Opinion of the Advocate General — ECLI:EU:C:2022:740
Date: 2022-09-29
Language of the case: Romanian
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Romania

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: 
24 August 2021 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
16 April 2021 
Applicant/appellant: 
I. G. 
Defendant/respondent: 
Agenția Județeană de Ocupare a Forței de Muncă Ilfov 
  
Subject matter of the main proceedings 
Administrative action brought by the applicant/appellant I. G., seeking the 
annulment of the decision of 31 December 2019 of the defendant/respondent 
Agenția Județeană de Ocupare a Forței de Muncă Ilfov (Employment Agency of 
the District of Ilfov; ‘the Employment Agency’) requiring the applicant/appellant 
to repay the sum of RON 1 308 (Romanian Lei), representing a salarial debt paid 
from the Fondul de garantare pentru plata creanțelor salariale (Guarantee Fund for 
the Payment of Salary Claims), together with interest and late payment penalties. 
Subject matter and legal basis of the request 
Questions on the interpretation of Article 1(1) Article 2(1), Article 3, second 
paragraph, Article 4(2) and Article 12(a) 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 (codified version) 
Legal basis of the request for a preliminary ruling: the third paragraph of 
Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-524/21 
 
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Questions referred for a preliminary ruling 
1. Having regard to the autonomous concept of a ‘state of insolvency’, are 
Articles 1(1) and 2(1) of Directive 2008/94 to be interpreted as precluding 
national legislation transposing the directive – Article 15(1) and (2) of Legea nr. 
200/2006 privind constituirea și utilizarea Fondului de garantare pentru plata 
creanțelor salariale (Law No 200/2006 on the establishment and use of the 
Guarantee Fund for the Payment of Salary Claims), in conjunction with Article 7 
of the Normele metodologice de aplicare a Legii nr. 200/2006 (Methodological 
rules for the application of Law No 200/2006) – as interpreted by the Înalta Curte 
de Casație și Justiție, Completul pentru dezlegarea unor chestiuni de drept (High 
Court of Cassation and Justice, Section for the resolution of questions of law), in 
Decision No 16/2018, according to which the period of three months for which the 
Guarantee Fund may take over and pay the salary debts of an insolvent employer 
refers exclusively to the date on which the insolvency proceedings are opened? 
2. Are [the second paragraph of] Article 3 and Article 4(2) of Directive 
2008/94 to be interpreted as precluding Article 15(1) and (2) of Law No 200/2006 
on the establishment and use of the Guarantee Fund for the Payment of Salary 
Claims, as interpreted by the High Court of Cassation and Justice in Decision 
No 16/2018, according to which the maximum period of three months for which 
the Guarantee Fund may take over and pay the salary debts of an insolvent 
employer falls within the reference period spanning the three months immediately 
preceding the opening of the insolvency proceedings and the three months 
immediately after the opening of the insolvency proceedings? 
3. Is it consistent with the social objective of Directive 2008/94 and with 
Article 12(a) thereof for a national administrative practice to rely on a decision of 
the Curtea de Conturi (Court of Auditors) and, in the absence of any specific 
national rules requiring restitution by the employee, to recover from the employee 
sums allegedly paid in respect of periods not covered by the legislation or which 
were claimed after expiry of the limitation period? 
4. In the interpretation of the concept of ‘abuse’ in Article 12(a) of Directive 
2008/94, does the act of recovering from the employee, with the stated aim of 
complying with the general limitation period, salary entitlements paid by the Fund 
through the intermediary of the liquidator constitute a sufficient, objective 
justification? 
5. Are an interpretation and a national administrative practice whereby salary 
debts which an employee is required to repay are treated like tax debts, bearing 
interest and late-payment penalties, consistent with the provisions and objective of 
the directive? 
AGENȚIA JUDEȚEANĂ DE OCUPARE A FORȚEI DE MUNCĂ ILFOV 
 
