Judgment;Summary — ECLI:EU:C:2024:163
Date: 2024-02-22
Language of the case: French
Court formation: Seventh Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-125/23 – 1 
Case C-125/23 
Request for a preliminary ruling 
Date lodged: 
1 March 2023 
Referring court: 
Cour d’appel d’Aix-En-Provence (France) 
Date of the decision to refer: 
24 February 2023 
Appellant: 
Association UNEDIC délégation AGS de Marseille 
Respondents: 
V 
W 
X 
Y 
Z 
Liquidator of company K 
      
QUESTIONS REFERRED FOR A PRELIMINARY RULING 
 
Cour d’appel d’Aix-en-Provence (Court of Appeal, Aix-en-Provence) 
… 
Judgment of 24 February 2023 
Reference: RG 21/15225 
EN 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2023 – CASE C-125/23 
 
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Appellant: UNEDIC DELEGATION AGS DE MARSEILLE association 
… 
v 
Respondents: 
Ms V 
… 
and 
liquidator of company K 
… 
Judgment of 24 February 2023 
Reference: RG 21/15223 
Appellant: UNEDIC DELEGATION AGS DE MARSEILLE association 
… 
v 
Respondents: 
Ms W 
… 
and 
liquidator of company K 
… 
Judgment of 24 February 2023 
Reference: RG 21/15220 
Appellant: UNEDIC DELEGATION AGS DE MARSEILLE association 
… 
v 
Respondents: 
UNEDIC ASSOCIATION 
 
3 
Mr X 
… 
and 
liquidator of company K 
… 
Judgment of 24 February 2023 
Reference: RG 21/15213 
Appellant: UNEDIC DELEGATION AGS DE MARSEILLE association 
… 
v 
Respondents: 
Mr Y 
… 
and 
liquidator of company K 
… 
Judgment of 24 February 2023 
Reference: RG 21/15212 
Appellant: UNEDIC DELEGATION AGS DE MARSEILLE association 
… 
v 
Respondents: 
Mr Z 
… 
and 
liquidator of company K 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2023 – CASE C-125/23 
 
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… 
The Court of Appeal, Aix-en-Provence, hereby submits to the Court of Justice of 
the European Union a question referred for a preliminary ruling concerning the 
interpretation of Directive 2008/94/EC of the European Parliament and of the 
Council of 22 October 2008 on the protection of employees in the event of the 
insolvency of their employer. 
1. LEGAL CONTEXT 
1.1 Declaration of contract termination under French law 
A declaration of contract termination is a unilateral method of termination of a 
contract of employment, available to employees only, by which an employee 
decides to terminate his or her contract of employment because he or she 
considers there to be sufficiently serious shortcomings on the part of the employer 
preventing the continuation of the contract of employment. 
Its fundamental principles were laid down by the Cour de cassation (Court of 
Cassation, France) in a number of judgments of 23 June 2003. 
A declaration of contract termination is made without being subject to any 
particular formal requirements, does not need to be reasoned and, from the point 
at which it is made by the employee, entails the immediate termination of the 
employment relationship. 
If the court before which the matter is subsequently brought considers that the 
facts relied on by the employee justified such a declaration being made, that 
termination of the contract of employment has the effects of a dismissal without 
genuine and serious grounds and sees the employer ordered to pay compensation 
related to the termination of the contract of employment: a compensatory 
allowance in lieu of notice and paid leave related to the termination of that 
contract, statutory or contractual severance pay and damages for dismissal without 
genuine and serious grounds. 
Conversely, if the court considers that the declaration of contract termination was 
unjustified, it has the effects of a resignation. The employee will thus be unable to 
claim any compensation in respect of the termination of the contract of 
employment and may be ordered to pay compensation to the employer in respect 
of the period of notice which he or she has not worked. 
1.2 Insolvency proceedings under French law 
… 
[General presentation of rescue, court-supervised recovery and court-ordered 
liquidation proceedings] 
UNEDIC ASSOCIATION 
 
