Opinion of the Advocate General — ECLI:EU:C:1997:29
Date: 1997-01-23
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary
I — Introduction I - 3972
II — Legal background and facts of the case I - 3972
Relevant Community provisions I - 3972
Facts I -3975
Questions submitted by the national court I - 3978
III — Admissibility I - 3980
First question I - 3980
Second question I - 3981
Third question I - 3981
IV — Substance I - 3983
Conditions for correct belated implementation I - 3983
Retroactive implementation I - 3988
Full implementation I - 3989
Express implementation I - 3991
Review of retroactive implementation I - 3992
Directive 80/987 I - 3994
Meaning of Article 4(2) I - 3995
Validity of Article 4(2) I -4000
Minimum guarantee within the meaning of the Directive I - 4000
Content of reparation for failure to transpose the Directive I - 4002
Article 4(3) of the Directive I - 4004
V — Conclusion I - 4005
* Original language: Greek.
I - 3971
OPINION OF MR COSMAS — JOINED CASES C-94/95 AND C-95/95
I — Introduction
1. In the present cases, the Court of Justice
has been asked for a ruling pursuant to
Article 177 of the EC Treaty on three ques­
tions submitted by the Pretura Circondariale
(District Magistrate's Court), Bassano del
Grappa, concerning the interpretation and
validity of provisions of Council Directive
80/987/EEC of 20 October 1980 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. 1
2. The facts which gave rise to the reference
to the Court are new and are as follows. A
Member State which failed to transpose a
directive into national law (a failure con­
firmed by judgment of the Court of Justice)
and is consequently under an obligation to
make reparation to those who have suffered
loss or damage as a result of its failure to
transpose the directive (on conditions like­
wise prescribed by the Court) has attempted,
in the measures it takes to comply with the
directive, to establish directly the scope and
level of the reparation.
3. The national court, called upon to rule on
claims for compensation based on the
national measures, has asked the Court for
the necessary interpretation of the directive
to enable it in turn to decide whether the
national measures, in particular the definition
of the reparation, comply with Community
law.
4. The answer given to the national court
will thus constitute an extension and
addition to the Court's case-law on the
liability of Member States for damage
caused by breaches of Community law, a
subject first addressed in the judgment of
19 November 1991 in Francovich and Others
ÇFrancovich  ). 2
II — Legal background and facts of the case
Relevant Community provisions
5. Article 1 of Directive 80/987/EEC ('the
Directive'), in Section I (Scope and defini­
tions), provides that:
1 — OJ 1980 L 283, p. 23.
2 — Joined Cases C-6/90 and C-9/90 Francovich and Others v
Italian Republic [1991] ECR I-5357.
I - 3972
BONIFACI AND OTHERS v INPS
'1 . This Directive shall apply to employees'
claims arising from contracts of employment
or employment relationships and existing
against employers who are in a state of insol­
vency within the meaning of Article 2(1).'
6. Article 2, in the same section of the
Directive, states that:
'1 . For the purposes of this Directive, an
employer shall be deemed to be in a state of
insolvency:
(a) where a request has been made for the
opening of proceedings involving the
employer's assets, as provided for under
the laws, regulations and administrative
provisions of the Member State con­
cerned, to satisfy collectively the claims
of creditors and which make it possible
to take into consideration the claims
referred to in Article 1(1),
and
(b) where the authority which is competent
pursuant to the said laws, regulations
and administrative provisions has:
— either decided to open the proceed­
ings,
— or established that the employer's
undertaking or business has been
definitively closed down and that the
available assets are insufficient to
warrant the opening of the proceed­
ings.
2. This Directive is without prejudice to
national law as regards the definition of the
terms "employee", "employer", "pay",
"right conferring immediate entitlement"
and "right conferring prospective entitle-
ment .
7. Article 3, in Section II (Provisions con­
cerning guarantee institutions), provides that:
'1 . Member States shall take the measures
necessary to ensure that guarantee institu­
tions guarantee, subject to Article 4, pay­
ment of employees' outstanding claims
resulting from contracts of employment or
employment relationships and relating to
pay for the period prior to a given date.
I - 3973
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
2. At the choice of the Member States, the
date referred to in paragraph 1 shall be:
— either that of the onset of the employer's
insolvency;
— or that of the notice of dismissal issued to
the employee concerned on account of
the employer's insolvency;
— or that of the onset of the employer's
insolvency or that on which the contract
of employment or the employment rela­
tionship with the employee concerned
was discontinued on account of the
employer's insolvency.'
8. Article 4, in the same section, reads:
'1 . Member States shall have the option to
limit the liability of guarantee institutions,
referred to in Article 3.
2. When Member States exercise the option
referred to in paragraph 1, they shall:
— in the case referred to in Article 3(2), first
indent, ensure the payment of outstand­
ing claims relating to pay for the last
three months of the contract of employ­
ment or employment relationship occur­
ring within a period of six months pre­
ceding the date of the onset of the
employer's insolvency;
— in the case referred to in Article 3(2), sec­
ond indent, ensure the payment of out­
standing claims relating to pay for the
last three months of the contract of
employment or employment relationship
preceding the date of the notice of dis­
missal issued to the employee on account
of the employer's insolvency;
— in the case referred to in Article 3(2),
third indent, ensure the payment of out­
standing claims relating to pay for the
last 18 months of the contract of employ­
ment or employment relationship preced­
ing the date of the onset of the employ­
er's insolvency or the date on which the
contract of employment or the employ­
ment relationship with the employee was
discontinued on account of the employ­
er's insolvency. In this case, Member
States may limit the liability to make
payment to pay corresponding to a
period of eight weeks or to several
shorter periods totalling eight weeks.
I-3974
BONIFACI AND OTHERS v INPS
3. However, in order to avoid the payment
of sums going beyond the social objective of
this Directive, Member States may set a ceil­
ing to the liability for employees' outstand­
ing claims.
When Member States exercise this option,
they shall inform the Commission of the
methods used to set the ceiling.'
9. Under Article 9 of the Directive, Member
States also have the option to apply or intro­
duce provisions which are more favourable
to employees.
10. Article 10 reads:
'This Directive shall not 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 Article 3 or the guarantee obliga­
tion referred to in Article 7 if it appears
that fulfilment of the obligation is unjus­
tifiable because of the existence of special
links between the employee and the
employer and of common interests
resulting in collusion between them.'
11. Lastly, Article 11 provides that Member
States are to bring into force the provisions
necessary to comply with the Directive
within 36 months of its notification.
Facts
12. The Italian Republic failed to adopt the
necessary measures to transpose the Direc­
tive into Italian law within the period Mem­
ber States were allowed under Article 11 of
the Directive, which expired on 23 October
1983. The Commission brought an action
before the Court which subsequently con­
firmed, in a judgment delivered on 2 Febru­
ary 1989, that Italy had failed to fulfil its
obligations. 3
13. On 20 April 1989, while the Directive
had not yet been transposed into Italian law,
3 — Case 22/87 Commission v Italy [1989] ECR 143.
I - 3975
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
Danila Bonifaci and 33 other employees of
Gaia Confezioni Srl, which was declared
insolvent on 5 April 1985, brought proceed­
ings against the Italian Republic before the
Pretura Circondariale, Bassano del Grappa.
It was stated during the proceedings that
when the employment relationships were
discontinued the plaintiffs were owed more
than LIT 253 000 000, which was proved as a
debt in the insolvency of the undertaking,
that five years after the insolvency they had
been paid nothing and that the receiver had
told them that even a partial distribution in
their favour was highly unlikely. Conse­
quently, they claimed that, in view of its
obligation to implement the Directive, the
Italian Republic should be ordered to pay
them the amounts due as arrears of wages, at
least for the last three months of their
employment, or in the alternative to pay
compensation.
14. To enable it to resolve the dispute, the
national court made an order on 9 July 1989
referring to the Court for a preliminary rul­
ing a number of questions which the Court
answered in the judgment in Francovich I
mentioned above. 4 The operative part of
that judgment reads as follows:
'1 . The provisions of Council Directive
80/987/EEC ... which determine the rights of
employees must be interpreted as meaning
that the persons concerned cannot enforce
those rights against the State before the
national courts where no implementing mea­
sures are adopted within the prescribed
period;
2. A Member State is required to make good
loss and damage caused to individuals by
failure to transpose Directive 80/987/EEC.'
15. After that judgment was delivered,
Decreto Legislativo (Legislative Decree) No
80 of 27 January 1992 5 was issued, transpos­
ing the Directive into Italian law.
Article 1(1) of that Decreto Legislativo pro­
vides that where proceedings have been
brought against the employer for insolvency,
composition with creditors, compulsory
administrative liquidation or the extraordi­
nary administration procedure provided for
in Decreto-Legge (Decree-Law) No 26 of 30
January 1979, his employees or their legal
successors may obtain on application to the
Guarantee Fund established and operating
pursuant to Law No 297 of 29 May 1982
payment of the outstanding wages referred
to in Article 2.
4 — See footnote 2 above. 5 — GURI No 36, 13 February 1992.
I - 3976
BONIFACI AND OTHERS v INPS
16. Article 2 of the Decreto Legislativo pre­
scribes, in paragraphs 1 to 6, the method for
determining the amount of the sums to be
paid to those entitled thereafter by the
national guarantee institution (under the
basic, or 'a regime', system in the terms of
the order for reference) and in paragraph 7
the methods for determining the compensa­
tion to be paid to those who have suffered
loss or damage as a result of the failure to
transpose the Directive, by reference to the
'a regime' system.