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Provisions of EU law cited 
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, recitals 3 and 7, Article 1(1), Article 2(1), Article 3, Article 4 and 
Article 12(a) and (b) 
EU case-law cited 
Judgment of 27 March 1963, Da Costa en Schaake NV and Others, 28-30/62, 
EU:C:1963:6 
Judgment of 6 October 1982, Cilfit, 283/81, EU:C:1982:335 
Judgment of 15 September 2005, Intermodal Transports, C-495/03, 
EU:C:2005:552 
Judgment of 28 November 2013, Gomes Viana Novo and Others, C-309/12, 
EU:C:2013:774 
Judgment of 10 February 2011, Andersson, C-30/10, EU:C:2011:66 
Judgment of 17 November 2011, van Ardennen, C-435/10, EU:C:2011:751 
Judgment of 18 April 2013, Mustafa, C-247/12, EU:C:2013:256 
Order of 10 April 2014, Macedo Maia and Others, C-511/12, EU:C:2014:268 
Judgment of 2 March 2017, Eschenbrenner, C-496/15, EU:C:2017:152 
Judgment of 25 July 2018, Guigo, C-338/17, EU:C:2018:605 
Provisions of national law cited 
Legea nr. 200/2006 privind constituirea și utilizarea Fondului de garantare 
pentru plata creanțelor salariale (Law No 200/2006 on the establishment and 
use of the Guarantee Fund for the Payment of Salary Claims) 
Article 2 
‘The Guarantee Fund shall serve to cover the payment of salary claims arising 
from individual and collective contracts of employment between employees and 
employers against which a final court decision to open insolvency proceedings has 
been made and against which the total or partial revocation of the power of 
administration has been ordered, hereafter referred to as “employers in a state of 
insolvency”.’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-524/21 
 
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Article 10 provides that the Guarantee Fund is to be managed by the Agenția 
Națională pentru Ocuparea Forței de Muncă (National Employment Agency), 
through its regional agencies. 
Article 11(c) provides that, in the management of the Guarantee Fund, one of the 
regional agencies’ tasks is to recover debts created under the terms of this law, 
other than those arising from contributions to the Guarantee Fund. 
Article 13(1) provides that the Guarantee Fund’s resources are to cover various 
categories of salary claims, including outstanding remuneration [letter (a)]. 
Article 15 
‘1. Salary claims referred to in Article 13(1)(a), (c), (d) and (e) shall be borne 
for a period of three calendar months. 
2. The period referred to in paragraph 1 is the period preceding the date on 
which entitlement is claimed and preceding or following the date on which 
insolvency proceedings are opened.’ 
Norma metodologică de aplicare a Legii nr. 200/2006 privind constituirea și 
utilizarea Fondului de garantare pentru plata creanțelor salariale din 21 
decembrie 2006 (Methodological rules for the application of Law No 200/2006 
on the establishment and use of the Guarantee Fund for the Payment of 
Salary Claims, 21 December 2006) 
Article 7 
‘1. Where that the claims of the employee of the employer in a state of 
insolvency predate the month in which the insolvency proceedings are opened, the 
period of three calendar months referred to in Article 15(1) of the Law shall 
precede the date on which the insolvency proceedings are opened. 
2. Where the claims of the employee of the employer in a state of insolvency 
date from after the month in which the insolvency proceedings are opened, the 
period referred to in Article 15(1) of the Law shall follow the date on which the 
insolvency proceedings are opened.’ 
Legea nr. 500/2002 din 11 iulie 2002 privind finanțele publice (Law 
No 500/2002 of 11 July 2002 on Public Finance) 
Article 731 provides that the recovery of sums which represent losses to or 
unlawful payments from public funds, established by the competent supervisory 
bodies, are to include the charging of interest and late-payment penalties or 
surcharges. 
Legea nr. 207/2015 din 20 iulie 2015 privind Codul de procedură fiscală (Law 
No 207/2015 of 20 July 2015 on the Code of Fiscal Procedure) 
AGENȚIA JUDEȚEANĂ DE OCUPARE A FORȚEI DE MUNCĂ ILFOV 
 
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Article 174(5) provides that the rate of interest is calculated for each day of delay, 
and is 0.02% for each day of delay; Article 176(2) provides that the rate of late-
payment penalties is 0.01% of the sum due, for each day of delay. 
 