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1.3 Salary guarantee 
1.3.1 National law  
Article L. 3253-6 of the code du travail (Employment Code) states that all 
employers governed by private law are to insure their employees, including those 
on secondment abroad or the expatriates referred to in Article L. 5422-13, against 
the risk of non-payment of amounts due to them in performance of the contract of 
employment, in the event of rescue, recovery or court-ordered liquidation 
proceedings. 
Under Article L. 3253-14 of the same code, the Association de garantie des 
salaires (Salary Guarantee Association; ‘the AGS’) is to ensure the 
implementation of that obligation to insure. 
Paragraph 2 of Article L. 3253-8 of the Employment Code provides that the 
insurance referred to in Article L. 3253-6 is to cover claims arising from the 
termination of contracts of employment occurring: 
(a) During the observation period; 
(b) Within the month following the judgment adopting the rescue, recovery or 
disposal plan; 
(c) Within fifteen days following the liquidation judgment, or twenty-one days 
where an employment protection plan is drawn up; 
(d) During the temporary continuation of operations authorised by the court-
ordered liquidation judgement and within fifteen days following the end of that 
continuation of operations, or twenty-one days where an employment protection 
plan is drawn up. 
Those provisions do not expressly limit the intervention of the AGS-CGEA, in 
respect of claims arising from the termination of the contract of employment, 
taking into account the person who terminated the contract. 
The Court of Cassation has consistently held that only claims resulting from 
terminations of contracts of employment occurring at the initiative of the court-
appointed administrator, liquidator or employer, as the case may be, during the 
periods referred to in paragraph 2 of Article L. 3253-8 of the Employment Code, 
fall within the scope of the AGS’ guarantee. 
Thus, if such events occur during the abovementioned periods, the AGS’ 
guarantee is not payable where a declaration of contract termination is made 
(Court of Cassation, Social Chamber, 20 December 2017, appeal No 16-19517), 
where the employee retires (Court of Cassation, Social Chamber, 20 April 2005, 
appeal No 02-47063) or in the event of the judicial termination of the contract of 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2023 – CASE C-125/23 
 
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employment (Court of Cassation, Social Chamber, 14 October 2009, appeal 
No 07-45257). 
The Court of Cassation restated that principle in the context of a priority ruling on 
constitutionality of 10 July 2019 (No 19-40019), finding inter alia that: 
- the principle of equal treatment did not preclude the legislature from 
governing different situations differently or from derogating from equal treatment 
on grounds of general interest, provided that the resulting difference in treatment 
is directly in line with the purpose of the law providing for that difference; 
- the object of the guarantee provided for in paragraph 2 of Article L. 3253-8 
of the Employment Code was the advance payment by the AGS of claims 
resulting from terminations of contracts of employment occurring so as to allow 
the undertaking to carry on its business, to save jobs and to settle liabilities, as was 
the case with terminations at the initiative of the court-appointed administrator, 
liquidator or employer, as the case may be, which occurred during the periods 
referred to in that article; 
- the provisions at issue, as consistently interpreted by the Court of Cassation, 
excluding the AGS’ guarantee in the case of contract terminations not deriving 
from the initiative of the court-appointed administrator, liquidator or employer, as 
the case may be, established a difference in treatment based on a difference in 
situation directly in line with the purpose of the law. 
1.3.2 European Union law 
Directive 2008/94/EC of the European Parliament and of the Council of 
22 October 2008 on the protection of employees in the event of the insolvency of 
their employer (‘the Directive’) states, in recital 3 thereof, that it is necessary to 
provide for the protection of employees in the event of the insolvency of their 
employer and to ensure a minimum degree of protection, in particular in order to 
guarantee payment of their outstanding claims, while taking account of the need 
for balanced economic and social development in the Community. It specifies 
that, to this end, the Member States should establish a body which guarantees 
payment of the outstanding claims of the employees concerned. 
Article 1 of the Directive provides that: 
1. The Directive is to apply to employees’ claims arising from contracts of 
employment or employment relationships and existing against employers who are 
in a state of insolvency within the meaning of Article 2(1). 
2. Member States may, by way of exception, exclude claims by certain 
categories of employee from the scope of this Directive, by virtue of the existence 
of other forms of guarantee if it is established that these offer the persons 
concerned a degree of protection equivalent to that resulting from this Directive. 
UNEDIC ASSOCIATION 
 