17. Article 2(1) of the Decreto Legislativo
provides that:
'The payment made by the Guarantee Fund
within the meaning of Article 1 relates to
wage claims, other than those relating to sev­
erance pay, appertaining to the last three
months of the employment relationship fall­
ing within the 12 months preceding: (a) the
date of the measure opening one of the pro­
cedures listed in Article 1(1), (b) ..., (c)...'. 6
18. Article 2(2) provides that:
'Payment effected by the (Guarantee) Fund
pursuant to the first paragraph may not
exceed a sum equal to three times the maxi­
mum amount of the special supplementary
monthly pay net of social security and wel­
fare deductions.'
19. Lastly, Article 2(7) provides that:
'For the purposes of determining any com­
pensation to be paid to employees under the
procedures referred to in Article 1(1) by way
of reparation of the loss and damage result­
ing from the failure to transpose Directive
80/987/EEC within the prescribed period,
the relevant time-limits, measures and proce­
dures shall be those referred to in Article
2(1), (2) and (4). The action for reparation
must be brought within a period of one year
to run from the date of entry into force of
this Decree.'
20. After the publication of the Decreto
Legislativo, Danila Bonifaci and others
(plaintiffs in the main proceedings in Case
C-94/95) brought an action before the Pre­
tura Circondariale, Bassano del Grappa, pur­
suant to Article 2(7) of that Decree, seeking
compensation from the Istituto Nazionale
6 — It appears from the order for reference and the observations
of the parties in the main proceedings that under Italian law
the date which marks the beginning of the period of 12
months, i. e. the date 'of the onset of the employer's insol­
vency' in the terms of the Directive, corresponds, according
to the case-law of the Italian courts to the date on which the
judicial declaration of insolvency is issued.
I - 3977
OPINION OF MR COSMAS — JOINED CASES C-94/95 AND C-95/95
della Previdenza Sociale ('the INPS'). 7 A
similar action was also brought, before the
same court, by Wanda Berto and 136 other
employees of various undertakings that had
been declared insolvent after 23 October
1983 and before Decreto Legislativo No
80/1992 entered into force (plaintiffs in the
main proceedings in Case C-95/95). It
appears from the observations of the plain­
tiffs in the main proceedings that in many
cases their applications to the INPS for com­
pensation had been rejected altogether
because none of the periods of work fell
within the 12 months preceding the judicial
declaration of insolvency. In other cases, the
applications had been partly accepted, inas­
much as the compensation awarded to the
applicants for work within the 12 month
period had either been limited to three
months' remuneration in accordance with
Article 2(1) of Decreto Legislativo No
80/1992 or had been reduced because of the
ceiling set in Article 2(2) of that Decree.
Questions submitted by the national court
21. In the light of that factual and legal
background, the national court before which
the cases were brought had serious doubts as
to whether the rules contained in the
Decreto Legislativo it was required to apply
were consistent with the provisions of the
Directive and the principles stated in the
Court's judgment in Francovich I, which it
also had some difficulty in interpreting.
22. In particular, it points out in the order
for reference that the Italian legislature, in
exercising the option offered under Article
4(2) of the Directive, limited the liability of
the guarantee institution with respect not
only to the future (as it was entitled to do)
but also to the past. Thus it set a 'retroactive'
limit on the compensation payable in respect
of the failure to transpose the Directive,
indeed doubly so, in that the compensation
pursuant to Article 2(1) and (7) of the
Decreto Legislativo, taken together, is based
on claims which (a) appertain to the last
three months of the employment relation­
ship and (b) fall within the 12 months pre­
ceding the date of the measure opening the
procedure for satisfying collectively the
claims of creditors (in this case the date of
the judicial declaration of insolvency). That
limit may, however, make it impossible for
employees to obtain compensation since,
given the delays in hearing insolvency cases
in Italy, the judicial declaration of insolvency
may well be issued more than a year after the
creditors have lodged their petition. Thus,
because of the delay in the administration of
justice, that is to say for reasons beyond the
employees' control, it is likely that, as in the
7 — According to Judgment No 285/1993 of the Italian Consti­
tutional Court, mentioned in the order for reference and
cited in the observations of the parties in the main proceed­
ings, the INPS manages the Guarantee Fund referred to
above and any actions for compensation under Article 2(7)
of Decreto Legislativo No 80/1992 must accordingly be
brought against the INPS.
I - 3978
BONIFACI AND OTHERS v INPS
present case, they will not have worked for
the employer concerned during the crucial
reference period of 12 months preceding the
onset of the insolvency. The first question
submitted to the Court is therefore whether
Article 4(2) of the Directive means that the
national legislature may limit the compensa­
tion payable even in a case such as the one I
have just described.
23. The national court adds that such an
interpretation also entails disparity of treat­
ment between employees in the same situa­
tion (that is to say employees with claims
outstanding against their employers) because
whether or not they benefit from the guaran­
tee provided under the Directive depends on
fortuitous factors, namely whether the judi­
cial insolvency declaration was issued in
time. This prompted it to ask in the second
question whether, in the event of the first
question being answered in the affirmative,
Article 4(2) of the Directive was valid from
the point of view of the principles of equal
treatment and non-discrimination.
24. Lastly, the national court points out that
on the basis of Article 4(3) of the Directive
the Italian legislature first set a ceiling on the
guarantee afforded to employees thereafter
(Article 2(2) of the Decreto Legislativo) and
then imposed a similar limit on the liability
arising from failure to transpose the Direc­
tive into Italian law within the prescribed
period (Article 2(7) of the Decree, which
refers to Article 2(2)). It adds that the
provisions of Italian law governing non­
contractual liability (Articles 2043 et seq. of
the Civil Code) are based on the principle of
full compensation for damage and do not set
a ceiling on the amount of compensation.
The Court had however already stated, in
paragraph 43 of its judgment in Francovich I,
that 'the substantive and procedural condi­
tions for reparation of loss and damage 8 laid
down by the national law of the Member
States must not be less favourable than those
relating to similar domestic claims'. In the
light of these considerations, the national
court asked a third question which raised the
following problem. What are the 'similar
domestic claims' the conditions governing
which are to serve as a yardstick for the pur­
pose of determining the compensation in the
case at issue? Are they the guarantee
afforded to employees thereafter under the
Decreto Legislativo or compensation under
the general law on non-contractual liability
in the event of failure to transpose the Direc­
tive?
25. The questions submitted by the national
court read as follows:
'1 . Must Article 4(2) of Council Directive
80/987/EEC be interpreted as meaning that
the Member States may opt to limit the
liability of the guarantee institutions to
pay remuneration to a particular period of
time — in this case, 12 months — even in
8 — As is well known, the loss and damage in that case was loss
and damage suffered by employees as a result of the Italian
Republic's failure to adopt measures to implement the Direc­
tive at issue.
I - 3979
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
cases where the period in time in question
was exceeded not because of inertia amount­
ing to fault on the part of the employee con­
cerned and, in particular, where the
employee claims compensation for damage
on account of the non-implementation or the
belated implementation of the Directive
itself?
2. In the event that question 1 is answered in
the affirmative, must Article 4(2) of the
Directive be considered valid in the light of
the principle of equal treatment and non­
discrimination?
3. Must paragraph 43 of the judgment of the
Court of Justice of 19 November 1991 in
Joined Cases C-6/90 and C-9/90 Francovich
and Others v Italian Republic be interpreted
as meaning that the substantive and proce­
dural conditions laid down by the national
law of the Member States concerning claims
for reparation of damage on account of fail­
ure to implement a Community directive
must be the same as (or in any event not
more unfavourable than) those laid down by
the national legislator in belatedly imple­
menting the Directive itself?'
Ill — Admissibility
First question
26. The INPS contends essentially that the
first question is inadmissible because the
answer sought is irrelevant for the purpose
of resolving the dispute, inasmuch as Article
4(2) of the Directive is in its opinion con­
cerned with defining the guarantee afforded
to employees from the time when the Direc­
tive is transposed into national law and not
with determining the compensation payable
in the event of failure to implement the
Directive, as in the present case.
It also points out in the same observations
that the Directive does not make payment of
the guarantee conditional on the conduct of
the employees, as the Pretore appears to
believe.
In the light of these considerations, the INPS
concludes that the Court has no jurisdiction
to answer the first question.
27. It must be noted, in this connection, that
the Court has consistently held that, in the
context of the cooperation between the
Court of Justice and the national courts pro­
vided for by Article 177 of the Treaty, it is
I - 3980
BONIFACI AND OTHERS v INPS
solely for the national courts before which
actions are brought, and which must bear the
responsibility for the subsequent judicial
decision, to determine in the light of the par­
ticular facts of each case both the need for a
preliminary ruling in order to enable them to
deliver judgment and the relevance of the
questions which they submit to the Court. 9
Consequently, where the questions submit­
ted by the national court concern the inter­
pretation of Community law, the Court of
Justice is, in principle, bound to give a rul­
ing. 10 A request from a national court may
only be refused if it is clearly inadmissible,
for example 'where it is quite obvious that
the interpretation of Community law or
examination of the validity of a Community
rule sought by that court bears no relation to
the actual facts of the main action or its pur­
pose'. 11
28. This is not so in the present case. The
national court, having to determine whether
the national legislature was acting lawfully in
the light of Article 4(2) of the Directive
when it imposed certain limits on the com­
pensation payable, found it necessary to ask
the Court of Justice for an interpretation of
that provision — an interpretation which is,
moreover, essential to its consideration of the
second question, which concerns the validity
of the provision. Consequently, the answer
sought is clearly relevant for the purposes of
the national court and the Court of Justice
has jurisdiction to give it.
