Opinion of the Advocate General — ECLI:EU:C:2002:402
Date: 2002-06-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

SUMMARY — CASE C-442/00 
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 — 'Claims' — 'Pay' — 
Unfair dismissal — Sum payable by way of remuneration during proceedings chal­
lenging dismissal (salarios de tramitación) — Inclusion under national legislation only 
of sums determined by a judicial decision to the exclusion of those acknowledged in a 
conciliation procedure — Breach of the principle of equal treatment — Not permis­
sible 
(Council Directive 80/987, Arts 1(1), 3(1) and 10) 
2 . Social policy — Approximation of laws — Protection of employees in the event of the 
insolvency of their employer — Directive 80/987 — Scope of the guarantee offered 
by the guarantee institution — National legislation providing for the guarantee in 
respect of the sums payable, in the event of unfair dismissal, by way of remuneration 
during the proceedings challenging dismissal (salarios de tramitación), which are 
determined by judicial decision, but refusing the guarantee in respect of the sums 
acknowledged in a conciliation procedure — Breach of the principle of equal 
treatment — Obligations and powers of the national court — Elimination of 
discrimination — Application to members of the group disadvantaged by the 
discrimination of the arrangements enjoyed by the favoured group 
(Council Directive 80/987, Art. 2(2)) 
1. The general principle of equality and 
non-discrimination, which is one of the 
fundamental rights, precludes national 
legislation under which 'salarios de 
tramitación', a sum corresponding to 
the remuneration payable during pro­
ceedings challenging dismissal, to 
which unfairly dismissed workers are 
entitled, are regarded, in the event of 
their employer's insolvency, as claims 
within the meaning of Articles 1(1) and 
3(1) of Directive 80/987 on the 
approximation of the laws of the 
Member States relating to the protec­
tion of employees in the event of the 
insolvency of their employer and are 
paid by the guarantee institution only 
when they are determined by judicial 
decision whereas those acknowledged 
in a conciliation procedure are not. 
That exclusion cannot be justified 
under Article 10 of the Directive as a 
measure necessary to avoid abuses, 
since the conciliation mechanism is 
supervised and is not open to fraud. 
(see paras 33-40, operative part 1) 
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RODRÍGUEZ CABALLERO 
2. Once discrimination contrary to Com­
munity law has been established and 
for as long as measures reinstating 
equal treatment have not been adopted, 
observance of the principle of equality 
can be ensured only by granting to 
persons within the disadvantaged cat­
egory the same advantages as those 
enjoyed by persons within the favoured 
category. 
Accordingly the national court must set 
aside national legislation which, in 
breach of the principle of equality, 
excludes from the concept of 'pay' 
within the meaning of Article 2(2) 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 claims by unfairly dismissed 
workers in respect of remuneration 
during proceedings challenging dismis­
sal, agreed in a conciliation procedure 
supervised and approved by a court. It 
must apply to members of the group 
disadvantaged by that discrimination 
the arrangements in force in respect of 
employees whose claims of the same 
type, but which are granted by judicial 
decision, come, according to the 
national definition of 'pay', within the 
scope of that directive. 
(see paras 42, 44, operative part 2) 
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