, in his capacity as an employee of the company, he does not, after the onset of the company's creditunworthiness which has become apparent to him, claim the regular pay which has stopped being paid to him for more than sixty days or resign early on the ground that his pay has been withheld. - Article 10 of Directive 80/987/EEC must be interpreted as meaning that, in the application of the principles on loans made in substitution for share capital to an employee-shareholder with no controlling influence on the company, the loss of rights to which such a person exposes himself applies only to the rights relating to the period following expiry of the sixty-day time-limit referred to above, unless it transpires that the employer and the employee have engaged in collusive conduct to the detriment of creditors for the purposes of Article 10(b) of that directive. In that case, the loss of entitlement may encompass all of the unsatisfied claims held by the employee-shareholder. 1: - Original language: French. 2: - OJ 1980 L 283, p. 23. 3: - (See Annex I to the Act of Accession, Social Policy, D Employment Legislation.) 4: - Joined Cases C-94/95 and C-95/95 Bonifaci and Others and Berto and Others [1997] ECR I-3969, paragraph 3; Case C-373/95 Maso and Others [1997] ECR I-4051, paragraph 3; Case C-117/96 Mosbæk [1997] ECR I-5017, paragraph 17; and Case C-198/98 Everson and Barrass [1999] ECR I-8903, paragraph 20. 5: - Case C-125/97 A.G.R. Regeling v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1998] ECR I-4493, paragraph 20. 6: - Emphasis added. 7: - Case C-160/01, pending before the Court, points 32 to 37. 8: - Case C-334/92 Wagner Miret [1993] ECR I-6911. 9: - The Republic of Austria expressly excluded shareholders who exercise a decisive influence.