29. The INPS's observations set out above
are concerned with the substance of the case,
inasmuch as they take for granted the very
subject of the national court's reference,
namely the interpretation of Article 4(2) of
the Directive. Accordingly, while they may
be taken into account in examining the
substance, they have no bearing on the juris­
diction of the Court and the admissibility of
the questions submitted to it and must there­
fore be rejected. 12
Second question
30. The Commission expresses doubts as to
the usefulness of the second question, as it
considers the legal and factual background
provided by the national court to be inad­
equate. That objection must be rejected, as
the details provided by that court are suffi­
cient for the purpose of answering the ques­
tion.
Third question
31. The INPS contends that the third ques­
tion is concerned with the compatibility of
Article 2(7) of the Decreto Legislativo with
9 — See Case C-297/94 Bruyère and Others v Belgian State
[1996] ECR I-1551, paragraph 19.
10 — See, in particular, Case C-415/93 Union Royale Belge des
Sociétés de Football Association and Others v Bosman and
Others [1995] ECR I-4921, paragraph 59, Case C-125/94
Aprile v Amministrazione delle Finanze dello Stato [1995]
ECR I-2919, paragraphs 16 and 17, and Joined Cases
C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR
1-3763, paragraph 35.
11 — See Bosman (cited in the preceding footnote).
12 — See Case C-364/92 SAT Fluggesellschaft v Eurocontrol
[1994] ECR I-43, paragraphs 11 and 14.
I-3981
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
the judgment in Francovich I and the Court
has no jurisdiction to answer it because its
allotted task is to interpret Community law,
not to review the national measures taken to
implement that law, which is a matter for the
national courts alone.
That plea of lack of jurisdiction must be
rejected. It should be noted in this connec­
tion that the Court has consistently held that
although it has no jurisdiction under Article
177 of the Treaty to rule on the compatibility
of a national measure with Community law,
it does have jurisdiction to provide the
national court with interpretations of all rel­
evant points of Community law to enable it
to assess that compatibility for the purpose
of deciding the case before it. 13
32. In the present case, the national court
has not asked the Court directly to examine
the compatibility of the national measure
with Community law, as the INPS wrongly
supposes, but has asked for interpretations of
all the points of Community law it considers
necessary to enable it to examine that ques­
tion itself. Consequently, the Court has
jurisdiction to rule on the question submit­
ted to it.
33. Moreover, the INPS's further argument,
that the Italian Constitutional Court has
already ruled, or is about to rule, on the
compatibility of Article 2(7) of the Decreto
Legislativo, or the enabling Law, with the
Italian constitution or with Community law,
is irrelevant for present purposes.
34. Lastly, the INPS contends that, in so far
as the answer to the third question presup­
poses an interpretation of the provisions of
Directive 80/987, which are not directly
applicable, the Court has no jurisdiction to
rule on the matter, since its jurisdiction
under the second paragraph of Article 177 of
the Treaty is limited to the interpretation of
Community provisions that are directly
applicable.
That objection must in any case be rejected,
since, as has been held, 'the Court of Justice
has jurisdiction to give preliminary rulings
concerning the interpretation of acts of the
institutions of the Community, regardless of
whether they are directly applicable'. 14
13 — See Case C-177/94 Perfili [1996] ECR I-161, paragraph 9,
and Case C-338/91 Steenhorst-Neerings v Bestuur van de
Bedrijfsvereniging voor Detailhandel, Ambachten en Huis­
vrouwen [1993] ECR I-5475, paragraph 25.
14 — See Case 111/75 Mazzalai v Ferrovia del Renon [1976]
ECR 657, paragraph 7.
I - 3982
BONIFACI AND OTHERS v INPS
IV — Substance
35. It is clear from the points I have quoted
from the grounds of the order for reference
that the first question raises two issues. The
first is whether, in principle, Member States
may also apply the limits referred to in
Article 4(2) of the Directive to compensation
for damage arising from failure to implement
the Directive within the prescribed period.
The second is whether compensation is pre­
cluded for employees who, not because of
inertia amounting to fault on their part, had
no employment relationship during the ref­
erence period laid down by that provision.
36. It is also clear from the statement of rea­
sons in the order for reference that the third
question likewise raises two issues. The first
is whether, in view of the circumstances
described above, the Member State may set a
ceiling on the compensation decided, pursu­
ant to Article 4(3) of the Directive. The sec­
ond, more general, issue is to determine from
the point of view of Community law the
relationship between the compensation laid
down in the belated transposition of the
Directive and the compensation due for fail­
ure to transpose the Directive within the
prescribed period.
37. These questions arose from the attempt
by the Member State to comply with the
Directive, albeit belatedly, and to remedy the
consequences of its failure to transpose it
into its national law within the prescribed
period. The first step must therefore be to
examine the prerequisites for correct applica­
tion of the Directive in the event of belated
transposition. The questions submitted to
the Court will then be considered and I pro­
pose, on logical grounds, to take them in the
following order: first, the second part of the
third question, then the first and second
questions and, lastly, the first part of the
third question.
Conditions for correct belated implementa­
tion
38. The combined effect of Article 5, which
imposes an obligation of cooperation, and
the third paragraph of Article 189 of the
Treaty is that Member States to which a
directive is addressed must adopt within the
prescribed period all the necessary measures
to ensure that the result sought by the direc­
tive is fully achieved.
39. The State to which the directive is
addressed may fail to fulfil that obligation
either by failing to adopt any measures to
implement the directive within the pre­
scribed period, or by adopting, within the
prescribed period, measures which are, how­
ever, inadequate, or by adopting measures —
adequate or inadequate — belatedly.
I - 3983
OPINION OF MR COSMAS — JOINED CASES C-94/95 AND C-95/95
40. In all three cases, the breach causes a hia­
tus and an anomaly in the Community legal
order after the period allowed for implemen­
tation has elapsed, whether or not it is con­
firmed by a judgment of the Court of Jus­
tice, which is of a purely declaratory nature.
This 'unhealthy' situation, for as long as it
lasts, is the complete antithesis of the funda­
mental requirement that the rules of Com­
munity law must apply generally, uniformly
and at the same time over the whole territory
of the Community 15 and must be remedied.
41. Clearly a State that is in breach must
adopt as soon as possible, albeit belatedly, all
the necessary measures to implement the
directive thereafter. However, a question
arises as to its obligations, with regard to
Community law and to individuals with
rights under that law, 16 in respect of the
period during which the breach persists and,
in particular, the period during which the
directive is not (or not correctly) transposed.
42. It must be pointed out first that, as the
Court has stated, 'the aim of the Treaty is to
achieve the practical elimination of infringe­
ments and the consequences thereof, past and
future'. 17 Moreover, the Court has also held
that Member States' obligations under
Article 5 of the Treaty include 'the obligation
to nullify the unlawful consequences of a
breach of Community law'. 18
43. Since the Treaty contains no provision
expressly and specifically governing the con­
sequences of breaches of Community law by
Member States, the Court has ruled that it is
for the Court itself, in pursuance of the task
conferred on it by Article 164 of the Treaty
of ensuring that in the interpretation and
application of the Treaty the law is observed,
to rule on such a question in accordance
with generally accepted methods of interpre­
tation, in particular by reference to the fun­
damental principles of the Community legal
system and general principles common to the
legal systems of the Member States. 19
44. Thus, as a means of defending individu­
als who have suffered loss and damage as a
result of a State's inaction, the case-law has
laid down, first, the principle that wherever
15 — See Joined Cases C-46/93 and C-48/93 Brasserie du
Pêcheur and Factortame [1996] ECR I-1029, paragraph 33,
Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süder-
dithermarschen and Zuckerfabrik Soest [1991] ECR I-415,
paragraph 26, Case 61/79 Amministrazione delle Finanze
dello Stato v Denkavit Italiana [1980] ECR 1205, para­
graph 18, and Case 48/71 Commission v Italy [1972]
ECR 527.
16 — As is known, the subjects of the Community legal system
comprise not only the Member States but also individuals,
on whom rights are conferred by virtue of obligations
which the Treaty imposes in a clearly defined manner upon
the Member States (sec, in particular, Francovich I (cited in
footnote 2), paragraph 31, and Case 28/67 Molkerei-
Zentrale Westfalen v Hauptzollamt Paderborn [1968]
ECR 143, point 1A).
17 — Case 70/72 Commission v Germany [1973] ECR 813, para­
graph 13, (my emphasis).
18 — Francovich I (cited in footnote 2), paragraph 36. See also
Case 6/60 Humblet v Belgian State [1960] ECR 559, con­
cerning the similar rule contained in Article 86 of the ECSC
Treaty.
19 — Sec Brasserie du Pêcheur (cited in footnote 15), para­
graph 27.
I - 3984
BONIFACI AND OTHERS v INPS
the provisions of a directive appear to be
unconditional and sufficiently precise, those
provisions may, in the absence of implement­
ing measures, be relied upon as against any
national provision which is incompatible
with the directive or in so far as the provi­
sions define rights which individuals are able
to assert against the State. 20 As the Court
has stated, 'that conclusion is based on the
fact that directives are binding on the Mem­
ber States and on the principle that a Mem­
ber State which has not taken measures to
implement the directive within the pre­
scribed period may not, as against individu­
als, plead its own failure to fulfil such obliga­
tions'. 21
45. Secondly, the Court has then derived
from Article 5 of the Treaty, in conjunction
with the principles of the full effectiveness of
Community rules and the effective protec­
tion of the rights which they confer, the
principle of State liability for loss and dam­
age caused to individuals as a result of
breaches of Community law for which the
State can be held responsible, a principle
inherent in the system of the Treaty. 22
46. However, although State liability is thus
required by Community law, the conditions
under which that liability gives rise to a right
to reparation for individuals depend on the
nature of the breach of Community law giv­
ing rise to the loss and damage, 23 that is to
say according to each type of situation. 24
47. The case-law draws a distinction
between such situations depending on
whether the State has a wide discretion when
it acts in a field governed by Community
law or in a field in which it has a wide dis­
cretion to make legislative choices, or
whether on the contrary it has considerably
reduced, or even no, discretion. 25
48. In the first case, individuals are entitled
to reparation if (a) the rule of Community
law infringed is intended to confer rights
on individuals, (b) the breach is sufficiently
serious, 26 and (c) there is a direct causal
20 — Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982]
ECR 53.