Succinct presentation of the facts and procedure in the main proceedings 
1 Law No 200/2006 on the establishment and use of the Guarantee Fund for the 
Payment of Salary Claims transposes into national law Directive 2008/94/EC on 
the protection of employees in the event of the insolvency of their employer. 
2 In accordance with Article 15 of Law No 200/2006, the Guarantee Fund for the 
Payment of Salary claims is to bear the salary claims of employees of employers 
in a state of insolvency for a period of three calendar months. 
3 In accordance with Article 11(b) of Law No 200/2006, read together with 
Article 10 thereof, the determination of the amount of the salary entitlements due 
to the employee and the payment thereof are tasks of the National Employment 
Agency, acting through its regional and municipal agencies. 
4 On the basis of Law No 200/2006, by decision of 13 March 2017, the 
defendant/respondent, the Employment Agency, fixed at RON 1 308 the salary 
entitlement due to the applicant/appellant I. G., upon accepting the request from 
the general liquidator appointed in the insolvency of I. G.’s employer, the 
company A. P. S. R. L. The salary entitlement thus established related to 
outstanding remuneration due to I. G. for the months of May, June and July 2013. 
5 Subsequently, by Decision No 16/2018, the Înalta Curte de Casație și Justiție 
(High Court of Cassation and Justice, Romania) interpreted Article 15 of Law 
No 200/2006 as meaning that the maximum period of three months, for which the 
Guarantee Fund may assume and pay the salary debts [owed by] an insolvent 
employer falls within the reference period spanning the three months 
immediately preceding the opening of the insolvency proceedings and the 
three months immediately after the opening of the insolvency proceedings, 
and that that three-month period refers exclusively to the date on which the 
insolvency proceedings are opened. 
6 By decision of 6 August 2019, the Romanian Court of Auditors instructed the 
National Employment Agency to recover any payments of salary claims made 
from the Guarantee Fund that were not in conformity with Article 15 of Law 
No 200/2006, as interpreted by the High Court of Cassation and Justice in 
Decision No 16/2018. 
7 By decision of 31 December 2019 (‘the contested decision’), the 
defendant/respondent, the Employment Agency, ordered the applicant/appellant to 
pay RON 1 308, representing a salarial debt established under the initial decision 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-524/21 
 