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3. … 
Article 3 of the Directive states that: 
Member States are to take the measures necessary to ensure that guarantee 
institutions guarantee, subject to Article 4, payment of employees’ outstanding 
claims resulting from contracts of employment or employment relationships, 
including, where provided for by national law, severance pay on termination of 
employment relationships. 
The claims taken over by the guarantee institution are to be the outstanding pay 
claims relating to a period prior to and/or, as applicable, after a given date 
determined by the Member States. 
Under Article 4 of the Directive: 
1. Member States are to have the option to limit the liability of the guarantee 
institutions referred to in Article 3. 
2. If Member States exercise the option referred to in paragraph 1, they are to 
specify the length of the period for which outstanding claims are to be met by the 
guarantee institution. However, this may not be shorter than a period covering the 
remuneration of the last three months of the employment relationship prior to 
and/or after the date referred to in the second paragraph of Article 3. 
Member States may include this minimum period of three months in a reference 
period with a duration of not less than six months. 
Member States having a reference period of not less than 18 months may limit the 
period for which outstanding claims are met by the guarantee institution to eight 
weeks. In this case, those periods which are most favourable to the employee are 
to be used for the calculation of the minimum period. 
3. Member States may set ceilings on the payments made by the guarantee 
institution. These ceilings must not fall below a level which is socially compatible 
with the social objective of this Directive. 
If Member States exercise this option, they are to inform the Commission of the 
methods used to set the ceiling. 
Article 11 of the Directive provides that the Directive is not to affect the option of 
Member States to apply or introduce laws, regulations or administrative 
provisions which are more favourable to employees. 
Lastly, Article 12 of the Directive states that the Directive is not to affect the 
option of Member States: 
(a) to take the measures necessary to avoid abuses; 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2023 – CASE C-125/23 
 
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(b) to refuse or reduce the liability referred to in the first paragraph of Article 3 
or the guarantee obligation referred to in Article 7 if it appears that fulfilment of 
the obligation is unjustifiable because of the existence of special links between the 
employee and the employer and of common interests resulting in collusion 
between them; 
(c) to refuse or reduce the liability referred to in the first paragraph of Article 3 
or the guarantee obligation referred to in Article 7 in cases where the employee, 
on his or her own or together with his or her close relatives, was the owner of an 
essential part of the employer’s undertaking or business and had a considerable 
influence on its activities. 
… 
… [Procedural matters] 
2. BACKGROUND TO THE DISPUTE 
2.1 Facts 
In the course of September and October 2017, Messrs and Mmes V, W, X, Y and 
Z (the applicants) were recruited to various posts (cloakroom attendant, barman, 
barmaid, manager and host), under fixed-term, part-time contracts, by the 
company K ……. 
On 26 June 2018, the company K ……. was the subject of a court-supervised 
recovery scheme. 
On 9 July 2018, the applicants made declarations of the termination of their 
contracts of employment. 
By judgment of 24 July 2018, the tribunal de commerce (commercial court) 
ordered the court-supervised liquidation of the company K ……. 
2.2 The proceedings at first instance 
On 31 July 2018, the applicants applied to the conseil de prud’hommes de 
Draguignan (Labour Tribunal, Draguignan) for the determination of their claims 
in the list of liabilities for the court-supervised liquidation of the company 
K …… … 
… 
In several judgments of 2 July 2020, the Labour Tribunal, Draguignan,: 
- held that the declarations made by the applicants produced the effects 
of a dismissal without genuine and serious grounds; 
UNEDIC ASSOCIATION 
 