21 — Casc 286/85 McDermott and Cotter v Minister for Social
Welfare and Attorney-General [1987] ECR 1453, paragraph
12. See also Case 71/85 Netherlands v Federatie Neder-
Undse Vakbeweging [1986] ECR 3855, paragraph 14, and
Case 8/81 Becker (cited above), paragraphs 22-24.
22 — Sec Francovich I (cited in footnote 2), paragraphs 31-36,
Brasserie du Pêcheur (cited in footnote 15), paragraphs
31-36, Case C-392/93 The Queen v H.M. Treasury, ex
parte British Telecommunications [1996] ECR I-1631, para­
graph 38, Case C-5/94 The Queen v MAFF, ex parte Hed-
ley Lomas [1996] ECR I-2553, paragraph 24, Joined Cases
C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94
Dillenkofer and Others v Federal Republic of Germany
[1996] ECR I-4845, paragraph 20, and Joined Cases
C-283/94, C-291/94 and C-292/94 Denkavit Internationaal
and Others v Bundesamt für Finanzen [1996] ECR I-5063,
paragraph 47.
23 — See Francovich I (cited in footnote 2), paragraph 38, Bras­
serie du Pêcheur (cited in footnote 15), paragraph 38, Hed-
ley Lomas (loc. cit.), paragraph 24, and Dillenkofer (loc.
cit.), paragraph 20.
24 — See Dillenkofer (cited above), paragraph 24.
25 — Brasserie du Pêcheur (cited above in footnote 15), para­
graph 43 et seq.
26 — In the sense that the State has manifestly and gravely disre­
garded the limits on the exercise of its powers. Sec judg­
ments (cited above) in Brasserie du Pêcheur, paragraphs 45
and 55, British Telecommunications, paragraph 42, and Dil­
lenkofer, paragraph 25.
I - 3985
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
link between the breach and the damage
sustained by the individuals. 27
49. In the second case, which occurs when,
as in Francovich I, the directive prescribes a
result but the State fails to adopt any meas­
ure to transpose the directive into national
law, individuals are entitled to reparation if
(a) the result prescribed by the directive
entails the grant of rights to individuals, (b)
the content of those rights can be identified
on the basis of the provisions of the direc­
tive, and (c) there is a causal link between the
breach of the State's obligation and the loss
and damage suffered by the injured parties. 28
50. The difference in wording in the two
cases does not reflect a difference in
substance. In fact, as the Court stated in its
judgment in Dillenkofer (footnote 22):
— 'In substance, the conditions laid down in
that group of judgments are the same,
since the condition that there should be
a sufficiently serious breach, although not
expressly mentioned in Francovich, was
nevertheless evident from the circum­
stances of that case' (paragraph 23).
— That is because 'where, as in Francovich,
a Member State fails ... to take any of the
measures necessary to achieve the result
prescribed by a directive within the
period it lays down, that Member State
manifestly and gravely disregards the
limits on its discretion' (paragraph 26).
— Such failure 'constitutes per se a serious
breach of Community law' (paragraph
29) which gives rise to a right to repara­
tion on the conditions described above
and 'no other conditions need be taken
into consideration' (paragraph 27).
51. The aforementioned conditions are nec­
essary and sufficient to found a right in indi­
viduals to obtain redress, 'although this does
not mean that the State cannot incur liability
under less strict conditions on the basis of
national law'. 29 The State must make repara­
tion for the consequences of the loss and
27 — See judgments (cited above) in Brasserie du Pêcheur, para­
graphs 50 and 51, British Telecommunications, paragraphs
39 and 40, Hedley Lomas, paragraphs 25 and 26, Dillen­
kofer, paragraph 21, and Denkavit, paragraph 48.
28 — See judgments (cited above) in Francovich I, paragraphs 39
and 40, and Dillenkofer, paragraph 22, and Case C-91/92
Faccini Dori v Recreb [1994] ECR I-3325, paragraph 27,
and C-192/94 El Corte Inglés v Blázquez Rivero [1996]
ECR I-1281, paragraph 22. 29 — Brasserie du Pêcheur (cited above), paragraph 66.
I - 3986
BONIFACI AND OTHERS v INPS
damage caused in accordance with the
domestic rules on liability, but subject to the
right to reparation which flows directly from
Community law where the conditions
referred to above are satisfied. 30
52. As regards the conditions for reparation
of loss and damage laid down by national
law, the Court has repeatedly held that they
'must not be less favourable than those relat­
ing to similar domestic claims and must not
be such as in practice to make it impossible
or excessively difficult to obtain repara­
tion'. 31
53. Although the Court has confirmed that
these rights are conferred on individuals in
cases of inaction on the part of the State, the
problem I have already mentioned (point 41)
remains and it is consequently raised again
here. Does the fact that, in cases where a
directive is not transposed, or is transposed
belatedly, into national law, Community law
confers on the injured parties a right to rely
on the provisions of the directive that are
directly applicable and a right to reparation
from the State mean that the State is exoner­
ated from any further obligation for the
period during which the breach persists?
54. The answer must clearly be in the nega­
tive, for many reasons including the follow­
ing:
— First, in particular, the possibility of rely­
ing on the directly applicable provisions
of directives is, by its nature, limited
because such provisions are few. 32
— Second, as I shall explain, during the
period in which the Directive was not
correctly transposed into national law,
the persons concerned were unaware of
the rights conferred on them by the
Directive itself and consequently could
not exercise them.
— Third, it is excessively difficult for indi­
viduals to avail themselves of the possi­
bility described above since it requires a
knowledge of the case-law of the Court
in which it was established, a — necessar­
ily imperfect — knowledge of the Direc­
tive which confers the rights and, lastly,
an action before the courts to assert
them, with the result that very few of
those entitled enjoy the advantages
30 — Brasserie du Pêcheur (cited above), paragraph 67. See also
the judgments (cited above) in Francovich I, paragraphs 41
and 42, and Faccini Dori, paragraph 29.
31 — See in particular the judgments (cited above) in Brasserie du
Pêcheur, paragraph 67, and Francovich I, paragraph 43.
32 — It should be noted that the Court has consistently held
that the right to rely on the provisions of the Treaty that
are directly applicable 'is only a minimum guarantee and
is not sufficient in itself to ensure the full and complete
implementation of the Treaty' (see, in this connection,
Case C-120/88 Commission v Italy [1991] ECR 1-621,
paragraph 10).
I - 3987
OPINION OF MR COSMAS — JOINED CASES C-94/95 AND C-95/95
conferred by the Directive and the
practical result it seeks to achieve is
frustrated.
55. Consequently, the above possibility rec­
ognized by the case-law of the Court is a
'substitute' 33 for the correct implementation
of the Directive. On the other hand, correct
implementation in the event of belated trans­
position of the Directive should, in my view,
as I shall explain, be retroactive, full and
express.
Retroactive implementation
56. I hold retroactive implementation of the
Directive to be a requirement of the Com­
munity legal order. In fact, as a State is
required under Article 5 and the third para­
graph of Article 189 of the Treaty to take all
appropriate measures to implement the
Directive from the date specified in the
Directive 34 and as it is a requirement of the
Community legal order that Community law
must be applied uniformly and at the same
time, 35 it follows that, no matter when the
State transposes the Directive into its domes­
tic legal system, the transposition must apply
from the date prescribed in the Directive.
Thus, when the Directive provides for indi­
viduals to enjoy a certain advantage, that
advantage must be accorded with retroactive
effect.
57. This view is confirmed in the case-law of
the Court. Certain judgments interpreting
Directive 79/7 36 and in particular Article 4,
which lays down the principle of equal treat­
ment of men and women, and Article 8,
which requires all the provisions necessary
to comply with the Directive to be adopted
by a specified date, namely 23 December
1984, are significant. In a preliminary ruling
on the question whether it is compatible
with that Article for certain belated national
implementing measures to be given retroac­
tive effect, 37 the Court stated in its judgment
in Dik: 38
'As the Commission has rightly stressed, if
national implementing measures are adopted
belatedly, namely after the expiry of the
period in question, the simultaneous entry
into force of Directive 79/7 in all Member
States is ensured by giving such measures
effect retroactively as from 23 December
1984.'
33 — Sec, in this connection, point 77 of the Opinion of Advo­
cate General Léger in Case C-5/94 Hedley Lomas (cited in
footnote 22).
34 — See point 38 above.
35 — See point 40 above.
36 — Council Directive 79/7/EEC of 19 December 1978 on the
progressive implementation of the principle of equal treat­
ment for men and women in matters of social security (OJ
1979 L 6, p. 24).
37 — Relating in particular to transitional provisions which dis­
criminated against women.
38 — Case 80/87 Dik and Others v College van Burgemeester en
Wethouders Arnhem and Winterswijk [1988] ECR 1601. See
also Case C-208/90 Emmott v Minister for Social Welfare
and the Attorney General [1991] ECR I-4269, paragraph 4
in conjunction with paragraph 24.