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of 13 March 2017, to which it added interest and late payment penalties for the 
period from 13 April 2017 to 21 December 2019, to accrue further up to the date 
of payment or extinguishment of the entire debt. The contested decision was based 
on the fact that the months for which the salary entitlement had been paid did not 
fall within the reference period, as defined by the High Court of Cassation and 
Justice in its interpretative ruling on Article 15 of Law No 200/2006. I. G. could 
have benefited from payments from the Guarantee Fund in respect of salary 
entitlements relating to the period between three months before and three months 
after the opening of the employer’s insolvency proceedings, which was on 
19 March 2010. However, in this case, the salary entitlement paid to I. G. related 
to the months of May, June and July 2013. 
8 The action for the annulment of the contested decision which the 
applicant/appellant brought before the Tribunalul București (Regional Court, 
Bucharest, Romania) was dismissed as unfounded by judgment of 25 May 2020. 
9 I. G. has brought an appeal against that judgment before the referring court. 
The essential arguments of the parties in the main proceedings 
10 The applicant/appellant maintains, in the first place, that the contested decision is 
unlawful as a result of the incorrect application of Decision No 16/2018 of the 
High Court of Cassation and Justice. The administrative authority has, in fact, 
called into question salary entitlements which the applicant/appellant had acquired 
earlier, under the decision of 13 March 2017, which is a lawful administrative act, 
one that has not been annulled and cannot be revoked by the issuer because it has 
entered the realm governed by civil law. 
11 He also states that the provisions of Article 15(2) of Law No 200/2006, as 
interpreted in Decision No 16/2018 of the High Court of Cassation and Justice, 
have been ruled unconstitutional by the Curtea Constituțională (Constitutional 
Court, Romania), such that they can no longer be regarded as the legal basis for 
the administrative act. 
12 The applicant/appellant maintains, in the second place, that the court of first 
instance erred in holding the defendant/respondent to have competence to issue 
the contested decision on the basis of Law No 200/2006, finding that, in the 
present case, the provisions of the Code of Fiscal Procedure apply, which confer 
jurisdiction on the central tax authority, acting through its specialised departments 
responsible for the administration of tax claims. 
13 Lastly, the applicant/appellant also criticises the court of first instance for 
rejecting his arguments relating to the infringement of Article 1 of Protocol No. 1 
to the European Convention on Human Rights, in the sense that it erred in holding 
that he was not in possession of an asset and had no legitimate expectation with 
regard to the sums of money which he received by way of salary entitlement and 
which he is required to repay. 
AGENȚIA JUDEȚEANĂ DE OCUPARE A FORȚEI DE MUNCĂ ILFOV 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
14 The referring court notes, in the first place, that one of the provisions of Directive 
2008/94 cited in the questions referred for a preliminary ruling, Article 12(a) of 
that directive, has not yet been interpreted by the Court of Justice, and so the court 
is not relieved of the obligation to submit a request for a preliminary ruling. 
15 The referring court considers, in the second place, that the correct interpretation 
and application to the present case of the provisions of Article 1(1), Article 2(1), 
the second paragraph of Article 3 and Article 4(2) of Directive 2008/94, in the 
light of the existing case-law of the Court of Justice, is not so obviously clear as to 
leave no reasonable doubt such as would allow it to not submit a request to the 
Court of Justice for a preliminary ruling. 
16 More specifically, the referring court recalls the judgment of 18 April 2013, 
Mustafa, C-247/12, EU:C:2013:256, and the judgment of 25 July 2018, Guigo, 
C-338/17, EU:C:2018:605. 
17 In Guigo, the Court of Justice recalled that, pursuant to Article 1(1) of Directive 
2008/94, the latter is to apply to employees’ claims arising from contracts of 
employment or employment relationships with employers in a state of insolvency 
and that the social objective of the directive is to guarantee employees a minimum 
of protection at EU level in the event of the employer’s insolvency, through the 
payment of outstanding claims resulting from contracts of employment or 
employment relationships and relating to pay for a specific period. It is in the light 
of that objective that Article 3 of the directive requires Member States to take the 
measures necessary to ensure that national guarantee institutions guarantee 
payment of employees’ outstanding claims. The Member States nevertheless have 
the option of limiting that liability, albeit, in accordance with Article 4(2) of the 
directive, they must define the reference period for which outstanding claims are 
to be met by the guarantee institution. 
18 In Guigo, the Court found to be compatible with Directive 2008/94 national 
legislation which did not guarantee the wage claims of employees whose 
employment relationship had ended more than three months prior to the entry in 
the commercial register of the judicial decision initiating insolvency proceedings 
in respect of their employer. 
19 In Mustafa, the Court of Justice held that Directive 2008/94 must be interpreted as 
not requiring the Member States to provide guarantees for employees’ claims at 
every stage of the insolvency proceedings of their employer. The Court held, in 
that case, that it was consistent with the directive for a guarantee to be provided 
only for employees’ claims arising before the entry of the decision to open 
insolvency proceedings in the register of companies, even though that decision did 
not order the termination of the employer’s activities. 
20 The referring court takes the view that, by contrast with the cases which gave rise 
to the judgments mentioned, the questions of interpretation of EU law raised in the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-524/21 
 
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present case relate not so much to the rigorous transposition of the provisions of 
Directive 2008/94 cited in the questions referred for a preliminary ruling, as to the 
compatibility with the social objective of that directive of a national 
administrative practice which impinges on rights that have been acquired, on the 
basis of a binding decision of the High Court of Cassation and Justice interpreting 
the provisions of national law transposing Directive 2008/94. 
21 More specifically, in the absence of any specific national rules requiring the 
employee to repay sums previously received, the recovery from the employee is 
sought of sums allegedly paid in respect of a period falling outside the reference 
period or claimed after expiry of the limitation period. The referring court 
considers that that subsequent action to recover from the employee salary 
entitlements paid earlier by the Guarantee Fund for the Payment of Salary Claims 
is problematic, and that it is necessary to establish whether, in light of the 
interpretation of the concept of ‘abuse’, referred to in Article 12(a) of Directive 
2008/94, such recovery is objectively justified. 
22 Similarly, since the contested decision treats the salary claim of which repayment 
is sought as a debt which accrues interest and late-payment penalties, it is 
necessary to establish whether that practice is consistent with the provisions and 
the social objective of the directive. 
23 In the third place, the judgment which will be delivered in the present case will be 
final in the system of domestic remedies, and so, in accordance with the third 
paragraph of Article 267 TFEU, the referring court is required to submit a request 
to the Court of Justice for an interpretation of the EU law relevant to the case.