Order;Summary — ECLI:EU:C:2021:159
Date: 2021-03-03
Language of the case: Spanish
Court formation: Eighth Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-841/19 — 1 
Case C-841/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
20 November 2019 
Referring court:  
Juzgado de lo Social n.º 41 de Madrid (Social Court No 41, Madrid, 
Spain) 
Date of the decision to refer:  
7 November 2019 
Applicant:  
JL 
Defendant:  
Fondo de Garantía Salarial (FOGASA) (Wages Guarantee Fund) 
  
Subject matter of the main proceedings 
A claim for payment from the Fondo de Garantía Salarial (FOGASA) (Wages 
Guarantee Fund) made by the applicant in the main proceedings, a part-time 
worker, due to the employer’s insolvency. 
Subject matter and legal basis of the request for a preliminary ruling 
The compatibility of Article 33 of the Ley del Estatuto de los Trabajadores 
(Workers’ Statute), as interpreted by the Spanish courts, with Article 4(1) of 
Directive 79/7/EEC and Article 2(1) of Directive 2006/54/EC. 
The legal basis is Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-841/19 
 
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Question referred 
The question referred is whether Article 4(1) of Directive 79/7 and Article 2(1) of 
Directive 2006/54/EC of the European Parliament and of the Council of 5 July 
2006 should be interpreted as precluding a legislative provision of a Member State 
 such as that at issue in the main proceedings, under which, as regards the 
amount which FOGASA is liable to pay a part-time worker, the worker’s base 
wages, which are reduced due to the part-time nature of the employment, are 
reduced again when calculating FOGASA’s liability under Article 33 of the 
Workers’ Statute, because the part-time factor is applied for a second time, as 
compared with a comparable full-time worker, in so far as that provision 
disadvantages female workers as compared with male workers. 
Provisions of EU law cited 
Council Directive 79/7/EEC of 19 December 1978 on the progressive 
implementation of the principle of equal treatment for men and women in matters 
of social security (Article 1 and Articles 3(1) and 4(1)). 
Directive 2006/54/EC of the European Parliament and of the Council of 5 July 
2006 on the implementation of the principle of equal opportunities and equal 
treatment of men and women in matters of employment and occupation (recital 30 
and Article 2(1)).  
Charter of Fundamental Rights of the European Union (Article 21). 
Judgment of the Court of Justice of 8 May 2019, Villar Láiz (C-161/18, 
EU:C:2019:382), paragraph 42. 
Judgment of the Court of Justice of 26 June 2018, MB (Change of gender and 
retirement pension) (C-451/16, EU:C:2018:492), paragraph 34. 
Judgment of the Court of Justice of 14 April 2015, Cachaldora Fernández 
(C-527/13, EU:C:2015:215), paragraph 28 and the case-law cited. 
Judgment of the Court of Justice of 23 October 2003, Schönheit and Becker 
(C-4/02 and C-5/02, EU:C:2003:583), paragraph 93. 
Provisions of national law cited 
Estatuto de los Trabajadores (Workers’ Statute), as amended by Royal Legislative 
Decree 2/2015 of 23 October 2015 approving the consolidated text of the 
Workers’ Statute (BOE No 255 of 24 October 2015, p. 100224) (Article 33). 
Article 33(1) and (2) provides as follows: 
FOGASA 
 