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- determined their claims in the list of liabilities of the company K ….. 
in respect of back pay, related paid leave, the compensatory allowance in 
lieu of notice, in connection with related paid leave, the allowance for unfair 
dismissal and payable pursuant to Article 700 of the code de procédure 
civile (Code of Civil Procedure); 
- declared the judgment to be a joint ruling enforceable against the 
AGS-CGEA, which is subject to a guarantee obligation in respect of the 
aforementioned amounts, within the limits and subject to the ceilings laid 
down in Article L. 3253-6 et seq., including Article L. 3253-8 vis-à-vis the 
amounts guaranteed in the case of court-ordered liquidation, and Article D. 
3253-5 of the Employment Code in the absence of available funds. 
… 
2.3 The appeal proceedings: 
On 27 October 2021, the AGS-CGEA appealed those judgments. 
The debate before the court of appeal essentially concerned whether the initial 
judgments of 2 July 2020 had settled the application by the AGS-CGEA seeking 
the exclusion from the guarantee of the claims arising from the termination of the 
contract of employment and whether the amounts claimed by the applicants in 
respect of those claims were guaranteed by the AGS-CGEA. 
The applicants were of the view that the judgments of 2 July 2020 had ruled on 
the application by the AGS-CGEA for exclusion from its guarantee of the claims 
arising from the termination of the contract of employment and that, accordingly, 
the AGS-CGEA should have appealed against that judgment rather than bringing 
an application for failure to give a ruling before the labour tribunal. On the 
substance of the matter, they considered that the claims arising from the 
termination of the contract of employment further to the declarations made by 
them were guaranteed by the AGS-CGEA. 
For its part, the AGS-CGEA argued that the judgments of 2 July 2020 had not 
addressed its application for exclusion from the guarantee and that they could 
therefore bring an application for a failure to give a ruling before the labour 
tribunal. As regards the substance, it set out that the claims arising from the 
termination of the contract of employment further to the declarations made by the 
appellants were not guaranteed by the AGS-CGEA. 
… 
In the course of deliberations, on 6 December 2002, the court of appeal informed 
the parties that there was a difficulty relating to the interpretation of the provisions 
of paragraph 2 of Article L. 3253-8 of the Employment Code in a manner 
consistent with domestic law having regard to the Directive. That court informed 
the parties that it planned to refer a question to the Court of Justice of the 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2023 – CASE C-125/23 
 
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European Union for a preliminary ruling relating to that difficulty of 
interpretation … 
… 
By judgment of 24 February 2023, the court of appeal, after finding that the 
judgments of 2 July 2020 had not ruled on the applications by the AGS-CGEA for 
the exclusion from its guarantee of the claims payable in respect of the 
declarations of contract termination, declared the AGS-CGEA’s appeal 
admissible, overturned the judgment of the Labour Tribunal, Draguignan, of 
1 July 2021 and decided to refer a question to the ECJ for a preliminary ruling. 
3. TERMS OF THE DEBATE 
It is settled case-law as a matter of domestic law that paragraph 2 of Article L. 
3253-8 of the Employment Code allows claims arising from the termination of the 
contract of employment during an insolvency procedure to be taken over by the 
AGS-CGEA only if the contract of employment is terminated at the initiative of 
the court-appointed administrator, liquidator or employer, as the case may be, and 
that the AGS-CGEA does not guarantee such claims in other cases of termination, 
in particular in the case of a declaration of contract termination made by an 
employee. 
However, if the termination occurs during a period of insolvency, the Directive 
and the case-law of the Court of Justice of the European Union (ECJ) do not 
appear to exclude the intervention of the guarantee institution, in respect of 
severance pay on termination of employment relationships, taking into account the 
person who terminated the contract of employment, or to allow its implementation 
only where the termination of the contract of employment follows from the 
initiative of the employer or of one of the persons in the insolvency proceedings. 
On the contrary, the directive in question lays down, in the recitals thereof, a 
general principle that employees enjoy a minimum degree of protection against 
their employer’s insolvency, without restricting that guarantee according to the 
person who terminated the contract. 
In addition, Article 4 of the Directive seems to allow Member States to limit the 
payment obligation of guarantee institutions to certain periods only. The 
interpretation of that article a contrario does not appear to permit Member States 
to limit its guarantee according to the person who terminated the contract. 
Moreover, Article 11 of the Directive provides that the Directive is not to affect 
the option of Member States to apply or introduce laws, regulations or 
administrative provisions which are more favourable to employees. 
Accordingly, derogation from the provisions of the Directive would be possible 
only in a way that is more favourable to employees. 
UNEDIC ASSOCIATION 
 