I - 3988
BONIFACI AND OTHERS v INPS
58. However, while such retroactive effect
meets a requirement of the Community legal
order, the validity of that effect is subject to
certain conditions. In its judgment in Dik,
the Court stated in this connection in answer
to the question submitted by the national
court:
'It must nevertheless be made clear that such
belatedly adopted implementing measures
must fully respect the rights which Article
4(1) has conferred on individuals in a Mem­
ber State as from the expiry of the period
allowed to the Member States for complying
with it ...' (paragraph 14). 39
'The answer to the ... question must there­
fore be that Article 8 of Directive 79/7 must
be interpreted as meaning that a Member
State which adopts implementing measures
after the expiry of the period prescribed by
the Directive may fix the date of their entry
into force retroactively to the date of expiry
of that period, provided that the rights which
Article 4(1) of the Directive confers on indi­
viduals in the Member States as from the
expiry of the said period are respected'
(paragraph 15).
59. It is clear from the last two points that
an essential prerequisite for the validity of
retroactive effect is the validity of the mea­
sures which are intended to be retroactive. In
other words, the retroactive effect of belated
implementing measures is valid in so far as
and provided that the measures themselves
comply with the Directive. It follows, as the
points made above indirectly but clearly
imply, that a national court ruling on the
validity, of retroactive implementing mea­
sures must decline to apply a retroactive
measure that does not comply with the
Directive. 40
Full implementation
60. Secondly, the retroactive implementation
must be full, in the sense that it must ensure
that those who are deprived of the rights
conferred by the Directive are placed in the
position, in fact and in law, that they would
have occupied had the Directive been trans­
posed into the domestic legal order within
the prescribed period.
61. In fact, as the Court emphasized in para­
graph 15 of the judgment in Dik, 41cited
above, the retroactive effect of belated imple­
menting measures is valid provided that 'the
rights which ... the Directive confers ... as
from the expiry of the (prescribed) period'
are fully respected.
39 — This second point was made again in Case C-377/89 Cotter
and McDermott v Minister for Social Welfare and Attorney
General [1991] ECR I-1155, paragraph 25, and Case
C-343/92 De Weerd, née Roks, and Others v Bestuur van
de Bedrijfsvereniging voor de Gezondheid, Geestelijke en
Maatschappelijke Belangen and Others (Roks) [1994]
ECR I-571, paragraph 20.
40 — This is even more clear from the judgment in Roks (cited in
the preceding footnote), paragraphs 18, 20 and 25.
41 — See point 57 above.
I - 3989
OPINION OF MR COSMAS — JOINED CASES C-94/95 AND C-95/95
62. The rights at issue in Dik, as in Cotter
and McDermott and Roks, 42were rights
denied to women as a result of the delay in
adopting implementing measures but
enjoyed by men during the period in which
Directive 79/7 was not implemented. In
those cases therefore, in view of the direct
effect of Article 4 of Directive 79/7, 43 the
setting aside of the implementing measure
that was incompatible with the Directive
meant that women were automatically
entitled to have the same rules applied to
them as men, since 'where the directive has
not been implemented, those rules remain
the only valid point of reference'. 44
63. However, in a case where the Directive
does indeed confer a certain advantage but
its provisions do not have direct effect and
cannot therefore be relied upon during the
period when it has not been implemented, 45
the only right secured to those entitled dur­
ing that period is the right to reparation
based on Community law, to which I have
already referred. 46
According to the case-law of the Court, such
reparation must be appropriate in that it
must allow full compensation to be made
for the loss and damage sustained by the
claimants as a result of the failure to com­
ply. 47 It must therefore comprise, first, as its
'capital' component, any advantage whose
content can be determined sufficiently pre­
cisely on the basis of the provisions of the
Directive alone 48and, second, any conse­
quential claims such as interest, 49loss of
profit, 50or other more specific forms of
compensation that may be available under
domestic law 51for the purpose of making
good subsequent loss and damage suffered
by the persons concerned in the period dur­
ing which the State failed to act.
64. In determining the advantage provided
for by the Directive and according it retroac­
tive effect in its belated implementing mea­
sures, the State is essentially granting those
entitled only the 'capital' component of the
compensation to which they are entitled for
the period during which it had failed to
transpose the Directive. But the right to
reparation is safeguarded in Community law
to its full extent.
Therefore, and this is the first conclusion to
be drawn from the foregoing considerations,
if retroactive implementation is to be 'full' in
42 — See footnote 39.
43 — See Dik (cited in footnote 38), paragraph 8, and Roks (cited
in footnote 39), paragraph 18.
44 — See Cotter and McDermott and Roks (cited in footnote 39),
paragraph 18 of the judgments.
45 — As, in the cases under consideration, the provisions of
Directive 80/987 (see Francovich I (cited above), para­
graph 26).
46 — See point 46 et seq. above.
47 — See Case C-271/91 Marshall v Southampton and South West
Hampshire Area Health Authority [1993] ECR I-4367,
paragraphs 31 and 32, and Brasserie du Pêcheur (cited
above), paragraph 82.
48 — See Francovich I (cited above), paragraph 17, and point 51
above.
49 — See Marshall (cited in note 47), paragraphs 31 and 32.
50 — See Brasserie du Pêcheur (cited above), paragraph 87.
51 — Such as the exemplary damages available under English law
(see Brasserie du Pêcheur (cited above) paragraph 89).
I - 3990
BONIFACI AND OTHERS v INPS
the sense described, it must include both the
grant, with retroactive effect, of the advan­
tage provided for in the Directive and com­
pensation to those entitled for any additional
loss and damage they may have suffered as a
result of being denied that advantage at the
proper time.
65. The second conclusion, with respect to
the said safeguarding of the right to repara­
tion, is that the advantage now conferred
with retroactive effect must not be less than
the 'capital' component of the compensation
payable in the event of failure to transpose
the Directive (that is to say, less than the
advantage as it would have been deter­
mined had retroactive implementation not
occurred).
Express implementation
66. Thirdly, the full and retroactive imple­
mentation I have just described must be
express, that is to say it must be effected by
means of clear and express provisions, with­
out loopholes, which will have the same legal
force as the implementing provisions cover­
ing the future.
67. In this connection, it should be remem­
bered that the Court of Justice has consis­
tently held that:
'the provisions of a directive must be imple­
mented with unquestionable binding force
and with the specificity, precision and clarity
required in order to satisfy the requirement
of legal certainty', 52
'... so that, where directives are intended to
create rights for individuals, they can ascer­
tain the full extent of those rights and, where
necessary, rely on them before the national
courts.
So long as a directive has not been properly
transposed into national law, individuals are
unable to ascertain the full extent of their
rights. That state of uncertainty for individu­
als subsists even after the Court has deliv­
ered a judgment finding that the Member
State in question has not fulfilled its obliga­
tions under the directive and even if the
Court has held that a particular provision or
provisions of the directive are sufficiently
52 — See Dillenkofer (cited above), paragraph 48, and Case
C-59/89 Commission v Germany [1991] ECR I-2607, para­
graph 24.
I - 3991
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
precise and unconditional to be relied upon
before a national court.
Only the proper transposition of the direc­
tive will bring that state of uncertainty to an
end and it is only upon that transposition
that the legal certainty which must exist if
individuals are to be required to assert their
rights is created.' 53
68. For the same reason, those principles
must also apply to retroactive implementa­
tion of the Directive. It is in my view obvi­
ous that, if the Member State does not make
the full and retroactive implementation of
the Directive, as described above, known to
all its citizens by means of clear and express
measures, those concerned cannot know that
the Directive has conferred rights on them,
nor a fortiori the precise extent of those
rights, so as to be able to assert them effec­
tively before the national authorities, either
by means of an action for compensation or
in some other way.
69. The foregoing observations relate to the
substantive conditions for correct retroactive
implementation. The procedural conditions
for compensating those entitled are governed
by national law but they must not be less
favourable than those relating to similar
domestic claims and must not be such as to
make it impossible or excessively difficult to
obtain reparation. There is nothing in the
order for reference that calls for a more
detailed examination of the question. I shall
therefore confine myself to that general
observation, but will develop my views on
the subject in my Opinion of today's date in
the related case, Case C-261/95 Palmisani.
Review of retroactive implementation
70. There remains the problem of review of
the retroactive measures implementing the
Directive and, in particular, the problem of
the consequences of failure to observe the
principles mentioned above. If it is accepted
that those principles, which apply to the ret­
roactive implementation of the Directive, are
principles of Community law, then the con­
sequences of failure to observe those prin­
ciples are likewise a problem of Community
law, on which the Court of Justice has juris­
diction to give a ruling. Subject to that reser­
vation, it is for the national courts to review
the validity of national implementing mea­
sures.
71. Those consequences, most of which have
already been set out and examined in the
53 — Case C-208/90 Emmott [1991] ECR 1-4269, paragraphs 19,
21 and 22. Sec also the judgments in Steenhorst-Neerings
(cited in footnote 13), paragraph 19, and Case C-410/92
Johnson v Chief Adjudication Officer [1994] ECR 1-5483,
paragraph 25.