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‘1. The Wages Guarantee Fund … shall pay workers the amount of wages that 
are outstanding as a result of the employer’s becoming insolvent or going 
into administration.  
For the above purposes, wages shall mean the amount recognised as such in 
a conciliation procedure or in a court order in respect of all items listed in 
Article 26(1), and wages due in unfair dismissal cases where payable by law. 
The Fund may not pay out, on either grounds, whether jointly or separately, 
a sum greater than the sum arrived at by multiplying twice the daily 
minimum wage, including the proportional part of additional wage 
payments, by the number of days for which wages remain unpaid, up to a 
maximum of 120 days. 
2. In the cases provided for in the previous paragraph, the Wages Guarantee 
Fund shall pay the sums awarded to workers under a court judgment, order 
or conciliation procedure or under an administrative decision as a 
consequence of termination of employment or termination of contract … and 
the sums due in respect of termination of temporary or fixed-term contracts 
where provided for by law. In all cases the maximum amount payable is one 
year’s wages, and the daily wage that provides the base wage for the 
calculation may not be more than twice the daily minimum wage, including 
the proportional part of additional wage payments. 
[…]’ 
Judgment of the Tribunal Supremo (Supreme Court) of 29 November 2017. 
Judgment of the Juzgado de lo Social n.º 41 de Madrid (Social Court No 41, 
Madrid) of 11 June 2018. 
Brief summary of the facts and the main proceedings 
1 The applicant in the main proceedings was employed from 27 September 2017 as 
a waiter by CONSTRUCCIONES Y OBRAS PÚBLICAS TOLETUM, S.L. on a 
part-time fixed-term employment contract, working 20 hours a week, and his 
wages were determined under a collective agreement. 
2 On 26 December 2017 the company closed the premises where the applicant in 
the main proceedings worked and disappeared from its offices and its known 
address. 
3 In a final judgment delivered on 11 June 2018, Social Court No 41, Madrid, 
upheld the claim filed by the applicant in the main proceedings against the 
aforesaid company, finding that he had been unfairly dismissed by the company, 
that his contract had been terminated, and that he was entitled to receive 
compensation of EUR 433.13 plus the wages that had accrued from the dismissal 
until the date of the court order, which amounted to EUR 6 170.75. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-841/19 
 
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4 An order was made on 4 September 2018 for the enforcement of the judgment. 
5 As the company was declared insolvent by a court order dated 20 December 2018, 
under Article 33 of the Workers’ Statute, the Wages Guarantee Fund (FOGASA) 
is liable for payment of the outstanding wages and the compensation awarded to 
the worker.  
6 The applicant filed a claim for the sum due with the Wages Guarantee Fund 
(FOGASA) under Article 33 of the Workers’ Statute on the grounds of his 
employer’s insolvency. 
7 In the view of the referring court, in order to rule on the main proceedings it is 
necessary to refer a question on the interpretation of EU law to the Court of 
Justice of the European Union. 
Main arguments of the parties to the main proceedings 
8 None included. 
Brief summary of the reasons for the request for a preliminary ruling 
9 In the view of the referring court, the way in which Article 33 of the Workers’ 
Statute is interpreted by the Spanish courts is contrary to Article 4(1) of Directive 
79/7/EEC and Article 2(1) of Directive 2006/54/EC, because that interpretation is 
discriminatory, in that it affects workers on part-time contracts as compared with 
full-time workers and has a greater impact on women, because a far higher 
percentage of women are employed on part-time contracts as compared with men.  
10 In the view of the referring court, that interpretation means that the amount which 
a worker on a part-time contract can claim from the Wages Guarantee Fund 
(FOGASA) where his employer becomes insolvent or goes into administration is 
reduced twice, because Article 33(1) of the Workers’ Statute establishes a limit on 
the liability of the Wages Guarantee Fund (FOGASA) that is based on the 
minimum wage. Because the courts’ interpretation is that the minimum wage must 
be reduced in cases of part-time employment, part-time workers suffer a double 
reduction: first there is a normal reduction, which reflects the fact that the worker 
is employed on a part-time contract; but then there is a second, disproportionate, 
reduction, due to the fact that, when calculating the amount payable by the Wages 
Guarantee Fund (FOGASA), the minimum wage is reduced in accordance with 
the percentage hours worked. 
In the view of the referring court, there are no objective grounds for this reduction 
in the minimum wage in the case of part-time workers, whose wages are already 
reduced by virtue of the fact that they work part time. 
FOGASA 
 
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11 In the view of the referring court, there is no direct gender-based discrimination, 
because the national legislation applies equally to male and female workers. 
However, it considers that there may be indirect discrimination, and on this point 
it cites Article 2(1)(b) of Directive 2006/54/EC and the judgments of the Court of 
Justice of 26 June 2018, MB (Change of gender and retirement pension) 
(C-451/16, EU:C:2018:492), paragraph 34; of 14 April 2015, Cachaldora 
Fernández (C-527/13, EU:C:2015:215), paragraph 28 and the case-law cited; of 
8 May 2019, Villar Láiz (C-161/18, EU:C:2019:382), paragraph 42 — which 
notes that, in Spain, in the first quarter of 2017 almost 75% of part-time workers 
were women; and of 23 October 2003, Schönheit and Becker (C-4/02 and C-5/02), 
EU:C:2003:583, paragraph 93.