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Furthermore, Article 12 of the Directive specifies that the Directive is not to affect 
the option of Member States: 
(a) to take the measures necessary to avoid abuses; 
(b) to refuse or reduce the liability referred to in the first paragraph of Article 3 
or the guarantee obligation referred to in Article 7 if it appears that fulfilment of 
the obligation is unjustifiable because of the existence of special links between the 
employee and the employer and of common interests resulting in collusion 
between them; 
(c) to refuse or reduce the liability referred to in the first paragraph of Article 3 
or the guarantee obligation referred to in Article 7 in cases where the employee, 
on his or her own or together with his or her close relatives, was the owner of an 
essential part of the employer’s undertaking or business and had a considerable 
influence on its activities. 
No such derogation appears to allow the intervention of the guarantee institution 
to be limited depending on the person who terminated the contract. 
Finally, in the context of a judgment of 17 January 2008 (Case C-246/06, Velasco 
Navarro), the Court of Justice of the European Union held that it was for the 
national court to interpret the national rules at issue in the main proceedings in 
accordance with those general principles and fundamental rights as interpreted by 
the Court and, in particular, the principle of equal treatment, in accordance with 
which comparable situations must not be treated differently unless such difference 
in treatment is objectively justified (paragraphs 35 and 36). 
It is a matter of principle that, in the absence of the horizontal direct effect of the 
directives which allows the actual benefit of the rights conferred on individuals by 
the provisions of those directives to be ensured, it is for the courts and tribunals of 
the Member States to interpret domestic laws in the light of the wording and 
objectives of the directives, and therefore to achieve the results specified in those 
directives. 
Accordingly, it seems legitimate to ask whether the Directive may [be] interpreted 
as allowing, in the case of termination of a contract of employment during a 
period of insolvency, the intervention of the guarantee institution to be limited, in 
respect of severance pay on termination of employment relationships, by taking 
account of the person who terminated the contract, whether an interpretation to 
that effect entails a difference in treatment between employees and whether that 
difference, if it exists, is objectively justified. 
The Court of Appeal, Aix-en-Provence, therefore has the honour to refer the 
following questions to the Court of Justice of the European Union for a 
preliminary ruling: 
REQUEST FOR A PRELIMINARY RULING OF 24. 2. 2023 – CASE C-125/23 
 
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1. Can Directive 2008/94/EC of the European Parliament and of the Council of 
22 October 2008 on the protection of employees in the event of the insolvency of 
their employer be interpreted as allowing the guarantee institution to be precluded 
from taking over the guarantee of severance pay on termination of employment 
relationships where an employee declares the termination of his or her contract of 
employment after insolvency proceedings have been initiated? 
2. Is such an interpretation consistent with the wording and the purpose of that 
directive, and does it enable the results specified therein to be achieved? 
3. Does such an interpretation, based on the person who terminated the contract of 
employment during the period of insolvency, entail a difference in treatment 
between employees? 
4. If such a difference in treatment exists, is it objectively justified? 
…