I - 3992
BONIFACI AND OTHERS v INPS
judgment in Dik, depend on the nature of
the principle that has been breached. Thus, if
the State has adopted measures to implement
the Directive without expressly stating that
they have retroactive effect, the national
court must in principle interpret them in the
light of the principles of Community law
described above. 54 So in cases where the
national court, making use of the margin for
interpretation available to it under national
law, concludes that retroactive effect is pre­
cluded, those with claims that fall within the
period concerned (that is to say, between the
expiry of the period allowed for implementa­
tion and the adoption of transposition mea­
sures) must be recognized as having a right
to reparation arising from the State's failure
to adopt any implementing measures, pro­
vided that they meet the conditions laid
down in the judgment in Francovich I. 55
72. In cases where the State defines the
advantage conferred by the Directive (using
its discretion, where necessary, to choose
among a number of options, etc.) and adopts
a measure expressly giving retroactive effect
to that advantage, it must be considered
whether the other two conditions are met.
73. It must first be ascertained, on the basis
of the foregoing observations, whether the
retroactive effect is valid. To that end, it must
be considered whether the measure adopted
is valid in itself, that is to say whether or not
it complies with the provisions of the Direc­
tive.
If it does, the retroactive effect is in principle
valid, on condition that the advantage
expressly conferred is not, in any event, infe­
rior to the advantage that can be determined
on the basis of the provisions of the Direc­
tive alone. 56
If it does not, inasmuch as it does not com­
ply with the Directive, the measure adopted
cannot apply either to the future or to the
past. Consequently, there can be no retroac­
tive effect.
74. Lastly, the State may choose, as a
method of belated implementation, to deter­
mine the compensation for the period in
which the Directive was not transposed. In
that case, it is important to determine the
'capital' component of the compensation, in
relation to the advantage the Directive seeks
to confer, since any consequent claims are
dependent on that main claim. 57 To be more
precise, in cases where the determination of
the 'capital' component of the compensation
is accompanied by a decision to give retroac­
tive effect to the advantage expressly deter­
mined, the considerations contained in the
preceding paragraph will apply mutatis
mutandis.
54 — See Francovich I (cited in footnote 2), paragraph 39, and
Faccini Dori (cited in footnote 28), paragraph 27.
55 — See point 49 above.
56 — See point 65 above. In cases where the Directive sets a
lower limit, the conditions logically coincide because it is a
condition for the validity of the provision itself that it must
not, in any event, be below the minimum limit prescribed.
57 — See point 63 above.
I - 3993
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
It follows that the compensation established
in the implementing measures cannot be
lower than the compensation due in the
event of failure to transpose the Directive.
75. I come now to the measures at issue,
which transposed Directive 80/987 into Ital­
ian law and determined the compensation for
the period during which it was not trans­
posed.
76. In those measures, as already stated,58
the Italian legislature first established the
guarantee to be accorded to employees
thereafter on the basis of the Directive
(Article 2, paragraphs 1 to 6, of the Decreto
Legislativo), thereby complying with the
Directive thereafter. It then proceeded, by
reference to those provisions, to determine
also the compensation to be paid for the
period during which the Directive was not
transposed (Article 2, paragraph 7), thereby
complying with the Directive retroactively.
In fact, in so far as this second provision
refers for the purpose of determining the
compensation to the provisions determining
the guarantee to be accorded thereafter, it
essentially accords the same guarantee, albeit
retroactively, to those whose entitlement
related to the period of the infringement.
77. It follows from the foregoing consider­
ations that, if this method of determining the
compensation is to be valid, the guarantee
expressly determined and the compensation
based on that guarantee must not fall short
of the 'capital' component of the compensa­
tion and the full amount of the compensa­
tion, respectively, that may be determined on
the basis of the provisions of the Directive
alone. It is therefore necessary, first, to ascer­
tain what guarantee the Directive affords to
employees and what compensation they can
claim if the Directive is not transposed
within the prescribed period.
Directive 80/987
78. The object of the Directive at issue,
whose main points I will recapitulate, 59 is to
approximate the laws of the Member States
relating to the protection of employees in the
event of the insolvency of their employer
and for that purpose it lays down in particu­
lar specific guarantees for the payment of
employees' outstanding claims. 60
To that end, it guarantees payment of
employees' outstanding claims relating to
pay prior to a given date (Article 3(1)).
58 — See point 16 et seq. above.
59 — The relevant provisions are given in full under points 5 to
10 above.
60 — Case C-53/88 Commission v Greece [1990] ECR I-3917,
paragraph 2.
I - 3994
BONIFACI AND OTHERS v INPS
That date must be one of three listed in
Article 3(2), at the choice of the Member
States.
In relation to the date they choose, the
Member States have the option to limit the
liability of guarantee institutions by estab­
lishing that payment of claims is ensured
only for a certain time within a reference
period prior to the date chosen. The mini­
mum times and reference periods for each of
the dates listed in Article 3(2) are laid down
in Article 4(2).
Moreover, Article 4(3) provides that Member
States may also set a ceiling to the guarantee
of payment, in order to avoid the payment of
sums going beyond the social objective of
the Directive.
79. In normal circumstances, 61 the Member
State may therefore determine the guarantee
by applying Article 3(2) in conjunction with
Article 4(2). To assess whether those Articles
can also be applied with retroactive effect, it
is necessary first to address certain problems
of interpretation they pose.
Meaning of Article 4(2)
80. Article 4(2) is not self-contained but
depends directly on Article 3(2) and the two
provisions will therefore be considered
together.
The key point for the purposes of both pro­
visions is the date of the onset of the
employer's insolvency. The reason for this is
that that date is either the starting-point for
calculating a reference period (cf. Article
3(2), first indent, and Article 4(2), first
indent) 62 or the date from which a reference
period may begin (cf. Article 3(2), second
indent, and Article 4(2), second indent). 63
81. It appears from the order for reference
that, according to the national measures
transposing the Directive as interpreted by
the Italian courts, the date of the declaration
of insolvency is regarded as the date of the
onset of the employer's insolvency and also
the starting-point for calculating the guaran­
tee to be accorded within the meaning of the
first indent of Article 4(2) of the Directive.
61 — That is to say when measures to implement the Directive
have been adopted within the prescribed period.
62 — Article 3(2), first indent, also sets a reference period, which
has a beginning but no definite end. The reference period
mentioned in Article 4(2), first indent, on the contrary, has
the same starting point but may be limited to a maximum
of 6 months.
63 — In these cases, the date of the onset of the employer's insol­
vency marks the end of the reference period.
I - 3995
OPINION OF MR COSMAS — JOINED CASES C-94/95 AND C-95/95
82. The parties in the main proceedings
claim in their observations that, in taking
that view, the Italian legislature was in
breach of Articles 2, 3 and 4 of the Directive,
under which the actual date on which pay­
ments ceased, which is much earlier than the
date of the judicial declaration of insolvency
or even the start of the judicial proceedings
leading to that declaration, must be regarded
as the date of the onset of the employer's
insolvency. They add that this decision on
the part of the Italian legislature, combined
with notable delays in the course of the rel­
evant proceedings in Italy, means that
through no fault of their own their claims do
not fall within the reference period pre­
scribed by Italian law.
83. The Commission endorses that view. It
also points out, citing paragraph 25 of the
Court's judgment in Case C-53/88 Commis­
sion v Greece, 64 that such a de facto situation
necessarily predates the judicial declaration
of insolvency.
84. Although it is not expressly mentioned
in the questions submitted by the national
court, the problem of determining the date
of the onset of the employer's insolvency is
directly connected with the problems raised
by the national court and must be addressed
before they can be answered. I therefore pro­
pose to state my position on the subject.
85. The views of the plaintiffs and the Com­
mission' cannot be accepted.
86. As the second recital to the Directive
implies and as the Court had occasion to
point out in its judgment of 9 November
1995 in Francovich 65 (hereinafter 'Francov-
ich II'), in adopting the Directive the Com­
munity legislature had to overcome the
objective difficulties presented by the adop­
tion of Community harmonizing provisions
in general and the drawing-up of common
rules on the protection of employees in the
event of the insolvency of their employer, in
particular. This is due partly to the diversity
of the legal systems in force in the Member
States and the impossibility of finding a
commonly accepted concept of insolvency.
These difficulties clearly prompted the Com­
munity legislature to decide for itself, in
Article 2(1) of the Directive, when an
employer is to be deemed to be in 'a state of
insolvency'. This made it impossible for the
Member States and in general for those
responsible for implementing the Directive
to assign to the concept of insolvency, in the
light of other factors, a meaning different
from that laid down in that Article. 66 That
phrase has, in fact, a 'specific meaning' in the
Directive,67 in that Article 2(1) expressly
states that that concept applies 'for the pur­
poses of this Directive'. Thus, the Directive
64 — See footnote 60 above.
65 — Case C-479/93 Francovich v Italian Republic [1995] ECR
I-3843, paragraphs 25-27.
66 — See also Article 2(2) of the Directive, which contains a list
of the terms that can lawfully be given a specific definition
by the Member States.
67 — Sec Francovich II (cited in footnote 65), paragraph 19.
I - 3996
BONIFACI AND OTHERS v INPS
recognizes one concept of insolvency, which
is defined in Article 2(1). Consequently,
'insolvency' or the 'date of the onset of the
insolvency' is the date from which the
employer is 'in a state of insolvency' within
the meaning of Article 2(1).
