Opinion of the Advocate General — ECLI:EU:C:1997:38
Date: 1997-01-23
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment
1. Community law — Rights conferred on individuals— Breach, by a Member State, of the
obligation to transpose a directive — Obligation to make good loss or damage caused to indi­
viduals— Scope of reparation — Retroactive and proper application in full of the measures
implementing the directive — Sufficient reparation — Conditions
(Council Directive 80/987)
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SUMMARY — CASE C-373/95
2. Social policy — Approximation of laws — Protection of employees in the event of the insol­
vency of their employer — Directive 80/987 — Determination of outstanding claims which
are subject to the guarantee — Onset of the employer's insolvency — Definition
(Council Directive 80/987, Arts 3(2) and 4(2))
3. Social policy — Approximation of laws — Protection of employees in the event of the insol­
vency of their employer — Directive 80/987 — National legislation prohibiting the aggrega­
tion of the amounts guaranteed by the directive with compensation paid after dismissal of the
employee — Not permissible
(Council Directive 80/987, Arts 4(3) and 10)
4. Social policy — Approximation of laws — Protection of employees in the event of the insol­
vency of their employer — Directive 80/987 — Remuneration guaranteed by Article 4(2) of
the directive — Peńod of the last three months of the employment contract or employment
relationship — Basis for calculaion — Rolling month
(Council Directive 80/987, Art. 4(2))
1. In making good the loss or damage sus­
tained by employees as a result of the
belated transposition 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 insol­
vency of their employer, a Member State
is entitled to apply retroactively to such
employees belatedly adopted implement­
ing measures, including rules against
aggregation or other limitations on the
liability of the guarantee institution, pro­
vided that the directive has been properly
transposed. However, it is for the
national court to ensure that reparation of
the loss or damage sustained by the ben­
eficiaries is adequate. Retroactive and
proper application in full of the measures
implementing the directive will suffice for
that purpose unless the beneficiaries
establish the existence of complementary
loss sustained on account of the fact that
they were unable to benefit at the appro­
priate time from the financial advantages
guaranteed by the directive with the
result that such loss must also be made
good.
2. The term 'onset of the employer's insol­
vency', which, according to Articles 3(2)
and 4(2) of Directive 80/987, determines
the outstanding claims which are subject
to the guarantee provided for by the
directive, must be interpreted as designat­
ing the date of the request that proceed­
ings to satisfy collectively the claims of
creditors be opened, since the guarantee
cannot be provided prior to a decision to
open such proceedings or to a finding
that the business has been definitively
closed down where the assets are insuffi­
cient. That interpretation takes into
account both the social purpose of the
directive and the need to settle precisely
the reference periods to which it attaches
legal effects.
If the onset of the employer's insolvency
were subject to fulfilment of the condi­
tions governing the 'state of insolvency'
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MASO AND OTHERS v INPS AND ITALIAN REPUBLIC
set out in Article 2(1) of the directive, and
in particular were dependent on the
decision to open proceedings to satisfy
collectively the claims of creditors, which
may be given long after the request to
open the proceedings, payment of unpaid
remuneration might, given the temporal
limits referred to in Article 4(2), never be
guaranteed by the directive, for reasons
wholly unconnected with the conduct of
the employees.
3. Articles 4(3) and 10 of Directive 80/987
must be interpreted as meaning that a
Member State may not prohibit the
aggregation of amounts guaranteed by the
directive with an allowance which is
aimed at meeting the needs of an
employee who has been dismissed during
the three months following termination
of the employment relationship. Such an
allowance does not arise from contracts
of employment or employment relation­
ships since it is paid by definition only
after the employee has been dismissed
and therefore is not aimed at remunerat­
ing the services performed in an employ­
ment relationship.
4. It follows from the purpose of the direc­
tive that the phrase 'the last three months
of the contract of employment or
employment relationship' used in Article
4(2) thereof must be interpreted as mean­
ing three rolling months in that it repre­
sents a period of time between the day of
the month corresponding to the event
referred to in Article 4(2) of the directive
and the same day in the third preceding
month. Limitation of the guarantee to the
last three calendar months, whatever the
date on which the event referred to in
Article 4(2) of the directive occurred,
could have damaging consequences for
the beneficiaries of the directive if the
onset of the insolvency did not occur on
the last day of the month.
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