87. That view is confirmed by the case-law.
Thus, according to the abovementioned
judgments in Francovich I (paragraph 14)
and Francovich II (paragraph 17), in order to
determine whether a person should be
regarded as intended to benefit under the
Directive, a national court must first verify
whether the person concerned is an
employed person and is not excluded from
the scope of the Directive '... and then ascer­
tain whether a state of insolvency as pro­
vided for in Article 2 of the Directive exists',
and the judgment in Francovich II adds that:
'It is clear from the terms of Article 2 that in
order for an employer to be deemed to be in
a state of insolvency, it is necessary, first, that
the laws, regulations and administrative pro­
visions of the Member State concerned pro­
vide for proceedings involving the employ­
er's assets to satisfy collectively the claims of
creditors; secondly, that employees' claims
resulting from contracts of employment or
employment relationships may be taken into
consideration in such proceedings; thirdly,
that a request has been made for the pro­
ceedings to be opened; and, fourthly, that the
authority competent under the said national
provisions has either decided to open the
proceedings or established that the employ­
er's undertaking or business has been defini­
tively closed down and that the available
assets are insufficient to warrant the opening
of the proceedings' (paragraph 18).
88. It follows from Article 2(1) of the Direc­
tive, as interpreted in conjunction with the
above paragraph from the judgment in Fran­
covich II, first, that the concept of insol­
vency is a legal concept defined in the Direc­
tive and is not the same as a de facto
situation such as the cessation of payments 68
or the employer's inability to fulfil his obli­
gations. 69
68 — It should be noted that, instead of the phrase 'état
d'insolvabilité' (state of insolvency), the phrase 'état de ces­
sation des paiements' (literally, 'state of cessation of pay­
ments', but rendered in the English version as 'insolvent')
appears as a rule in the French version of the proposal for a
Directive submitted by the Commission to the Council on
13 April 1978 (OJ 1978 C 135, p. 2). The fact that the latter
phrase was abandoned in the final text of the Directive sup­
ports the view taken in this Opinion. See also point 15 of
my Opinion in Francovich II.
69 — Such situations may, moreover, vary considerably depend­
ing on the case and the Member State concerned with the
result that it becomes impossible to ensure the general and
uniform application of Community law — the very situa­
tion that the Community legislature sought to avoid. Also,
leaving aside cases of simulated bankruptcy, a 'de facto situ­
ation' is not the same as a definite date, which can be taken
as a starting point for determining the rights of employees,
and such a situation is consequently a source of legal uncer­
tainty.
It is for the competent authority to decide, in accordance
with Article 2(1) of the Directive, whether the conditions
provided under national law for opening proceedings to
satisfy collectively the claims of creditors (for example, ces­
sation of payments, etc.) have been met.
I - 3997
OPINION OF MR COSMAS — JOINED CASES C-94/95 AND C-95/95
For the rest, de facto situations such as those
I have mentioned must of necessity precede
the request for the opening of proceedings to
satisfy collectively the claims of creditors,
which in turn is one of the conditions for the
onset of the state of insolvency within the
meaning of Article 2(1).
89. The opposite view is not borne out by
paragraph 25 of the judgment of 8 Novem­
ber 1990 in Commission v Greece, cited by
the Commission. 70 In response to an argu­
ment advanced by the Hellenic Republic to
the effect that Article 205 of the Code of Pri­
vate Maritime Law 71 affords protection
equivalent to that resulting from Directive
80/987, the Court ruled in the abovemen-
tioned paragraph as follows:
'... the protection provided by Article 205 ...
applies only in the event of sale by auction
and therefore not, as the Directive requires,
from the onset of the employer's insolvency,
which may be much earlier'.
Since sale by auction, as a measure designed
to satisfy collectively the claims of creditors,
must occur after the cessation of payments
and after the measure initiating that pro­
cedure (i. e., under Greek law, the judicial
declaration of. insolvency), the Commission's
view is not borne out by the paragraph in
question.
90. It also follows from that Article that the
conditions it lays down are cumulative. The
fact that a request has been made for the
opening of proceedings to satisfy collectively
the claims of creditors is therefore not suffi­
cient; a decision is also required from the
authority which is competent under national
law to open the proceedings. So when, as in
the present case, the authority which is com­
petent under national law is the judicial
authority, it cannot possibly be held that the
Member State is in breach of the Directive in
deciding that the 'insolvency' or 'state of
insolvency' or 'onset of the insolvency' exists
from the time when the relevant judicial dec­
laration of insolvency is issued by that auth­
ority.
91. It is true that the lapse of time between
the cessation of payments or the request for
the opening of proceedings and the issuing
of the decision by the competent authority
(for instance the judicial declaration of insol­
vency) is likely to mean that some employ­
ees' claims will not fall within the reference
period established by the Member State,
70 — See footnote 60 above. The judgment was delivered in a
case brought by the Commission against the Hellenic
Republic for failure to adopt measures to implement Direc­
tive 80/987/EEC within the prescribed period.
71 — That Article gives seamen's claims second priority after, in
particular, judicial costs and the Treasury's claims in the
event of sale of the vessel by auction (sec paragraph 24 of
the judgment).
I - 3998
BONIFACI AND OTHERS v INPS
as the plaintiffs in the main proceedings
contend. 72
92. That argument is irrelevant for the pur­
poses of the present case. Those facts would
have some bearing if, within the meaning of
the Directive, they had independent legal
consequences and in particular if they
marked the beginning or end of the reference
period, but that is not the case. They mark
neither the beginning (see points 88 and 90
above) nor the end because, in the case with
which we are concerned (Article 4(2), first
indent), the end of the reference period is a
precise moment unconnected with the facts
in question.
93. What the plaintiffs in the main proceed­
ings are claiming is that during the reference
period they had no employment relationship
with the employer giving rise to outstanding
claims covered by the guarantee. Payment of
the guarantee provided under the Directive
requires that there be an effective employ­
ment relationship with the employer from
which outstanding claims on the part of the
employees arose. However, there is not nec­
essarily any connection between the exist­
ence or otherwise of an employment rela­
tionship and the cessation of payments or
the request for a declaration of insolvency —
matters that are regarded as relevant by the
plaintiffs and the national court. There is, in
fact, nothing in the documents in the case to
show that those facts automatically indicate
the termination of the employment relation­
ship. 73 On the contrary, as the plaintiffs
themselves point out in their observations,
they have outstanding claims in the main
proceedings which do fall within the refer­
ence period laid down under Italian law and
which also extend beyond a period of three
months. 74
94. To conclude, whether or not some
employees' claims fall within the reference
period is a matter of chance. It is also a nec­
essary result of choosing a particular date or
period as decisive for the purpose of legal
consequences. That choice is itself the result
of an attempt to reconcile conflicting inter­
ests and it represents a compromise that is
bound to favour some and not others.
95. It follows from the foregoing consider­
ations that whether or not employees are
aware that third parties have opened pro­
ceedings with a view to having their
employer declared insolvent, whether such
proceedings happen to last so long that they
extend beyond the reference period, and
whether or not employees bear any respon­
sibility for the length of such proceedings,
are matters of no consequence for the pur­
poses of the present case.
72 — Sec point 82 above.
73 — Only if that were so would there be any point in determin­
ing whether or not the facts fell within the reference period.
74 — See point 20 above. It should be noted that in the similar
case of Palmisani (see point 69 above) the plaintiff was
employed by the employer up to the date on which the
employer was declared insolvent.
I - 3999
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
Validity of Article 4(2)
96. In particular, those factors do not affect
the validity of Article 4(2) of the Directive in
respect of compliance with the principles of
equal treatment and non-discrimination.
97. As stated in the judgment in Francovich
II, in view of the difficulty of drawing up
common rules on the protection of employ­
ees in the event of the insolvency of their
employer 75 the Directive represents a first
step towards harmonization and conse­
quently has limited objectives. Thus, the fact
that it protects only a certain class of
employees (namely those whose employers
are subject to proceedings to satisfy collec­
tively the claims of creditors) and thus differ­
entiates between employees, does not consti­
tute a breach of the principle of equal
treatment since such differentiation is justi­
fied by objective conditions. 76
98. The same view should, I suggest, be
taken in the present case. The fact that
Article 4(2) of the Directive defines a refer­
ence period within which some employees'
claims are likely to be included while others,
for reasons beyond their control, are
excluded does indeed differentiate between
employees but that differentiation is justified
by the requirements of gradual harmoniza­
tion and, in particular, by the requirement
that provision be made to enable hitherto
unknown provisions to be introduced gradu­
ally into the domestic legal systems of the
Member States.
Minimum guarantee within the meaning of
the Directive
99. As Article 4(2) can lawfully be used to
limit the guarantee provided for by the
Directive, the content of that guarantee must
be examined.
As the Court has held and as the Italian
and United Kingdom Governments and the
INPS rightly emphasize, the Directive
75 — See point 86 above.
76 — Sec paragraphs 22-24 of the judgment.
I - 4000
BONIFACI AND OTHERS v INPS
provides a minimum protection for employ­
ees 77 in the form of a minimum guarantee
that can be determined under the provisions
of the Directive. 78
100. According to the judgment in Francov-
ich I:
'... it is possible to determine the minimum
guarantee provided for by the Directive by
taking the date whose choice entails the least
liability for the guarantee institution. That
date is that of the onset of the employer's
insolvency, since the two other dates, that of
the notice of dismissal issued to the
employee and that on which the contract of
employment or the employment relationship
was discontinued, are, according to the con­
ditions laid down in Article 3, necessarily
subsequent to the onset of the insolvency
and thus define a longer period in respect of
which the payment of claims must be
ensured' (paragraph 19).
'The possibility under Article 4(2) of limiting
the guarantee does not make it impossible to
determine the minimum guarantee. It follows
from the wording of that Article that the
Member States have the option of limiting
the guarantees granted to employees to cer­
tain periods prior to the date referred to in
Article 3. Those periods are fixed in relation
to each of the three dates provided for in
Article 3, so that it is always possible to
determine to what extent the Member State
could have reduced the guarantee provided
for by the Directive depending on the date
which it would have chosen if it had trans­
posed the Directive' (paragraph 20).
101. However, the same judgment also
stated that, even though the provisions in
question of the Directive are sufficiently pre­
cise and unconditional as regards the deter­
mination of the persons entitled to the guar­
antee and as regards the content of that
guarantee, those elements are not sufficient
to enable individuals to rely on those provi­
sions before the national courts because
those provisions 'do not identify the person
liable to provide the guarantee, and the State
cannot be considered liable on the sole
ground that it has failed to take transposition
measures within the prescribed period'
(paragraph 26). The Court accordingly
stated, in reply to the question submitted by
the national court, in which it sought to
determine whether a private individual is
entitled to rely directly on the precise and
unconditional provisions of the Directive in
proceedings against the State to obtain the
guarantees which the State itself must pro­
vide, that '... the provisions of Directive
80/987 which determine the rights of
employees must be interpreted as meaning
that the persons concerned cannot enforce
those rights against the State before the
national courts where no implementing mea­
sures are adopted within the prescribed
period' (paragraph 27).
77 — See Case 22/87 Commission v Italy (cited in point 12
above), paragraph 23.
78 — See Francovich I (cited above), paragraph 19.
I - 4001
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
Content of reparation for failure to transpose
the Directive
102. However, if reparation presupposes
rights that can be determined on the basis of
the Directive and if the rights provided for in
Directive 80/987 can be determined on the
basis of the provisions of that directive but
individuals cannot rely on them before the
national courts, on what criteria are those
courts to determine what compensation is
payable? The question arises in view of the
fact that — in the same case — the Court,
having repeated that 'the result required by
that directive entails the grant to employees
of a right to a guarantee of payment of their
unpaid wage claims' and that 'the content of
that right can be identified on the basis of
the provisions of the directive' (paragraph
44), went on to say
'Consequently, the national court must, in
accordance with the national rules on liabil­
ity, uphold the right of employees to obtain
reparation of loss and damage caused to
them as a result of failure to transpose the
directive' (paragraph 45).
103. Advocate General Mischo, in point 80
of his Opinion in Francovich I, argued in
this connection that in the case of directives
such as Directive 80/987, whose provisions
are not directly applicable, '... in an action
for damages the national court has a margin
of discretion which it does not have where
the directive has direct effect. Once it is clear
that the plaintiff is a member of the class of
persons whose interests the directive is
intended to protect, the national court may
assess damages "ex aequo et bono", while at
the same time relying as closely as possible
on the provisions of the directive. It will
consider the options provided for in Article
3 and the possibilities of derogation listed in
Article 4, and will seek on that basis to arrive
at an amount of compensation which it con­
siders fair.'
104. I take essentially the same view, albeit
with the following observation. I consider
that the national court has a margin of dis­
cretion but that margin is not unlimited. The
Directive sets a minimum level 79 which is
binding both on the State, which may not
disregard it even if the directive was trans­
posed within the prescribed period, and on
the national courts. That minimum can only
represent a minimum right for employees,
which the reparation must guarantee. Were it
to be admitted that the reparation could be
less than that minimum, the State would
profit from its failure to implement the
Directive and would be encouraged to repeat
the omission — which would be unaccept­
able. Moreover, the reparation would ulti­
mately become purely symbolic if it did not
79 — With regard to the method of calculating the guarantee.
I - 4002
BONIFACI AND OTHERS v INPS
guarantee that minimum. The reparation
must therefore guarantee at least the mini­
mum.
105. That minimum level is laid down in
Article 4(2). In that provision, the Commu­
nity legislature established the minimum
level of the guarantee to be provided by the
Member States in relation to the date they
choose as the start of the reference period.
However, unlike Article 3(2), Article 4(2)
does not provide for one minimum guarantee
to be set (i. e. a guarantee that will necessar­
ily entail a lower liability than any other) but
offers three possible minimum guarantees. 80
106. Those three guarantees are equivalent,
in that all three are allowed by the Directive.
Moreover, in so far as they are based on dif­
ferent methods of calculation, they are not
comparable for the purpose of determining
which of them is the lowest. Consequently,
the national court, bearing in mind the low­
est guarantee resulting from each of the three
cases, must award ex aequo et bono the com­
pensation that is appropriate in each case in
accordance with the national rules on liabil­
ity. Clearly, of course, if, in similar cases, the
national law imposes a higher level of repara­
tion (if, for example, where there are a num­
ber of options it requires the choice of the
one that is most favourable to the employee),
the compensation will be calculated on that
basis. 81
107. However, the task of the national court
is facilitated when, as in the present case, the
national legislature has stated with retroac­
tive effect which method it wishes to adopt
for calculating the guarantee on the basis of
the combined provisions of the two Articles
80 — This is because, in Article 3(2), the guarantee depends on a
variable, namely the date that marks the beginning of the
reference period. A shorter reference period implies fewer
claims from employees and consequently a lighter burden
for the guarantee institution. So, as the shortest reference
period is the period starting from the date of the onset of
the employer's insolvency, the guarantee based on that date
must necessarily be the lowest.
Under Article 4(2), on the other hand, the guarantee result­
ing from each of the three methods of calculation depends
on three variables which do not have constant values in
every case (namely the date on which the reference period
begins, the length of the reference period and the length of
the employment relationship in respect of which there are
outstanding claims).
Consequently, on the conditions laid down in Article 4(2),
it is by no means certain that choosing the date of the onset
of the employer's insolvency to mark the beginning of the
reference period (the first option) will mean that the guar­
antee institution has to pay less than it would have to if it
exercised the third option, for example. In fact, in the first
case, the reference period is shorter (six months) but the
guarantee payable is greater (guarantee for three months).
In the third case, the reference period is longer (18 months)
but the guarantee less (guarantee for eight weeks, i. e. two
months). 81 — See point 51 and footnote 29 above.
I - 4003
OPINION OF MR COSMAS —JOINED CASES C-94/95 AND C-95/95
mentioned above. 82 In that case, as I have
already explained, 83 the guarantee already
expressly laid down (and the compensation
calculated on the basis of that guarantee)
must not be lower 84 than the guarantee (and
the associated compensation) that would
result from the choice of the corresponding
option under the terms of the Directive
alone.
108. It follows from the foregoing consider­
ations that the national legislature must in
principle be held to comply with the Direc­
tive, irrespective of which of the three
options listed in Article 4(2) it chooses to
adopt for the purpose of determining the
guarantee when implementing the Directive.
Inasmuch as the provisions of that Article
can be taken into account in determining the
reparation for failure to transpose the Direc­
tive within the prescribed period, there is
generally speaking nothing to prevent the
national legislature from giving retroactive
effect to the guarantee already expressly laid
down on the basis of the above provision
and deciding that that guarantee is to serve as
the basis for calculating the compensation
payable for the period marked by the failure
to transpose the Directive within the pre­
scribed time-limit. 85
Article 4(3) of the Directive
109. While Article 4(2) can in principle be
given retroactive effect, the same is not true
of Article 4(3), which contains no specific
element that could, by itself, justify placing a
limit on employees' rights. Moreover, the
exercise of the option to set a ceiling on the
guarantee, within the meaning of that provi­
sion, presupposes that the Member State has
already exercised the option provided in
Article 4(2). Article 4(3) does not therefore
furnish any support for placing a retroactive
limit on the guarantee payable or, further, for
limiting any compensation that may be
determined on the basis of the provisions of
the Directive. 86
82 — See in this connection point 81 of the Opinion of Advocate
General Mischo, cited under point 103 above.
83 — See points 73 and 74 above.
84 — And, logically is not lower. See footnote 56 above.
85 — Unless — I must again emphasize — the national rules on
compensation provide for more generous compensation in
similar cases (see point 106 above). If the national law pro­
vides for compensation calculated on a higher basis (of
capital), then the transposition measures giving retroactive
effect to the Directive may in principle comply with the let­
ter of the Directive's provisions but they will conflict with
the principles of Community law which require the most
favourable national rules on liability to be applied. In that
case, in so far as they reduce compensation already guaran­
teed under Community law, they will be contrary to that
law and will have to be set aside in favour of the only 'valid
reference system' in the circumstances, namely the national
rules on non-contractual State liability.
86 — See Marshall (cited in footnote 14), paragraph 30.
I - 4004
BONIFACI AND OTHERS v INPS
V — Conclusion
In the light of the foregoing I propose that the reply to the questions referred to
the Court should be as follows:
(1) Where a Member State, in adopting measures to implement Directive 80/987
after the expiry of the period prescribed in Article 11, determines the repara­
tion payable for the period during which the Directive was not transposed
into national law, such reparation must not be lower than the reparation that
may be determined on the basis of the provisions of the Directive alone.
(2) Where a Member State, in belatedly adopting measures to implement the
Directive, exercises the option provided under Article 4(2) of the Directive to
determine the guarantee payable to employees, that provision must be inter­
preted as meaning that there is nothing to prevent the Member State from
deciding that the guarantee thus determined is to serve as the basis for calcu­
lating the reparation due for the period during which the Directive was not
transposed, on condition that that guarantee complies with the provisions of
the Directive, subject to the answer given in the preceding paragraph. The
exercise of the above option by the Member State does not depend on the
conduct, culpable or otherwise, of the employees.
(3) Examination of Article 4(2) of the Directive, as interpreted above, has revealed
no factor of such a kind as to affect its validity in the light of the principle of
equal treatment.
(4) Article 4(3) of the Directive must be interpreted as meaning that it offers no
basis for setting a ceiling on the reparation determined, in the belatedly
adopted measures transposing the Directive, as being payable for the period
during which the Directive was not transposed.
I - 4005